Purushottamdas vs Meeradevi

V.S. Sirpurkar, J.—The order granting maintenance to the original respondent/wife (non-applicant herein) and her son, pendente lite, is the subject-matter of this revision. By the instant order, the Trial Court awarded Rs. 2,000/- per month each in favour of the wife and the son. The Trial Court also awarded Rs. 2,500/- towards cost of the litigation.

The present applicant Purushottamdas filed a divorce petition before the Trial Court on various grounds. This petition was filed on 20.11.1990. The wife appeared and resisted the petition by filing a written-statement. However, thereafter, the wife came out with an application u/s 24 of the Hindu Marriage Act which was filed in August, 1992. This application came to be opposed by the husband. The wife had claimed in her application that she was driven out by the husband and she was required to stay separately alongwith her son Ram who was about 11 years old. She also contended that it was on account of the attitude of the husband that she could not cohabit with him. She contended that she was staying separately and had no source of earning for her livelihood and subsistance. She alleged that the husband is a wealthy businessman earning about Rs. 20,000/- per month. He having a business of ready made garments shop called ''friends'', he being the owner thereof. She prayed for maintenance of Rs. 5,000/- per month for herself and Rs. 3,000/- per month for her son. Thus, she claimed maintenance of Rs. 8,000/- per month. She also pointed out that the husband owned a palatial building worth about fifty lakhs rupees. She also prayed for the expenses of litigation and put forth a demand of Rs. 10,000/- for the same.

This application was opposed by the husband who denied that the wife was required to stay separately on account of any fault on his part. He denied that the wife had no source of earning for her livelihood. He asserted that the wife was having a shop in the name of ''Friends'', in which she was a partner alongwith her son from her previous husband. He claimed that the wife was earning her livelihood from the said shop. He claimed that shop was given to the wife only by himself and that the wife was not paying any charges even of the electricity for the shop. He denied all the other allegations that the wife was entitled to get Rs. 5000/- per month and that he was wealthy enough to give that much amount by way of maintenance. He also averred that the application was belated as it was filed only after the evidence in the main petition itself had commenced.

The Trial Court allowed the parties to lead evidence. The wife supported her application by way of her affidavit. The reply of the husband was also supported with by an affidavit. The statement made at the Bar in this Court, that the wife was called for cross-examination on the basis of her affidavit, while it is an admitted fact that the husband did not offer any oral evidence by entering the witness-box. He seems to have filed certain receipts, etc., to suggest that he was contributing towards the maintenance of the child by paying his school-fees, etc. The Trial Court found fault with the application but not to the extent of the prayer made in it. The Trial Court has granted Rs. 2,000/- per month for the wife and Rs. 2,000/- per month for the son. Thus, the total maintenance of Rs. 4,000 / - per month is granted. The Trial Court has also granted Rs. 2,500/- towards the costs of the litigation.

Mr. S.A. Bobde, learned Counsel appearing on behalf of the applicant/ husband, firstly, invited my attention towards the language of Section 24 of the Hindu Marriage Act and contends that the language itself suggests that the Trial Court must be alive to the over-all income of the wife, if any, as also to the overall income of the husband and must arrive at a finding of fact as regards the financial condition of the wife. He contended that in the present order, there is no such effort made by the Trial Court nor could it be said that the Trial Court has given a clear cut finding regarding the financial status of the wife. He further contended that there were circumstances on record and clinching evidence that the wife was earning per own livelihood and on that count, she did not require any maintenance whatsoever. His contention is that all the circumstances put forth on record have been completely ignored by the Trial Court and, thus, the Trial Court was guilty of passing the order with the mechanical mind, without application to the facts of the case.

Mr. Gawai, learned Counsel appearing on behalf of the non-applicant/ wife, has supported the order and contended that there are circumstances on record to show that the wife''s alleged shop was closed right from 1989 and that there was absolutely no evidence on record to suggest that the wife had any independent income. He also made a reference to the evidence of the wife as also the affidavit filed by the wife in support of the application before the Trial Court.

Mr. Bobde took me through the pleadings as also the impugned order. According to Mr. Bobde, the order itself did not contain a specific finding nor a discussion about the evidence. According to Mr. Bobde, there was no evidence at all. Now, as a matter of fact, it is an admitted fact that the wife has entered the witness-box. She has supported her application by way of affidavit. In her application, she had specifically stated that she did not have any independent income. It was only by way of evidence that the husband came with a case that the wife had a shop. The Trial Court has made a reference to the evidence of the wife and also to the fact she had asserted that the shop was already closed. That apart, once the husband comes out with a positive case that the wife had a shop and that she was having an income there from, one would expect some evidence on behalf of the husband. It is an admitted fact that the husband has not entered the witness box nor has he controverted the words on oath by the wife. I have already made a reference to the affidavit of the wife wherein she had asserted on oath that the said shop was closed right from 1989 and that she did not have the income. There does not seem to be any material contradiction to the said claim brought in, at the instance of the husband. At this stage, Mr. Bobde, relied upon the application and contended that there is no pleading that the shop was closed and, therefore, such evidence could not have been allowed, and even if it was allowed, it could become inadmissible as per the law of pleadings. In fact, I have dealt with the pleadings in details and the scrutiny reveals that there is a clear cut pleading that the wife had no independent source of income. If the wife had so averred that she had no independent income, it would automatically mean that she had no independent income even from the shop.

Mr. Bobde referred to the various documents which are filed on the file of the Trial Court as also before this Court. As a matter of fact/ there is a detailed affidavit filed even before this Court. The said affidavit makes a reference to the expenses made by the husband towards the school fees etc., of the child. There is no claim in the said affidavit that there was any contribution made by the husband for the maintenance of the wife, nor is there any claim that the husband paid any cash to the wife for her maintenance or the maintenance of the son. There is undoubtedly a reference to the school fees paid by the husband which pertains to a period from 1989 ending upto June, 1993. Mr. Bobde wanted this Court to appreciate that here was a husband who was making the payments of the school fees of me child right from 1989 till the application was made and even thereafter. From this Mr. Bobde wanted this Court to come to a conclusion that the husband had not left the wife and the son. Though it is true that there are some receipts on record, they would not be the all and end all of the matter, for the maintenance for the child does not mean only the school fees; there are still other liabilities on account of the maintenance and there is no evidence on record to suggest that the husband has made any payments towards those liabilities of the wife as also the son.

Mr. Bobde further argued that there is no indication in the impugned order that the Trial Court was alive to the evidence led before it. He criticised the order very heavily. It would be seen from para 4 of the impugned order that a direct reference is made to the cross-examination of the wife by the husband. The Trial Court has also made a reference to the letter which was referred in the cross-examination of UCO Bank and has rightly concluded that it only showed that the wife was running a shop but there was hardly any evidence to suggest that she was still running the shop when the application was made. Thus, it cannot be said that there is any positive evidence led on behalf of the husband to suggest that the wife had independent income. Mr. Bobde made a reference to the written-statement of the non-applicant/wife and contended that in this written statement, there are the admissions to the effect that she owned a shop and had the income therefrom. As a matter of fact, Mr. Bobde wants to rely on the circumstance that the wife had entered into a partnership with her son by the previous marriage, namely, Kisan, and from this, the learned Counsel wants the Court to infer that once there was an admission regarding the partnership, it must be presumed that there was some income out of that partnership business. Now, really speaking, the written-statements silent about any such admission. Even if the said admission could be read by way of stretching the words in the written - statement, it cannot be said that there is any pointer suggesting that the wife had any income from the alleged shop. It is pointed out by Mr. Gawai, learned Counsel for the non-applicant/wife that there is an affidavit on record that the shop was already closed down from 1989 on account of the activities of the husband only. There does not appear any denial to this claim on the record, at least of this civil revision, nor any such document or material has been produced before this Court by the parties. In short, there is no material on record to suggest that the wife had a regular income, or for that matter any other income.

The reliance of Mr. Bobde on the documents filed before this Court/ alongwith the affidavit, is also completely uncalled for as those documents do not suggest that the husband has shelved his responsibilities in any manner. The order, fixing the maintenance liability on the husband, is, therefore, perfectly justified. Once the husband chooses to come with a marriage petition, he has to face the liability u/s 24 of maintenance pendente lite, if the wife comes out with a case that she does not have an independent income. Here, the wife has not only sworn the affidavit in support of her claim but has also entered the witness-box to support her claim. There is no counter to suggest otherwise. The inference drawn by the Trial Court must be said to be a correct inference.

Mr. Bobde also criticised the diabolical findings by the Trial Court. He relied upon the observation of the Trial Court in para 7 of its order, which runs as under:

"........... and 1 am holding that wife might be getting some income.........."

Mr. Bobde suggests that this observation itself is sufficient to hold that the Trial Court had not come any definite finding. That may be so. However, the fact remains that the wife had demanded Rs. 8,000/- as the maintenance, while the maintenance has been given at the rate of only Rs. 4,000/- per month (Rs. 2,000/ - for herself and Rs.2,000/- for the son.). Considering the fact that the parties come from well-to-do-background and from a business community, if the maintenance was given at the rate of Rs. 2,000/- per month to the wife and Rs. 2,000/- per month to the son-I do not think that the Trial Court has committed any material error or has displayed any perversity of any kind.

In the result, it must be held that the order granting maintenance is a correct order. The Civil Revision is devoid of any merits and is dismissed with costs.