Mrs. Madhu vs Parduman Singh Pundir

Swantanter Kumar, J.—I have heard the learned counsel for the parties.

In this petition, the petitioner has assailed the order dated 13.2.1996 passed by Additional District Judge, Kurukshetra. Vide this order, the Court had fixed interim maintenance of Rs. 300/- per month for the petitioner and had allowed litigation expenses to the tune of Rs. 1000/-. The only record before the trial Court was an application u/s 24 of the Hindu Marriage Act and reply thereto filed by the respondent.

It is averred in the application that the respondent was carrying on the business of oxygen gas agency and is earning more than Rs. 15,000/- per month. It was averred in para 2 of the application that the wife has no source of income. In reply to this application, it was stated that the wife has source of income as she is carrying on Beauty Parlour in Section 13 Urban Estate, Kurukshetra and is earning more than Rs. 3000/- per month. It was specifically admitted that the respondent was carrying on the business under the name of M/s Himalayan Gases & Co-Rurki (Harid-war). However, it was disputed that his income is Rs. 15,000/- per month, but no record of Income Tax returns was filed by the husband nor the assessment order was produced. Even books of accounts were not produced reflecting the alleged income of the husband. Even no evidence by way of affidavit was adduced to show that what was averred in para No.3. of the petition was not correct income. On the other hand the wife has also not filed rejoinder to the reply, to deny the fact that she was not running beauty parlour and was not having an income as stated in para No.2 of the reply. However, this has been disputed orally at the bar before me. Learned trial Court took income of Rs. 1500/- per month and awarded amount of Rs. 300/- per month on account of interim maintenance to the wife. Even if it is taken to be correct that the wife is carrying on some business, it cannot be a complete bar to effect the right of the wife to claim maintenance. However it will be a factor relevant for consideration to fix quantum of interim maintenance which should be awarded to the wife. It is well settled principle of law that the wife is a entitled to live and maintain herself in the same manner in which she would have maintained herself if she continues to stay with the husband. In other words, the wife is entitled the same status, facilities and financial social protection which she would have enjoyed if she had continued to be live with the husband. The present petition u/s 13 of the Hindu Marriage Act has been filed by the wife on the ground of cruelty which is pending before the trial Court. The obligation of the husband to maintain his wife is not moral one alone but it takes its original from the legislative direction incorporated in section 24 of the Hindu Marriage Act. It was for the husband to produce proper primarily evidence to show that he has deficient income particularly when the factum of carrying on business is admitted. Taking into consideration the fact that the wife might be earning to make her both ends meet and on the basis of income assessed by the trial Court, I feel that the amount of interim maintenance awarded by the trial Court to the wife is certainly not sufficient.

Various judgments have taken the view that the wife would even be entitled to 1/3rd of the salary/income of the husband, though no such hard and fast rule can be laid down, but it would depend upon the facts and circumstances of each case. Learned counsel for the petitioner has relied upon Usha v. Sudhir Kumar reported as (1974)76 P.L.R. 195 and Smt. Renu Jain v. Mahavir Prashad Jain AIR 1987 Delhi 43.

It would not be proper to believe that a person who is running aforestated business for a considerable period is earning only Rs. 1500/- per month. Having failed to produce before the Court the documents which ought to be normally in possession and custody of the respondent-husband, an adverse inference has to be drawn against the respondent to the advantage of the wife. To make an effort to live better life cannot be used as an instrument to deprive the wife of such benefits which she would be entitled to in the normal course of life. In the facts and circumstances of the case, this petition is allowed to the extent that the respondent-husband shall be liable to pay a sum of Rs. 500/- per month as interim maintenance to the wife during the pendency of the petition. Consequently the order of trial Court dated 13.2.1996 is modified to this extent. There shall be no order as to costs.