Seeso alias Bakhshish Kaur and Another vs Pakhar Singh Jhuti

A.L. Bahri, J.—Vide this judgment two appeals (RSA No. 2176 and 2294 of 1986) arising out of the same judgment and decree of District Judge, Hoshiarpur, dated May 31, 1986, whereby judgment and decree of the trial Court dated September 13, 1985, was modified, are being disposed of. Trial Court decreed the suit filed by Smt. Seeso and her minor daughter Kuldip Kaur for recovery of maintenance for the period October 1, 1979 to October 31, 1982 amounting to Rs. 74,000/- and future maintenance at the rate of Rs. 1000/- per month to each of the plaintiffs from November 1, 1982. On appeal filed by Pakhar Singh, husband of Smt. Seeso, the decree of the trial Court was modified. The suit filed by Seeso was dismissed whereas the minor Kuldip Kaur was allowed maintenance at the rate of Rs. 500/- per month in future and on the same rate arrears were allowed. The connected appeal filed by Seeso and Kuldip Kaur for enhancement of the maintenance was dismissed.

The marriage between Pakhar Singh and Seeso took place in the year 1955 in village Dakhowal. They lived together for one year and parted thereafter. On a petition filed by Pakhar Singh u/s 9 of the Hindu Marriage Act, a decree for restitution of conjugal eights was passed on the basis of compromise between the parties on January 7, 1961. Thereafter both of them lived together for some time. Kuldip Kaur was born out of the wedlock on October 28, 1962. Thereafter Pakhar Singh and Seeso did not live together. After about 10 years i.e. in 1972 Pakhar Singh left for abroad. He re-married and some children were born out of the second marriage. The economic condition of Seeso forced her and her minor daughter Kuldip Kaur to shift to Gandhi Vanita Ashram, Jalandhar. On the stipend and assistance provided by the Government agencies Kuldip Kaur continued her studies. She ultimately joined college classes with the aid from the Chief Minister''s welfare fund. On November 25, 1982, the present suit was filed by Seeso and her daughter Kuldip Kaur for recovery of Rs. 1,48,000/- @ Rs. 4000/- per month for the period October 1,1979 to October 31, 1982 and future maintenance also at the aforesaid rate. It was claimed by the plaintiffs that the defendant was earning to the tune of Rs. 25,000/- per month while working in Canada. The defendant did not maintain the plaintiffs. Thus both the plaintiffs claimed Rs. 2000/-per month each. Inter alia, denying the right of the plaintiffs to claim maintenance, the respondent averred that, plaintiffs were estopped from filing the suit by their acts and conducts. He also denied his income as alleged by the plaintiffs. In the replication the plaintiffs reiterated their stand. The trial court framed the following issues :--

(1) Whether the plaintiffs are entitled to maintenance from 1-10-1979 to 31-10-1982 @ Rs. 4000/- per month ? OPP

(2) Whether the plaintiffs are entitled to future maintenance ? If so, on what rates ? OPD

(3) Whether the plaintiffs are estopped from filing this suit by their act and conduct ? OPD

(4) Relief.

The trial Court decreed the suit as stated above.

The contention of Shrimati Kuldip Kaur appellant is that Shrimati Seeso appellant was entitled to live separately from her husband who had contracted second marriage and thus was entitled to get maintenance from the husband when she had no source of income. This contention, in the facts and circumstances of this case, cannot be accepted. The broad facts which have been reproduced above are not disputed and further there was compromise between the parties. The couple lived together for a short span of time when Smt. Seeso left the company of her husband. It was thereafter that she delivered a female child;--Kuldip Kaur. This happened some time in the year 1961. It was in 1972 that Pakhar Singh went abroad and re-married thereafter. If Smt. Seeso had left the company of her husband of her own and continued living separately for a period of about 10 years, she could not claim any maintenance from her husband. Without commenting upon the legality or otherwise of the second marriage of the husband the same would not give any fresh cause to Smt. Seeso to claim maintenance. Shrimati Kuldip Kaur appellant relied upon two judgments of the Madras High Court on the proposition that when husband started living with another woman and deserted the wife, she was entitled to maintenance while living separate. The judgments are Maharaja Nadar Vs. Muthukani Ammal, and A. Bhagavathi Ammal and Others Vs. Sethu, The ratio of the decisions aforesaid cannot be applied to the facts of the case in hand. As already stated above it was Smt. Seeso who left the company of her husband and continued staying away for a period of about 10 years. No fresh cause occurred to her for claiming maintenance subsequently on the re-marriage of her husband.

Request for taking into consideration additional evidence was made which was opposed on behalf of the opposite party. In the pleadings on this request reliance was sought to be placed on some of the documents in order to prove the earning capacity of the husband and that some land which was in the name of Smt. Seeso was not available to her as source of income, the same being under mortgage or subject matter of litigation. In my view the aforesaid documents are not considered necessary for just decision of the case as Smt. Seeso otherwise had been held to be not entitled to the grant of maintenance. The lower appellate Court lightly declined grant of maintenance to Smt. Seeso.

As far as Kuldip Kaur appellant is concerned the trial Court had allowed her maintenance at the rate of Rs. 1000/- per month. This amount was reduced to Rs. 500/- per month. Children are to be maintained by the parents. They can claim maintenance from either the father or the mother. The mere fact that a child was residing with the mother per se is no ground to reduce her maintenance to half, or if the mother was in a position to maintain her to that extent there should be reduction while granting maintenance against the father. It is not necessary to recapitulate the evidence produced in the case. Suffice it to say that after Smt. Seeso had left the house of her husband and had delivered the child, she was forced to take shelter in the Welfare Centre and she brought up her child with different kinds of aid provided by the Government or the authorities, Smt. Kuldip Kaur was in the college when she left the studies. For such a grown-up child maintenance at the rate of Rs. 1000/- per month could not be considered excessive in any manner, keeping in view the earning capacity of the father.

It has come in the evidence that two of the children of the respondent Pakhar Singh are studying in Public Schools in India. Although there is no direct evidence regarding the salary of Pakhar Singh -who is living abroad and no intrinsic reliance could be placed on documents produced as additional evidence which is only in the form of information sent by the Indian Embassy regarding the salary of Pakhar Singh, on guess work also a reasonable amount could be fixed. In this respect reference may be made to the decision of the Madras High Court in A. Bhagavathi Ammal''s case (supra). Pakhar Singh had been sending substantial amounts to his close relations as was sought to be established from the additional evidence from the records of different Banks. Be that as it may, the finding of the lower appellate Court reducing the amount of maintenance of Kuidip Kaur was not justified. Finding of the trial Court in this respect is restored holding that Kuidip Kaur is entitled to maintenance at the rate of Rs. 1000/- per month.

Pakhar Singh also filed a separate appeal (RSA No. 2294 of 1986) for reduction of the amount of maintenance allowed to Kuidip Kaur. I find no merit in that appeal. That appeal is dismissed with no order as to costs.

For the reasons recorded above, RSA No. 2176 of 1986 is partly allowed to the extent that Kuidip Kaur would be entitled to maintenance at the rate of Rs. 1000/- per month for the period October 1, 1979 to October 31, 1982 as well as in future. There will be no order as to costs.