Viswanathan vs S. Rema

R. Basant, J.—As issues involved in the Mat.Apel and writ petition are integrally connected, we are proceeding to dispose of both cases by this common judgment. The appellant/petitioner (hereinafter referred to as the husband) has filed O.P. No. 69/01 before the Subordinate Judge, Mavelikkara for a decree for divorce against the respondent (hereinafter referred to as the wife). Divorce is claimed on the ground of adultery. It is alleged that the wife has an adulterous relationship with the 2nd respondent in the O.P who is now said to be no more. Admittedly, two children have been born in the wedlock. They are residing with the wife, the husband being admittedly employed abroad.

During the pendency of that O.P., the wife filed an application u/s 24 of the Hindu Marriage Act claiming maintenance at the rate of Rs. 3,000/-, Rs. 1,000/- and Rs. 1,000/- per mensum respectively for herself and her two minor children. She further claimed an amount of Rs. 5,000/- as litigation expenses.

The husband, who was employed abroad, raised objections against the prayers. An objection was filed by the power of attorney holder. As against the affidavit of the wife, there was only the objection filed by the power of attorney holder.

The learned Judge proceeded to hear the parties and at that stage, notes of arguments were filed by the counsel appearing for the husband. Along with the notes of arguments, we note that three documents were produced as Exts.B1 to B3. Those documents are not placed before us. The court below came to the conclusion that the claim of the wife u/s 24 is liable to be allowed and accordingly directed payment of a total amount of Rs. 5,000/- per mensum to the three claimants as interim maintenance pending litigation and a further amount of Rs. 5,000/- as litigation expenses. In the writ petition, the said order is assailed.

The husband did not pay the amounts as directed in the order u/s 24. Later, the learned Judge, by the order which is assailed in Mat.Appeal No. 29/04, proceeded to dismiss the Mat.Appeal. That order of dismissal is assailed in Mat.Appeal No. 29/04.

We have heard the learned Counsel for the husband and the learned Counsel for the wife. The learned Counsel for the appellant submits that the impugned orders are not legally valid or sustainable and they are liable to be set aside.

First of all, the counsel contends that the foundation of a claim for maintenance/expenses u/s 24 is that the claimant must be shown to have no independent income sufficient for her support. The counsel contends that in the facts and circumstances of this case, the claimant/wife cannot be held to fall within the sweep of Section 24 inasmuch as she cannot be held to be without any independent income. The counsel relies on precedents in support of this proposition. There can be no dispute on the question of law and therefore it is unnecessary for us to advert to the precedents cited.

The short question is whether the wife has proved herself to be having no independent income sufficient for her support. The wife is admittedly unemployed. No contention is raised anywhere that she is employed. There is a contention that 27.5 cents of land have been settled by the husband in favour of the wife. In support of that, though specific averments to that effect are not raised, in the objections filed, a document is sought to be pressed into service as Ext.B1 along with the notes of arguments. We will assume, to avoid any dispute, that the wife has these 27.5 cents of land. For the purpose of arguments, we assume that she is getting some income from this property though that assertion is stoutly denied by the learned Counsel for the wife. Even assuming all that, we are satisfied that the conclusion of the court below that an order u/s 24 is liable to be passed as the wife "has no independent income sufficient for her support" is absolutely justified. There is no specific assertion or averment in the objection filed as to what is the income from such property. The argument notes does not throw any authentic light on the income derived. Even assuming that there is income from such property, we are unable to agree with the learned Counsel for the husband that the wife cannot be held to be a person who "has no independent income sufficient for her support".

The husband is employed abroad. It is asserted in the petition that he gets an income of Rs. 30,000/- per mensum. The power of attorney holder has filed not an affidavit but an objection in which he denies the monthly income of the husband. Curiously, the husband or his attorney has not chosen to reveal to the court the income that he derives either by filing an affidavit or even by an appropriate averment in the objection filed by him. He is employed abroad admittedly. He continues to employed abroad admittedly. Reasonable inferences can be drawn from the assertions made by the wife which virtually remain uncontroverted. Effective denial of that assertion must necessarily give an idea to the court about the quantum of income which he receives from such employment abroad.

It is such wife and children who assert that they are not having independent income sufficient for their support. Sufficiency will have to be decided on the basis of the degree of affluence which the parties are used to. It is seen that the claimant/wife and children are to depend upon such a husband employed abroad. We are unable to disagree with the conclusion of the court below that the wife and children have no independent income sufficient for their support. That conclusion warrants no interference in exercise of the extraordinary constitutional jurisdiction vested in this Court under Article 227 of the Constitution of India.

There is an assertion that the wife has yet another house and has rent income from that. Significantly such an assertion is not made in the objections filed.

There is absolutely nothing to show that the wife has any property or income except the income which is alleged to be derived from 27.5 cents of land settled by the husband in her favour. We do not, in these circumstances, find any reason to interfere with that crucial conclusion reached by the court below u/s 24.

It is contended that the quantum of maintenance directed to be paid is excessive. We note that the direction is only to pay Rs. 3,000/- per mensum to the wife and Rs. 1,000/- each per mensum to the two minor children of the husband who has not effectively controverted the assertion that, from his admitted employment abroad, he is earning an income of Rs. 30,000/- per mensum (as foreman). We do not, in these circumstances, find any reason to interfere with the quantum of amounts fixed under impugned order passed u/s 24.

The order u/s 24 having been held to be valid, the order assailed in the Mat.Appeal must be held to be absolutely justified. There is no contention that the court below has committed any error in dismissing the application for divorce on the ground of non-compliance with the order passed u/s 24. The order assailed in the Mat.Appeal does not also hence warrant interference.

To a pointed query by this Court as to whether appellant wants to avail of the opportunity to prosecute the O.P for divorce on condition that he pays the entire amounts due under the order u/s 24, the learned Counsel does not make a positive response.

In the result, this writ petition and the Mat.Appeal are dismissed. Needless to say, the amounts deposited in pursuance of the order u/s 24 shall, if not released, forthwith be released to the claimant/wife.