Ded Raj vs Smt. Indira

Swatanter Kumar, J.—A suit was filed by Smt. Indira against her husband, the present petitioner for maintenance. She claimed return of her Istri dhan as well as interim maintenance. The application of the wife for interim maintenance was allowed by the learned Civil Judge, (Junior Division), Mohindergarh vide order dated 5.12.1997.

Aggrieved from the order, the husband has filed the present revision petition impugning the said order.

There is no dispute to the fact that the parties were married on 15.5.1995 at Village Bhalki Tehsil and District Mohindergarh, according to Hindu rites. For the purpose of consideration of this revision, other averred facts are hardly relevant except according to the wife, her husband is earning nearly 10,000-11,000/- rupees per month from the shop and has also agricultural income. While she is not having any source of income. According to the husband, he was ready to keep the wife.

Two contentions raised on behalf of the petitioner are (a) no interim maintenance could be awarded to the wife as it is not so postulated under any of the provisions of the Hindu Adoption and Maintenance Act, 1956 and (b) there was no material before the learned trial Court to fix the awarded amount of maintenance.

Both these contention are not well founded. Learned trial Court, in paragraph 4 of the judgment, has rightly relied upon the judgments of various High Court including this High Court rendered in the case of Kanwar Vishwa Jit Singh v. Smt. Nirmala Kanwar and Anr. 1991(99) P.L.R. 277 and the judgment of Delhi High Court in the case of Neelam Malhotra Vs. Rajinder Malhotra and Others, . It is a settled principle of law that under inherent powers vested in the courts u/s 151 C.P.C., which is applicable to such suit of maintenance, the court can grant relief to meet the ends of justice, even if such a relief is not specifically provided for in that statute or procedural law. The concept of maintenance being claimed by a spouse, who is unable to maintain herself, is not governed by the language of the statute as such, but it is certainly covered under the inherent powers of the courts. If the wife is unable to maintain herself and meet the litigation expenses, she cannot be deprived of her legitimate right of taking recourse of judicial process for paucity of money. The statute in question is a social legislation, which presupposes intents of the legislature and its obligation to the public at large. In view of the settled law, I am unable to see any merit in the first contention raised by the petitioner.

Coming to the second contention, the wife had made an averment that the husband is earning 10,000/- - 11,000/- rupees per month from his shop and has also agricultural income. This fact was denied by the husband. Except for a mere denial, the petitioner-husband had placed no document before the Court, which could show with some clarity and definiteness what was the source and extent of income available to the husband. It is true that primary burden of providing a fact lies on the party which pleads that fact. Serious controversies have to be determined during the course of the trial at the interim stage while dealing with an application u/s 24 of the Act. The court has to adopt a liberal attitude in regard to burden of proof. To my mind, at this interlocutory stage of the proceedings the parties are duty bond to disclose the best evidence in their power and possession. There is an abundant duty which is implicit in law on all parties to state true and correct facts and produce documentary evidence in support thereof when they approach the Court for seeking relief which they are entitled to in justice. Withholding of material evidence specially when in the normal affairs of things, the party ought to be in the knowledge of such facts and evidence having bearing on the matter, the Court may be justified even in drawing adverse inference.

In this regard, reference can be made to the case of Gurvinder Singh Vs. Harjit Kaur and Another,

" .... It is expected from every litigant irrespective of the fact whether he is seeking relief from the Court or not that he would state true and correct facts. There is not only implied but specific obligation upon every party who approaches the Court to verify the facts true to the knowledge and belief of the party specially in the cases of present kind where the Court has to take prima facie view keeping in mind the urgency of the matter regarding grant or refusal of maintenance. Primarily the onus has to be discharged by respective parties in support of the averments made in the application or replies the case may be. Concept of heavy burden of proof would be applicable during the trial where the parties have the liberty to lead oral and documentary evidence in support of their case. The court would be well Within its jurisdiction to draw adverse inference against a party who actually or attempt to withhold the best evidence and true facts from the Court with intention to frustrate the claim of others at this preliminary stage of proceedings .. . ."

As already noticed in the present case none of the parties have produced any documentary evidence to substantiate their averments in their respective pleadings. The learned trial Court has, therefore, worked out an amount payable to the wife on the basis that petitioner being an able person would be able to earn at least what a labourer or a workman is able to earn.

In this view of the matter, I am unable to see any error in the view taken by the learned trial court. Consequently, revision is dismissed. However, without any order as to costs.