A.S. Ramadass vs N. Malathi

S.S. Subramani, J.—Petitioner in HMOP No. 26 of 1998 on the file of Subordinate Judge, Namakkal is the revision petitioner herein.

Petition filed by petitioner was one for divorce under Hindu Marriage Act. In that proceeding, respondent herein filed I.A. 31 of 1998 claiming

interim maintenance and expenses of litigation u/s 24 of the Hindu Marriage Act. It is averred in that petition that respondent is unable to maintain

herself and she has no source of income. According to her, she is a dependent on her parents. She further averred that her husband is getting very

good income, not less than Rs. 1,50,000/ - per annum and he got agricultural and non-agricultural properties, apart from possessing rig vehicles. It

is also said that taking into consideration the inflatory circumstances, she is entitled to separate maintenance of Rs. 1,500/- per month.

In the counter statement filed by petitioner, the same is seriously opposed. According to him, he has availed loan from various financiers and he

has no asset in his own name. According to him, for the purpose of his profession, he has borrowed amounts from various persons and he is

finding very difficult to maintain himself. He wanted the petition to be dismissed.

For the purpose of interlocutory application, oral and documentary evidence were taken by lower Court. Oral evidence consists of respondent

as P.W. 1 and an independent witness as P.W. 2. On the side of petitioner, D.Ws. 1 to 3 were examined of which D.W. 1 is petitioner himself.

Documentary evidence consist of Ex. A1 and Exs. B1 to B3.

After evaluating entire evidence, Trial Court came to the conclusion that respondent herein has no means of her own and petitioner herein is

having sufficient income. It awarded a sum of Rs. 900/- per month as interim maintenance with effect from the date of application and a direction

was given that the entire amount will have to be paid within a period of one month. The said order is under challenge in this revision petition.

Learned Judge of this Court ordered notice of motion and directed petitioner to deposit a sum of Rs. 3,000/- within the said period.

After receipt of notice, respondent also entered appearance and I heard the learned Counsels on both sides.

In a recent decision of Honourable Supreme Court reported in Rajathi Vs. C. Ganesan, Their Lordships were considering the scope of Section

125 of Code of Criminal Procedure, wherein, the wife is entitled to get maintenance if she is unable to maintain herself. Their Lordships considered

the scope of burden of proof in that case. It is held in that case that the statement of wife that she is unable to maintain herself is enough and it is for

the husband to prove otherwise. In para 7 of the Judgment, it is held thus :

... High Court did not consider the question if husband was having sufficient means. It rather unnecessarily put the burden on the wife to prove that

she was unable to maintain herself. The words ""unable to maintain herself"" would mean that means available to the deserted wife while she was

living with her husband and would not take within itself the efforts made by the wife after the desertion to survive somehow. Section 125 is enacted

on the premise that it is obligation of the husband to maintain his wife, children and parents. It will, therefore, be for him to show that he has no

sufficient means to discharge his obligation and that he did not neglect or refuse to maintain them or any one of them. High Court also observed that

the wife did not plead as to since when who was living separately. This is not quite a relevant consideration. Even though wife was unable to prove

that husband has remarried, yet the fact remained that the husband was living with another woman. That would entitle the wife to live separately

and would amount to neglect or refusal by the husband to maintain her. Statement of the wife that she is unable to maintain herself would be enough

and it would be for the husband to prove otherwise.

On going by Section 24 of the Hindu Marriage Act, I feel the same principle also could be applied and when the wife comes forward with an

application under that Act, and she says that she is unable to maintain herself and as no independent income for her support, it is for the opposite

party to prove the contrary.

In this case for the purpose of awarding maintenance evidence was also taken separately and after elaborately taking evidence, lower Court

came to the conclusion that respondent herein is not having any independent source of income to support her. That finding of the lower Court is not

liable to be interfered with. Merely because she is getting support from her parents, will not be a ground to reject her claim when it is the duty of

husband to maintain her.

Regarding quantum of maintenance, Honourable Supreme Court had occasion to consider how the same should be approached, and the same

is reported in Smt. Jasbir Kaur Sehgal Vs. District Judge, Dehradun and others, . In paragraphs 8 and 9 of the Judgment, Their Lordships held

thus :

8.......No set formula can be laid for fixing the amount of maintenance. It has, in the very nature of things, to depend on the facts and

circumstances of each case. Some scope for leverage can, however, be always there. The Court has to consider the status of the parties, their

respective needs, the capacity of the husband to pay having regard to his reasonable expenses for his own maintenance and of those he is obliged

under the law and statutory but involuntary payments or deductions. The amount of maintenance fixed for the wife should be such as she can live in

reasonable comfort considering her status and the mode of life she was used to when she lived with her husband and also that she does not feel

handicapped in the prosecution of her case. At the same time, the amount so fixed cannot be excessive or extortionate.........

The question then arises as to from which date the wife would be entitled to claim the enhanced amount of maintenance pendente lite. If the wife

has no source of income it is the obligation of the husband to maintain her and also the children of the marriage on the basis of the provisions

contained in the Hindu Adoptions and Maintenance Act, 1956. Her right to claim maintenance fructifies on the date of the filing of the petition for

divorce under the Act. Having thus fixed the date as the filing of the petition for divorce, it is not always that the Court has to grant the maintenance

from that date. The Court has discretion in the matter as to from which date maintenance u/s 24 of the Act should be granted. The discretion of the

Court would depend upon multiple circumstances which are to be kept in view. These could be the time taken to serve the respondent in the

petition; the date of filing of the application u/s 24 of the Act; conduct of the parties in the proceedings; averments made in the application and the

reply thereto; the tendency of the wife to inflate the income out of all proportion and that of the husband to suppress the same; and the like. There

has to be honesty of purpose in both the parties which unfortunately we find lacking in this case...

Taking into consideration the above law declared by Honourable Supreme Court, I do not think that any ground is made out for interference

u/s 115 of CPC in this case. Respondent is entitled to live according to the status of petitioner. From the evidence that has been adduced and

which has been relied on by the lower Court, it could be seen that petitioner herein is a big landlord having vast area of agricultural lands.

Respondent has stated that petitioner is getting annual income of Rs. 1,50,000/-. Petitioner has not stated anything in the counter as to the income

he gets. When he says that he has borrowed heavily, naturally it follows that borrowing must have also been made taking into consideration his

capacity to discharge the same. At the same time, petitioner herein has not proved by any documentary evidence that he is a debtor as alleged.

Lower Court in para 8 of the order has held that petitioner herein is having vast area of agricultural land and a building of his own. It is also proved

that one rig lorry has been sold for Rs. 18,00,000/- which shows the wealth of petitioner. Petitioner''s father was also examined as D.W. 3 and his

evidence also shows that petitioner is having independent source of income and is not dependent on family essence. The cumulative effect of entire

evidence shows that petitioner is having sufficient income to maintain his wife and quantum fixed by lower Court is only reasonable.

The revision is therefore without any merit and the same is dismissed. No costs. Consequently C.M.P. No. 8536 of 1999 is also dismissed.

I direct petitioner to deposit entire arrears after giving credit to the amount already paid within a period of two weeks from today. Future

maintenance as fixed by lower Court will have to be paid as and when it becomes due and at the time when the matter is taken up for trial, there

should be no arrears. Lower Court must satisfy itself that the maintenance amount has been fully paid to respondent and only thereafter case must

be taken up for trial.