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No Maintenance on basis of speculation of Income of Husband

Madhya Pradesh High Court

Raghubir Yadav


Smt. Purnima Kharga (Yadav)

Civil Revision No. 2631 Of 1998

on 18 September, 2000
Equivalent citations: II (2001) DMC 79

Bench: D Misra
ORDER Dipak Misra, J.

1. Celluloid personalities, when become protagonists in a legal battle before a Court of Law, conjectures take front seat and the real essence melts into oblivion. Zealously guarded secrets get exposed and the drama unfolds itself stage after stage and the protagonists sooner or later come to their real self breaking the barrier between the appearance and reality. Such is the case of the petitioner, a cine artiste, who has pleaded that his financial position is not that good as has been determined by the learned IXth Additional District Judge, Jabalpur in a proceeding under Section 24 of the Hindu Marriage Act, 1955 (hereinafter referred to as ‘the Act’).

2. In this civil revision challenge is to the order dated 25.9.1998 passed by the learned trial Judge in Civil Suit No. 3-A/1997 whereby he has fixed Rs. 20,000/-towards monthly maintenance allowance for the non-applicant/wife.

3. The facts as have been uncurtained are that the petitioner as plaintiff initiated an action by filing an application under Section 13 of the Act against the non-applicant on the ground of mental cruelty. After appearance the non-applicant filed an application under Section 151 of the Code of Civil Procedure (for short ‘the Code’) for grant of expenses. The said application was rejected by the Court below. Feeling aggrieved the non-applicant preferred Civil Revision No. 2500/1996 wherein this Court held that there was no jurisdictional error in the order passed by the Trial Court. However, it was observed that relief claimed by the non-applicant must be considered while dealing with an application under Section 24 of the Act. After such an observation was made by this Court the non-applicant filed an application under Section 24 of the Act claiming maintenance allowance and litigation expenses. In the said application it was mentioned that the husband-revisionist is a reputed film star and earns lacs of rupees per day. It was pleaded therein that the defendant’s minimum expenses is Rs. 42,500/- per month. It was alleged that she was staying in Bombay and is entitled to Rs. 15,714/- for every appearance in the Court at Jabalpur. Quite apart from the above, it was putforth that she has no income and her only child stays with her. With the aforesaid averments a monthly maintenance allowance of Rs. 1,00,000/- and litigation expenses of Rs. 15,000/- per visit to Jabalpur were claimed by the non-applicant. A. reply was filed to the same highlighting that the non-applicant is a good actress, Kathak dancer of repute and has performed in many films, T.V. serials, stage plays and dance programmes. It was also stated that she is earning approximately Rs. 50,000/- per month. That apart, various other facts were asserted denying the claim of the non-applicant.

In course of hearing of the application the petitioner produced Income-tax Return which showed that he had earned Rs. 34,555/- in a particular year. On the contrary, the non-applicant putforth that she had to pay rent of the flat and had to give education to her child, who is residing in a boarding school at Khandala. She also produced bank accounts of the petitioner which showed that the petitioner had deposited Rs. 2,74,000/- in eight months.

4. The learned Additional District Judge appreciating the facts and circumstances of the case, came to hold that the petitioner’s monthly income is more than a lac of rupees and accordingly fixed the monthly maintenance allowance at Rs. 20,000/-. The said order is the cause of grievance of the present revisionist.

5. Assailing the aforesaid order it is submitted by Mr. Wazid Hyder, learned Counsel for the petitioner, that the Court below has totally brushed aside the income shown by the petitioner and in an extremely arbitrary manner, fixed the income of the petitioner. It is his further submission that no evidence was brought on record to indicate that the petitioner’s income is more than Rs. 1,00,000/- per month. The learned Counsel has further canvassed that the Court below has not taken pains to determine the monthly income of the non-applicant and in a cavalier fashion has fixed the monthly maintenance allowance.

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6. Resisting the aforesaid submissions, it is proponed by Mr. A.K. Jain, learned Counsel for the non-applicant that the learned trial Judge has considered the documents filed before him and has rightly arrived at the figure and, therefore, no fault can be found with the order passed by him. It is his further submission that the petitioner should have honestly disclosed his income and as he has suppressed the same the learned trial Judge has rightly determined the income and has fixed the quantum of monthly maintenance allowance. Mr. Jain in support of his submission has placed reliance on the decisions rendered in the cases of Gita Chatterjee v. Probhat Kumar Chatterjee, AIR 1988 Calcutta 83; Pradeep Kumar Kapoor v. Ms. Shailja Kapoor, AIR 1989 Delhi 10; Dev Dutt Singh v. Sml, Rajni Gandhi, AIR 1984 Delhi 320; Sharad Kumar Gotee v. Mangla Goto, 1987 (1) MPWN 220; and Jasbir Kaur Sehgal (Smt) v. District Judge, Dehradun and Ors., (1997) 7 SCC 7=II (1997) DMC 338 (SC)=II (1997) CLT 398 (SC).

7. To appreciate the rival submissions raised at the Bar, it is apposite to refer to Section 24 of the Act. It reads as under :

“24. Maintenance pendente lite and expenses of proceedings- Where in any proceeding under this Act it appears to the Court that either the wife or the husband, as the case may be, has no independent income sufficient for her or his support and the necessary expenses of the proceedings, it may, on the application of the wife or the husband, order the respondent to pay to the petitioner the expenses of the proceeding, and monthly during the proceeding such sum as, having regard to the petitioner’s own income and the income of the respondent, it may seem to the Court to be reasonable.

On a bare reading of the aforesaid provision it becomes graphically clear that the said provision has been enacted for grant of maintenance pendente lite to a party in a matrimonial proceeding. This provision has been made with the avowed purpose to provide financial assistance to the indigent spouse to maintain herself or himself during the pendency of the proceeding and also to have sufficient funds to carry on litigation so that, he or she does not suffer in the case for lack of funds. If a spouse is earning that does not mean that he or she is not entitled to maintenance. In the case of Sharad Kumar Gotee (supra), this Court has held in categorical terms that even if a wife is earning she is still entitled to maintenance. The question in every case would be, what is the income of the other spouse and what should be an appropriate sum to be granted towards monthly maintenance allowance. In the case of Pradeep Kumar Kapoor (supra), it has been held that the words ‘support’ and ‘maintenance’ are synonymous. ‘Support’ means to provide money for a person to live on. Learned D.P. Wadhwa, J. (as his Lordship then was) held that when one talks of maintenance and support the definition of ‘maintenance’ as given in Hindu Adoptions and Maintenance Act, 1956 should be adopted. In the case of Dev Dutt Singh (supra), it has been held that the word ‘support’ is of wide import and it has to be according to the standard of the parties: It has also been observed therein that ‘maintenance’ has to be fixed according to the standing of the parties, their wealth and the environment to which they and their married state have accustomed. It should be borne in mind that it is imperative for the husband to maintain the wife. The wife cannot be allowed to face starvation or to live like a church mouse but while fixing the quantum of maintenance certain aspects are to be taken into consideration. It has been held in the case of Dev Dutt Singh (supra), as under:

“What is a proper proportion of the husband’s income to be given to the wife as maintenance pendente lite is a question to be determined in the light of all the circumstances of a particular case. Section 24 is not a Code of rigid and inflexible rules, arbitrarily ordained, and to be blindly obeyed. It leaves every thing to the Judge’s discretion. It does not enact any mathematical formula of one-third or any other proportion. It gives wide power, flexible and elastic, to do justice in a given case.”

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In the case of Pradeep Kumar Kapoor (supra), certain principles have been laid down indicating the basis on which an application under Section 24 of the Act should be decided. It reads as under :

“In deciding the application under Section 24 of the Act, the Court has to act in accordance with sound judicial principles and cannot act in an arbitrary fashion to the prejudice of either of the parties. The following principles would appear to be relevant for the purpose:

(1) position and status of the parties;

(2) reasonable wants of the claimant (towards food, clothing, shelter, medical attendance and treatment, education and the like);

(3) income of the claimant;

(4) income of the opposite party;

(5) number of persons opposite party is obliged to maintain. Two corollaries may be added here : (1) in arriving at the income of a party only involuntary deductions like income-tax, provident fund contribution, etc., are to be excluded; and (2) though under the law opposite party may not be obliged to maintain brother or sister but if that brother or sister having no income is living with the opposite party as member of his family and where either there are no parents or are unable to maintain themselves, the Court may in a given circumstance consider the expenses to be incurred on the maintenance of brother or sister by the opposite party. After all, Court cannot be expected to adopt a mechanical approach while interpreting the provisions of law incorporating principles of social justice like Section 24 of the Act.”

Thus, from the aforesaid, it becomes crystal clear that maintenance allowance pendente lite has to be decided on the facts of each case. The Statute does not provide for allowing l/5th or l/4th or l/3rd of the income of the husband as maintenance allowance. Ample discretion has been conferred on the Court. The Court has to strike a balance so that spouses can live with dignity according to the social status. At this juncture, I may refer to the decision rendered in the case of Jasbir Kaur Sehgal (supra), wherein their Lordships held as under :

“No set formula can be laid for fixing the amount of maintenance: It has, in the very nature of things, to depend on the facts and circumstances of each case. Some scope for leverage can, however, be always there. The Court has to consider the status of the parties, their respective needs, the capacity of the husband to pay having regard to his reasonable expenses for his own maintenance and of those he is obliged under the law and statutory but involuntary payments or deductions. The amount of maintenance fixed for the wife should be such as she can live in reasonable comfort considering her status and the mode of life she was used to when she lived with her husband and also that she does not feel handicapped in the prosecution of her case. At the same time, the amount so fixed cannot be excessive or extortionate.”

(quoted from the placitum)

8. The present factual matrix has to be tested on the touchstone of the aforesaid enunciation of law. Submission of Mr. Hyder, learned Counsel for the petitioner, is that the petitioner had produced his income-tax returns and, therefore, the determination of quantum of interim maintenance is absolutely vulnerable. In this context I may usefully refer to a Division Bench decision of the Bombay High Court rendered in the case of Vinod Dulerai Mehta v. Kanak Vinod Mehta, AIR 1990 Bombay 120, wherein P.B. Sawant, J. (as his Lordship then was) speaking for the Court held as under :

“…As is common knowledge, income-tax returns do not reflect the true position of the income of a party for several reasons, and cannot be taken as the sole guide for determining it in proceeding such as the present one.”

The aforesaid submission, therefore, does not impress this Court. However, it has been submitted by Mr. Hyder that the learned trial Judge has determined the income without any basis. The learned Counsel has submitted that the petitioner is not that a great cine artiste to earn a lac of rupees per month. It is well-known that in a case of this nature diverse claims are always made when one inflates the income and other suppresses. An element of conjectures and guess work has to be done by Courts. The Courts should keep in mind that an order under Section 24 of the Act does not become a windfall for one of the applicants and nor does it become a harsh penalty for the other. A golden balance has to be struck while expressing discretion in the matter. On a perusal of the order it is noticed that the Court below has proceeded totally on conjectures by fixing the income. He has taken note of some deposits made by the petitioner within eight months, but that does not establish that the income of the petitioner is a lac of rupees per month. Quite apart from the above, it is perceived that the petitioner had also alleged that the non-applicant has performed a number of television serials and stage plays and was working in a T.V. serial at the time of consideration of the application. The learned Additional District Judge has not appreciated this aspect in proper perspective and has brushed it aside in a sweeping manner. He should have addressed himself .to find out whether the wife had any income from the said sources or those were the acts of the past. Judging from an angle I find the order passed by the learned trial Judge is unsustainable.

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9. At this juncture, I may hasten to add that in the case of Jasbir Kaur Sehgal (supra), the Apex Court has also dealt with the discretion of the Court while granting maintenance from a particular date. It reads as under :

“If the wife has no source of income it is the obligation of the husband to maintain her and also the children of the marriage on the basis of the provisions contained in Hindu Adoptions and Maintenance Act, 1956. Her right to claim maintenance fructifies on the date of the filing of the petition for divorce under the Act. Having thus fixed the date as the filing of the petition for divorce it is not always that the Court has to grant the maintenance from that date. The Court has discretion in the matter as to from which date maintenance under Section 24 of the Act should be granted. The discretion of the Court would depend upon multiple circumstances which are to be kept in view. These could be the time taken to serve the respondent in the petition; the date of filing of the application under Section 24 of the Act; conduct of the parties in the proceedings; averments made in the application and the reply thereto; the tendency of the wife to inflate the income out of all proportion and that of the husband to suppress the same; and the like. There has to be honesty of purpose in both the parties which unfortunately is lacking in this case.”

(quoted from the placitum)

10. In view of my preceding analysis, irresistible conclusion is, the order passed by the learned trial Judge does not withstand close scrutiny. It is directed that the learned trial Judge shall decide afresh the application filed under Section 24 of the Act and it is expected, the parties shall honestly disclose their income before the Court below. The learned trial Judge shall determine the income of the petitioner and determine the quantum of maintenance allowance keeping in view the observations made in the judicial pronouncements which have been referred to above. It is further directed that the learned trial Judge would do well to dispose of the application by end of October, 2000 positively. The parties will be at liberty to adduce further evidence to substantiate their cases.

11. Resultandy, the civil revision is allowed. However, in the peculiar facts and circumstances of the case, there shall be no order as to costs.

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