The other reason assigned by the learned Family Court Judge to reject the claim of the applicant is that she has failed to prove that the respondent husband is earning a sum of Rs. 15,000/- per month from his professional practice as a lawyer. Even this reasoning of the learned Judge cannot be accepted for the reason, that a bare reading of Section 24 of the Act. indicates that in case where there is a contest between the parties about the claim made, the onus rests on the applicant who claims maintenance to prove the assertion made in the application. In a situation where certain facts is within the knowledge of one party and if that party is unable to prove that fact with the documentary evidence, then it cannot be said that the evidence given by the wife regarding the income of her husband is unreliable and is to be rejected. In the present case, the applicant has lived with the respondent for nearly 18 years as his wife. She would definitely know the approximate income that her husband earns a month and merely because the applicant was unable to support her assertion with the help of documentary evidence, it cannot be said her evidence is unreliable and unbelievable. There may be some exaggeration because every Hindu wife intends to say that her husband is a man with high qualities and earns enough to give better comforts to the family members. A Hindu wife would never canvass that her husband is incapable of any earning but when the relationship is strained, she may exaggerate a little but her claim will not be so out of portion that Court's should straight away disbelieve it in view of non-production of documents in support of the claim. It is for the other party to produce enough reliable evidence to dispute the claim made by the wife. In the instant case, the respondent has taken care of his wife and children for nearly 18 years by taking care of the medical needs of the second petitioner and educating all the three children in reputed schools at Mysore. If his income is as meagre as he claims, he could not have maintained a big family consisting of himself, his wife and three children. It is not his case either before the Family Court or before this Court that his other members of his joint family were taking care of the needs of his wife and children. The respondent with his professional practice for nearly 25 years as a Lawyer has not even filed 'nil' income tax returns before the Income Tax authorities. He is careful enough not even to file vakalaths in his name nor maintain his case diary for recent years. In the absence of these documents also, I don't think the learned Family Court Judge should have wholly disbelieved the evidence of the respondent's wife about the income of the respondent, who has lived with him as his wife for nearly 18 years. In my view, it was for the respondent - husband to have produced proper, primary evidence to show that he has no income at all from his profession particularly when the factum of carrying on with the profession as a Lawyer is not disputed. If the husband does not disclose his income, it is for the Family court to rely on the evidence of the wife and assess her husband's income. That exercise is not done by the Family Court in the present case.
2. The relationship of the parties is not in dispute. First petitioner and petitioner Nos. 2 to 4 are the wife and children of the respondent, who is a practising Advocate with 25 years of rich experience in the profession. First petitioner's marriage took place some time in the year 1982 with the respondent and they lived together as wife and husband for nearly 18 long years. Now their relationship is strained, therefore, first petitioner has filed a petition under Section 9 of Hindu Marriage Act, 1955 ('Act' for short) before the Family Court at Mysore in M. C. No. 364/1998, inter alia seeking restitution of conjugal rights. After service of notice on the respondent, she has filed an application under Section 24 of the Act, claiming interim maintenance to herself and her children; aged about 15 years, 13 years and 11 years respectively. In the affidavit filed along with her application, she has stated that she is the legally wedded wife of respondent and their marriage took place on 26-5-1962 at Kanakapura, Bangalore District, and they have three children and the first child is suffering from epilepsy and needs regular treatment and all of them are studying in schools at Mysore. For the reasons stated in detail in the affidavit, she states that she is now living separately because of the harassment of the respondent's relatives and the respondent. She has further stated that she does not have any independent income and on the other hand, her husband, who is a leading senior lawyer with rich experience of 25 years in the profession is earning not less than Rs. 15,000/- per month and apart from his professional income, he also owns joint family property both at Mysore and Bangalore and gets sufficient income from that property also.
3. As usual, respondent using all his ingenuity as a lawyer, has filed his objections resisting the relief claimed in the application. In that, firstly contends that children are not parties to the application and therefore, they are not entitled for interim maintenance. Secondly, since the applicant has deserted him without any rhyme or reason, applicant is not entitled for interim maintenance. Lastly, his professional income has dwindled, since he was arrested by the police authorities on a false complaint lodged by the applicant and then he goes to the extent of saying he has no professional income or any income from the joint family properties to maintain his wife and children.
4. Parties have lead their evidence in support of their claim and counter claim. Applicant has produced Exs. P1 to P13 in support of her claim for interim maintenance for herself and her three children. The respondent has examined himself and he has not produced any documentary evidence in support of his case.
5. The applicant in her evidence has stated that she is not employed anywhere and does not have any independent income to maintain herself, to incur expenditure towards the, medical bills of her ailing son and to meet the needs and expenses for her school going children. She further states that respondent is a practising lawyer with a rich experience of 25 years in the profession and to her knowledge, his income is not less than Rs. 15,000/- per month. In the cross-examination, respondent has elicited from her that she has studied upto S. S. L. C. and she knows typing as well.
6. Respondent in his evidence has stated that the relationship between himself and the applicant was cordial in the beginning and later on got strained because of her nagging, quarrelsome nature and her insistence to live separately from the joint family set up. However, he admits that he is an Advocate by profession and since he was arrested by the police authorities on a false complaint filed by the applicant, his clients have deserted him and therefore, he has no professional income whatsoever and denies the suggestion made to him that he has a roaring practice and earns an income of Rs. 15,000/- per month. He also states that his wife knows typing and she can earn a living and maintain herself and children by doing job typing. Lastly he states that he does not have any income and can't afford to provide any interim maintenance to the applicant.
7. The learned Family Court Judge based on the pleadings, oral and documentary evidence available on record, firstly holds that since the applicant has studied upto S. S. L. C. and knows Kannada and English typing, she is capable of earning enough income to maintain not only herself but also her three children. Therefore, he holds, applicant is disentitled for any interim maintenance. Secondly, he observes that applicant is not entitled for maintenance, since she has stated in her evidence she does not require anything by way of maintenance, if her husband arranges for a separate accommodation and lives with her and her children. While saying so, he attributes motives against the applicant. Fortunately, the learned Family Court Judge admits that the respondent is a practising Advocate and he has some income from his professional practice, if not Rs. 15,000/- per month as claimed by the applicant. The learned Family Court Judge without any rational or cogent reasons rejects the claim of the applicant that respondent is earning a sum of Rs. 15,000/- per month from his profession as a lawyer only on the ground that the apj plicant has failed to produce positive evidence1 or material before the Court to ascertain the income of the respondent. The learned Family Court Judge, curiously taking into consideration the admission made by the respondent that he was earning Rs. 1,500/- to Rs. 2,000/- per month about two and a half years back, he quantifies his professional income at Rs. 2000/- per month. In so far as income from the house properties are concerned, the learned Family Court Judge observes, since they are in possession of the joint family members, those properties are not yielding any income whatsoever. The main reason assigned by the learned Family Court Judge to decline to grant interim maintenance to the applicant seems to be that the applicant has left the house on her own and secondly she has studied upto SSLC and knows typing and therefore, she is capable of maintaining herself. Luckily for the petitioners, the learned Family Court Judge keeping a sum of Rs. 2,000/- per month as the professional income of the respondent as the base, awards interim maintenance of Rs. 400/-to the second petitioner and Rs. 300/- each per month to the third and the fourth petitioners. Fortunately the respondent has not filed any petition before this Court questioning the quantification, of his income and awarding of interim maintenance to his own children by the Family court. A great favour shown to his own genes.
8. The question now that requires to be considered and decided by this Court is whether the learned Family Court Judge is justified in rejecting the claim of the applicant for grant of interim maintenance, only on the ground that she has studied upto SSLC and she knows typing and she can earn a living without the assistance of the respondent?
9. The law relating to matrimonial cause provides for rules for payment of maintenance pendete lite and expense of the proceedings. Section 24 of the Act has been enacted with a view to empower the Court to direct payment of maintenance to the husband or the wife as the case may be, provided he or she has no independent income sufficient for his or her support and necessary expenses of the proceedings. Under this Section 24 the amplest discretion is conferred on the Court to award interim maintenance. However, the Court is required to take into consideration the income of the parties before deciding the quantum of interim maintenance. The Court has to keep in view the need of the applicant and paying capacity of the non applicant. While considering the application under this Section the Court is expected to make a summary enquiry and the Court need not try the issue at length. The granting of maintenance under this Section is a matter of discretion but like all other discretion's exercisable by the Court, this discretion has to be exercised judicially and in accordance with law. The Court is empowered to make an order which is to operate during the pendency of the proceedings.
10. Section 24 of the Act does not provide for award of maintenance to the children separately, but, if the children are under the protection of the wife, the Court would be justified in taking that into consideration in awarding maintenance to the wife. I hasten to add. when the wife makes an application under Section 24 of the Act for grant of interim maintenance to the children also, the Court can grant relief to the children also under Section 26 of the Act, whenever it considers just and proper.
11. In Section 24 of the Act, the Legislature intentionally has used the expression 'maintenance' of the spouse during the pendency of the proceedings under Hindu Marriage Act. The term maintenance has been used in a wide sense to include provision for food, clothing, residence, medical attendance and treatment etc. In my view, while using those expression, the Legislature must have kept in view the verdict of the Hindu Sages and the 'Manu' that the obligation to maintain the wife does not arise out of any contract express or implied, but out of status of the marriage and that obligation begins with the marriage and it cannot be refused on the ground that his financial condition is not good and a Hindu wife is entitled to maintenance, even if she lives separately from her husband for justifiable cause.
12. Keeping in view these settled legal principles, let me now consider the contentions canvassed by learned Counsel for respondent. The learned Counsel firstly submits that the writ petition is not maintainable against the interim orders passed, by the Family Court, Therefore, petition is liable to be rejected in limine. In support of this submission, the learned Counsel invites my, attention to the observations made by a Division Bench of this Court in the case of Shashi Sharma @ Seems v. Praveen Sharma .
In the said decision, the Court has observed :
"The remedy under Article 226 of the constitution cannot be permitted to be availed of for the purposes of frustrating the welfare legislation or allowed to be an appeal in disguise. The Article is not intended to circumvent the statutory procedure. Where the petitioner is shown to have remedy of challenging the final order byway of appeal/the High Court would normally not exercise its jurisdiction under Article 226 if the High Court decides to interfere with the interim orders passed by the Family Courts, the same is likely to frustrate the provisions of the Act which are intended to achieve a social object as is evident from the statement. of object and reasons and the various provisions noticed herein above. No writ petition is therefore maintainable against the. interim orders passed by the Family Court unless the same is shown to be in violation of the conditions noted herein above."
13. In the said decision, the Court has also observed that under special and exceptional circumstances, the writ Court can interfere against the interim orders passed by the Family Court. Those exceptional circumstances are also stated by the Court. They are :
"9. It is true that there is no absolute bar on the exercise of writ jurisdiction by the High Court in any case but before exercising such jurisdiction self imposed restraints are required to be taken note of. The Court may decide to exercise its jurisdiction where it is found that the order impugned was without jurisdiction or apparently contrary to settled position of law or was likely to result in miscarriage of justice or tantamounted to the abuse of process of court or had been obtained by suppression of material facts or any other circumstance which shocks the conscience of the court. The mere fact that the impugned order was harsh or likely to prejudice the interests of one of the parties would not be a ground for interference in exerqise of the writ jurisdiction."
14. Ire my view, the Division Bench of this Court has not stated that under all circumstances, a writ Court cannot interfere with the interim orders made by the Family Court. Infact, it has observed that if the order impugned is without jurisdiction or apparently contrary to settled position of law or is likely to result in miscarriage of justice, the writ Court can entertain a petition filed under Articles 223 and 227 of the Constitution against the interim orders made by the Family Court. Therefore, the learned Counsel for respondent may not be correct in saying that under all circumstances, the writ Court cannot entertain a petition filed against the interim orders passed by the Family Court.
15. The learned Counsel nextly contends that since the respondent has no income whatsoever from his profession, the learned Family Court Judge is justified in declining to grant interim maintenance to the applicant-wife. This submission of the learned Counsel has no merit whatsoever, firstly for the reason, that the learned trial Judge in his impugned order does not say that the respondent husband has ho income whatsoever from his profession as a lawyer. He only says that the applicant has not produced any material in support of her assertion that the respondent has professional income of Rs. 15000/- per month. Infact, while granting interim maintenance to the children of the applicant, he quantifies the income of the respondent from his Advocate's profession approximately around Rs. 2000/- per month and.it is only thereafter awards interim maintenance to the children. To decline to grant interim maintenance to the applicant, the only reason that the learned Family Court Judge assigns is that the applicant has studied upto SSLC and she knows typing and therefore, by doing job typing, she can maintain herself. In my opinion, this reasoning of the learned Family Court Judge is contrary to the settled position of law. A plain reading of Section 24 of the Act shows that the only condition precedent for the grant of interim maintenance to any of the parties to the proceedings under the Act, is that applicant has no independent income sufficient for his or her support. If it is found that the applicant has sufficient income for his or her support, no amount can be allowed as maintenance. The object of Section 24 of the Act primarily is to provide maintenance, litigation expenses to a party in matrimonial proceedings and to maintain herself during the pendency of the proceedings and also to have sufficient funds to participate in the proceedings effectively and not unduly suffer in the conduct of the case for want of funds. The object of the Section 24 would be defeated if the interim maintenance is denied during the matrimonial proceedings on the ground that the wife is capable of earning her living because of her qualification. The condition for exercise of jurisdiction under this Section is that the applicant should not have independent income sufficient for her or his support or necessary expenses of the proceedings. If the said condition is satisfied, the Family Court should exercise its jurisdiction and pass appropriate orders directing the opposite party to pay not only monthly maintenance and also the expenses of the proceedings. In the present case, the reasoning of the learned Family Court Judge that the applicant is capable of earning and therefore, she is not entitled to maintenance, in my opinion, the same is not only contrary to the settled legal position but also the spirit and the purpose of Section 24 of the Act. While deciding the application filed under this Section, what requires to be seen is whether the applicant has an independent income or not at the time when the application for claiming maintenance is made and not the capacity of the applicant to earn income to maintain herself.
16. The other reason that the learned Family Court Judge assigns to reject the claim of the applicant for interim maintenance is that the husband, who is a practising Lawyer with rich experience of 25 years does not have sufficient income. This reasoning of the learned Family Court Judge is contrary to the settled legal principles, ft is not the case of the respondent that he is incapable of earning nor it is not his case that he is incapacitated to earn because of his physical disability, etc. As long as husband is capable of earning, there is an obligation on his part to maintain his wife and children. The Apex Court had an occasion to consider similar plea of the husband and while rejecting the same, the Court in the case of Kirtikant D. Vadodaria v. State of Gujaratreported In , was pleased to observe :
"According to the Law of the Land with regard to maintenance, there is an obligation of the husband to maintain his wife which does not arise by reason of any con-tract -express of implied - but out of jural relationship of husband and wife consequent to the performance of marriage. Such an obligation of the husband to maintain his wife arises irrespective of the fact whether he has or has no property, as it is considered an imperative duty and a solemn obligation of the husband to maintain his wife. The husband cannot be heard saying that he is unable to maintain due to financial constraints so long as he is capable of earning."
(Emphasis supplied by me)
17. A Division Bench of Madhya Pradesh High Court in the Case of Durga singh Lodhi v. Prembai reported in 1990 Cri LJ 2065. was pleased to observe : (At Pp. 2066-67)
"It includes capacity to earn money. A healthy and able-bodied person but without any visible or real property must be held as having means to support his wife or child. Once a person has capacity to earn, he cannot escape his liability to maintain under Section 125(1). A Full Bench of the Rangoon High Court, in Maung Tin v. Ma Hmin, AIR 1933 Rang 138 : (1933) 34 Cri LJ 815 held that sufficient means is not confined to pecuniary resources. This view was shared by the Nagpur High Court in Abdul Wahab v. Sugrabi, (1936) 37 Cri LJ 86. The Madhya Bharat High Court, in Prabhulal v. Parwatibai, AIR 1952 Madh Bha. 96 : (1952 Cri LJ 868) even went to the extent of saying that mere minority or the fact that the husband does not work cannot come in the way of grant of maintenance to the wife. What should be ascertained is the earning capacity of the husband, if he is compelled to work, 'Means', of course, has to be sufficient to maintain. An able bodied person in our opinion, must be held as having sufficient means to maintain and it will always be for such a person to prove to the contrary. The view taken by the Delhi High Court, in Chander Prakash v. Shila Rani,
in this regard, is that an able bodied young man
must be presumed to be capable of earning sufficient money so as to be able to reasonably maintain his wife and child and he cannot be heard to say that he is not in a position to earn enough to be able to maintain them according to the family standard. It is for such able bodied person to show to the Court cogent grounds for holding that he is unable, for reasons beyond his control to earn enough to discharge his legal obligation of maintaining his wife and child. We are, therefore, of the firm opinion that as a person cannot avoid his liability under Section 125(1), Cr. P.C. merely because he has no tangible real property or income, but is otherwise able bodied and healthy and has capacity to earn. The presumption should be that such an able bodied and healthy person has capacity to earn. The presumptionshould be that such an able bodied healthy person is possessed of sufficient means and it is for him to show that by accident, disease or the conditions of labour market or otherwise, he is not capable of earning anything."
18. The other reason assigned by the learned Family Court Judge to reject the claim of the applicant is that she has failed to prove that the respondent husband is earning a sum of Rs. 15,000/- per month from his professional practice as a lawyer. Even this reasoning of the learned Judge cannot be accepted for the reason, that a bare reading of Section 24 of the Act. indicates that in case where there is a contest between the parties about the claim made, the onus rests on the applicant who claims maintenance to prove the assertion made in the application. In a situation where certain facts is within the knowledge of one party and if that party is unable to prove that fact with the documentary evidence, then it cannot be said that the evidence given by the wife regarding the income of her husband is unreliable and is to be rejected. In the present case, the applicant has lived with the respondent for nearly 18 years as his wife. She would definitely know the approximate income that her husband earns a month and merely because the applicant was unable to support her assertion with the help of documentary evidence, it cannot be said her evidence is unreliable and unbelievable. There may be some exaggeration because every Hindu wife intends to say that her husband is a man with high qualities and earns enough to give better comforts to the family members. A Hindu wife would never canvass that her husband is incapable of any earning but when the relationship is strained, she may exaggerate a little but her claim will not be so out of portion that Court's should straight away disbelieve it in view of non-production of documents in support of the claim. It is for the other party to produce enough reliable evidence to dispute the claim made by the wife. In the instant case, the respondent has taken care of his wife and children for nearly 18 years by taking care of the medical needs of the second petitioner and educating all the three children in reputed schools at Mysore. If his income is as meagre as he claims, he could not have maintained a big family consisting of himself, his wife and three children. It is not his case either before the Family Court or before this Court that his other members of his joint family were taking care of the needs of his wife and children. The respondent with his professional practice for nearly 25 years as a Lawyer has not even filed 'nil' income tax returns before the Income Tax authorities. He is careful enough not even to file vakalaths in his name nor maintain his case diary for recent years. In the absence of these documents also, I don't think the learned Family Court Judge should have wholly disbelieved the evidence of the respondent's wife about the income of the respondent, who has lived with him as his wife for nearly 18 years. In my view, it was for the respondent - husband to have produced proper, primary evidence to show that he has no income at all from his profession particularly when the factum of carrying on with the profession as a Lawyer is not disputed. If the husband does not disclose his income, it is for the Family court to rely on the evidence of the wife and assess her husband's income. That exercise is not done by the Family Court in the present case.
19. In conclusion, I would say, that once the averments made by the applicant that she has no means to maintain herself is established, prima facie, the Family Court should pass an order requiring the other party to pay to the applicant monthly maintenance and some lumpsum amount to meet the expense of the proceedings to live in a manner which is commensurate with her social status and with the social status of her husband.
20. In the present case, the wife has no independent income of her own for her bare survival and to maintain her three school going children and out of them one is suffering from serious ailment and requires constant medical treatment. The respondent husband is a Lawyer and has the capacity to earn. Keeping in view the evidence of the parties before the trial Court; in my view, the respondent must be having enough income which may not be nearer to the income claimed by the wife but atleast a minimum income of Rs. 10,000/- a month from his professional practice. This is my guess-work and the same is done keeping in view the earning capacity of a Lawyer, who has put in professional practice for nearly 25 years and still practising both in Civil and Criminal Courts. Keeping in view all these factors, and visualising the difficulties that the applicant wife has to undergo in the proceedings initiated by her, I intend to exercise my discretionary jurisdiction not only to order for interim maintenance and also for expenses of the proceedings with the available material on record, since remitting the matter to the Family Court once again to reconsider the claim of the applicant would not only frustrate the applicant and it would further invoke unnecessary litigation expenses to the applicant.
21. Accordingly, the following;
ORDER
I. Petition is allowed. Rule made absolute.
II. The order passed by the Family Court on I.A. No. IV in M. C. No. 364/1998 dated 31-1-2001 is modified by granting interim maintenance of Rs. 2000/- per month to the applicant wife from the date of filing of the application and a sum of Rs. 5000/- as litigation expenses. The other portion of the order granting interim maintenance to the children is undisturbed.
III. In the facts and circumstances of the case, parties are directed to bear their own costs. Ordered accordingly.
Print Page
Karnataka High Court
Smt. Padmavathi And Ors. vs C. Lakshminarayana on 21 August, 2002
Equivalent citations: AIR 2002 Kant 424, I (2003) DMC 169, ILR 2002 KAR 4804
1. This petition is directed against the orders made by the Family Court, Mysore, on I.A. No. IV in M. C. No. 364/ 1998 dated 31-1-2001, rejecting the wife's application for grant of interim maintenance and partly allowing the claim made for interim maintenance of the children.2. The relationship of the parties is not in dispute. First petitioner and petitioner Nos. 2 to 4 are the wife and children of the respondent, who is a practising Advocate with 25 years of rich experience in the profession. First petitioner's marriage took place some time in the year 1982 with the respondent and they lived together as wife and husband for nearly 18 long years. Now their relationship is strained, therefore, first petitioner has filed a petition under Section 9 of Hindu Marriage Act, 1955 ('Act' for short) before the Family Court at Mysore in M. C. No. 364/1998, inter alia seeking restitution of conjugal rights. After service of notice on the respondent, she has filed an application under Section 24 of the Act, claiming interim maintenance to herself and her children; aged about 15 years, 13 years and 11 years respectively. In the affidavit filed along with her application, she has stated that she is the legally wedded wife of respondent and their marriage took place on 26-5-1962 at Kanakapura, Bangalore District, and they have three children and the first child is suffering from epilepsy and needs regular treatment and all of them are studying in schools at Mysore. For the reasons stated in detail in the affidavit, she states that she is now living separately because of the harassment of the respondent's relatives and the respondent. She has further stated that she does not have any independent income and on the other hand, her husband, who is a leading senior lawyer with rich experience of 25 years in the profession is earning not less than Rs. 15,000/- per month and apart from his professional income, he also owns joint family property both at Mysore and Bangalore and gets sufficient income from that property also.
3. As usual, respondent using all his ingenuity as a lawyer, has filed his objections resisting the relief claimed in the application. In that, firstly contends that children are not parties to the application and therefore, they are not entitled for interim maintenance. Secondly, since the applicant has deserted him without any rhyme or reason, applicant is not entitled for interim maintenance. Lastly, his professional income has dwindled, since he was arrested by the police authorities on a false complaint lodged by the applicant and then he goes to the extent of saying he has no professional income or any income from the joint family properties to maintain his wife and children.
4. Parties have lead their evidence in support of their claim and counter claim. Applicant has produced Exs. P1 to P13 in support of her claim for interim maintenance for herself and her three children. The respondent has examined himself and he has not produced any documentary evidence in support of his case.
5. The applicant in her evidence has stated that she is not employed anywhere and does not have any independent income to maintain herself, to incur expenditure towards the, medical bills of her ailing son and to meet the needs and expenses for her school going children. She further states that respondent is a practising lawyer with a rich experience of 25 years in the profession and to her knowledge, his income is not less than Rs. 15,000/- per month. In the cross-examination, respondent has elicited from her that she has studied upto S. S. L. C. and she knows typing as well.
6. Respondent in his evidence has stated that the relationship between himself and the applicant was cordial in the beginning and later on got strained because of her nagging, quarrelsome nature and her insistence to live separately from the joint family set up. However, he admits that he is an Advocate by profession and since he was arrested by the police authorities on a false complaint filed by the applicant, his clients have deserted him and therefore, he has no professional income whatsoever and denies the suggestion made to him that he has a roaring practice and earns an income of Rs. 15,000/- per month. He also states that his wife knows typing and she can earn a living and maintain herself and children by doing job typing. Lastly he states that he does not have any income and can't afford to provide any interim maintenance to the applicant.
7. The learned Family Court Judge based on the pleadings, oral and documentary evidence available on record, firstly holds that since the applicant has studied upto S. S. L. C. and knows Kannada and English typing, she is capable of earning enough income to maintain not only herself but also her three children. Therefore, he holds, applicant is disentitled for any interim maintenance. Secondly, he observes that applicant is not entitled for maintenance, since she has stated in her evidence she does not require anything by way of maintenance, if her husband arranges for a separate accommodation and lives with her and her children. While saying so, he attributes motives against the applicant. Fortunately, the learned Family Court Judge admits that the respondent is a practising Advocate and he has some income from his professional practice, if not Rs. 15,000/- per month as claimed by the applicant. The learned Family Court Judge without any rational or cogent reasons rejects the claim of the applicant that respondent is earning a sum of Rs. 15,000/- per month from his profession as a lawyer only on the ground that the apj plicant has failed to produce positive evidence1 or material before the Court to ascertain the income of the respondent. The learned Family Court Judge, curiously taking into consideration the admission made by the respondent that he was earning Rs. 1,500/- to Rs. 2,000/- per month about two and a half years back, he quantifies his professional income at Rs. 2000/- per month. In so far as income from the house properties are concerned, the learned Family Court Judge observes, since they are in possession of the joint family members, those properties are not yielding any income whatsoever. The main reason assigned by the learned Family Court Judge to decline to grant interim maintenance to the applicant seems to be that the applicant has left the house on her own and secondly she has studied upto SSLC and knows typing and therefore, she is capable of maintaining herself. Luckily for the petitioners, the learned Family Court Judge keeping a sum of Rs. 2,000/- per month as the professional income of the respondent as the base, awards interim maintenance of Rs. 400/-to the second petitioner and Rs. 300/- each per month to the third and the fourth petitioners. Fortunately the respondent has not filed any petition before this Court questioning the quantification, of his income and awarding of interim maintenance to his own children by the Family court. A great favour shown to his own genes.
8. The question now that requires to be considered and decided by this Court is whether the learned Family Court Judge is justified in rejecting the claim of the applicant for grant of interim maintenance, only on the ground that she has studied upto SSLC and she knows typing and she can earn a living without the assistance of the respondent?
9. The law relating to matrimonial cause provides for rules for payment of maintenance pendete lite and expense of the proceedings. Section 24 of the Act has been enacted with a view to empower the Court to direct payment of maintenance to the husband or the wife as the case may be, provided he or she has no independent income sufficient for his or her support and necessary expenses of the proceedings. Under this Section 24 the amplest discretion is conferred on the Court to award interim maintenance. However, the Court is required to take into consideration the income of the parties before deciding the quantum of interim maintenance. The Court has to keep in view the need of the applicant and paying capacity of the non applicant. While considering the application under this Section the Court is expected to make a summary enquiry and the Court need not try the issue at length. The granting of maintenance under this Section is a matter of discretion but like all other discretion's exercisable by the Court, this discretion has to be exercised judicially and in accordance with law. The Court is empowered to make an order which is to operate during the pendency of the proceedings.
10. Section 24 of the Act does not provide for award of maintenance to the children separately, but, if the children are under the protection of the wife, the Court would be justified in taking that into consideration in awarding maintenance to the wife. I hasten to add. when the wife makes an application under Section 24 of the Act for grant of interim maintenance to the children also, the Court can grant relief to the children also under Section 26 of the Act, whenever it considers just and proper.
11. In Section 24 of the Act, the Legislature intentionally has used the expression 'maintenance' of the spouse during the pendency of the proceedings under Hindu Marriage Act. The term maintenance has been used in a wide sense to include provision for food, clothing, residence, medical attendance and treatment etc. In my view, while using those expression, the Legislature must have kept in view the verdict of the Hindu Sages and the 'Manu' that the obligation to maintain the wife does not arise out of any contract express or implied, but out of status of the marriage and that obligation begins with the marriage and it cannot be refused on the ground that his financial condition is not good and a Hindu wife is entitled to maintenance, even if she lives separately from her husband for justifiable cause.
12. Keeping in view these settled legal principles, let me now consider the contentions canvassed by learned Counsel for respondent. The learned Counsel firstly submits that the writ petition is not maintainable against the interim orders passed, by the Family Court, Therefore, petition is liable to be rejected in limine. In support of this submission, the learned Counsel invites my, attention to the observations made by a Division Bench of this Court in the case of Shashi Sharma @ Seems v. Praveen Sharma .
In the said decision, the Court has observed :
"The remedy under Article 226 of the constitution cannot be permitted to be availed of for the purposes of frustrating the welfare legislation or allowed to be an appeal in disguise. The Article is not intended to circumvent the statutory procedure. Where the petitioner is shown to have remedy of challenging the final order byway of appeal/the High Court would normally not exercise its jurisdiction under Article 226 if the High Court decides to interfere with the interim orders passed by the Family Courts, the same is likely to frustrate the provisions of the Act which are intended to achieve a social object as is evident from the statement. of object and reasons and the various provisions noticed herein above. No writ petition is therefore maintainable against the. interim orders passed by the Family Court unless the same is shown to be in violation of the conditions noted herein above."
13. In the said decision, the Court has also observed that under special and exceptional circumstances, the writ Court can interfere against the interim orders passed by the Family Court. Those exceptional circumstances are also stated by the Court. They are :
"9. It is true that there is no absolute bar on the exercise of writ jurisdiction by the High Court in any case but before exercising such jurisdiction self imposed restraints are required to be taken note of. The Court may decide to exercise its jurisdiction where it is found that the order impugned was without jurisdiction or apparently contrary to settled position of law or was likely to result in miscarriage of justice or tantamounted to the abuse of process of court or had been obtained by suppression of material facts or any other circumstance which shocks the conscience of the court. The mere fact that the impugned order was harsh or likely to prejudice the interests of one of the parties would not be a ground for interference in exerqise of the writ jurisdiction."
14. Ire my view, the Division Bench of this Court has not stated that under all circumstances, a writ Court cannot interfere with the interim orders made by the Family Court. Infact, it has observed that if the order impugned is without jurisdiction or apparently contrary to settled position of law or is likely to result in miscarriage of justice, the writ Court can entertain a petition filed under Articles 223 and 227 of the Constitution against the interim orders made by the Family Court. Therefore, the learned Counsel for respondent may not be correct in saying that under all circumstances, the writ Court cannot entertain a petition filed against the interim orders passed by the Family Court.
15. The learned Counsel nextly contends that since the respondent has no income whatsoever from his profession, the learned Family Court Judge is justified in declining to grant interim maintenance to the applicant-wife. This submission of the learned Counsel has no merit whatsoever, firstly for the reason, that the learned trial Judge in his impugned order does not say that the respondent husband has ho income whatsoever from his profession as a lawyer. He only says that the applicant has not produced any material in support of her assertion that the respondent has professional income of Rs. 15000/- per month. Infact, while granting interim maintenance to the children of the applicant, he quantifies the income of the respondent from his Advocate's profession approximately around Rs. 2000/- per month and.it is only thereafter awards interim maintenance to the children. To decline to grant interim maintenance to the applicant, the only reason that the learned Family Court Judge assigns is that the applicant has studied upto SSLC and she knows typing and therefore, by doing job typing, she can maintain herself. In my opinion, this reasoning of the learned Family Court Judge is contrary to the settled position of law. A plain reading of Section 24 of the Act shows that the only condition precedent for the grant of interim maintenance to any of the parties to the proceedings under the Act, is that applicant has no independent income sufficient for his or her support. If it is found that the applicant has sufficient income for his or her support, no amount can be allowed as maintenance. The object of Section 24 of the Act primarily is to provide maintenance, litigation expenses to a party in matrimonial proceedings and to maintain herself during the pendency of the proceedings and also to have sufficient funds to participate in the proceedings effectively and not unduly suffer in the conduct of the case for want of funds. The object of the Section 24 would be defeated if the interim maintenance is denied during the matrimonial proceedings on the ground that the wife is capable of earning her living because of her qualification. The condition for exercise of jurisdiction under this Section is that the applicant should not have independent income sufficient for her or his support or necessary expenses of the proceedings. If the said condition is satisfied, the Family Court should exercise its jurisdiction and pass appropriate orders directing the opposite party to pay not only monthly maintenance and also the expenses of the proceedings. In the present case, the reasoning of the learned Family Court Judge that the applicant is capable of earning and therefore, she is not entitled to maintenance, in my opinion, the same is not only contrary to the settled legal position but also the spirit and the purpose of Section 24 of the Act. While deciding the application filed under this Section, what requires to be seen is whether the applicant has an independent income or not at the time when the application for claiming maintenance is made and not the capacity of the applicant to earn income to maintain herself.
16. The other reason that the learned Family Court Judge assigns to reject the claim of the applicant for interim maintenance is that the husband, who is a practising Lawyer with rich experience of 25 years does not have sufficient income. This reasoning of the learned Family Court Judge is contrary to the settled legal principles, ft is not the case of the respondent that he is incapable of earning nor it is not his case that he is incapacitated to earn because of his physical disability, etc. As long as husband is capable of earning, there is an obligation on his part to maintain his wife and children. The Apex Court had an occasion to consider similar plea of the husband and while rejecting the same, the Court in the case of Kirtikant D. Vadodaria v. State of Gujaratreported In , was pleased to observe :
"According to the Law of the Land with regard to maintenance, there is an obligation of the husband to maintain his wife which does not arise by reason of any con-tract -express of implied - but out of jural relationship of husband and wife consequent to the performance of marriage. Such an obligation of the husband to maintain his wife arises irrespective of the fact whether he has or has no property, as it is considered an imperative duty and a solemn obligation of the husband to maintain his wife. The husband cannot be heard saying that he is unable to maintain due to financial constraints so long as he is capable of earning."
(Emphasis supplied by me)
17. A Division Bench of Madhya Pradesh High Court in the Case of Durga singh Lodhi v. Prembai reported in 1990 Cri LJ 2065. was pleased to observe : (At Pp. 2066-67)
"It includes capacity to earn money. A healthy and able-bodied person but without any visible or real property must be held as having means to support his wife or child. Once a person has capacity to earn, he cannot escape his liability to maintain under Section 125(1). A Full Bench of the Rangoon High Court, in Maung Tin v. Ma Hmin, AIR 1933 Rang 138 : (1933) 34 Cri LJ 815 held that sufficient means is not confined to pecuniary resources. This view was shared by the Nagpur High Court in Abdul Wahab v. Sugrabi, (1936) 37 Cri LJ 86. The Madhya Bharat High Court, in Prabhulal v. Parwatibai, AIR 1952 Madh Bha. 96 : (1952 Cri LJ 868) even went to the extent of saying that mere minority or the fact that the husband does not work cannot come in the way of grant of maintenance to the wife. What should be ascertained is the earning capacity of the husband, if he is compelled to work, 'Means', of course, has to be sufficient to maintain. An able bodied person in our opinion, must be held as having sufficient means to maintain and it will always be for such a person to prove to the contrary. The view taken by the Delhi High Court, in Chander Prakash v. Shila Rani,
in this regard, is that an able bodied young man
must be presumed to be capable of earning sufficient money so as to be able to reasonably maintain his wife and child and he cannot be heard to say that he is not in a position to earn enough to be able to maintain them according to the family standard. It is for such able bodied person to show to the Court cogent grounds for holding that he is unable, for reasons beyond his control to earn enough to discharge his legal obligation of maintaining his wife and child. We are, therefore, of the firm opinion that as a person cannot avoid his liability under Section 125(1), Cr. P.C. merely because he has no tangible real property or income, but is otherwise able bodied and healthy and has capacity to earn. The presumption should be that such an able bodied and healthy person has capacity to earn. The presumptionshould be that such an able bodied healthy person is possessed of sufficient means and it is for him to show that by accident, disease or the conditions of labour market or otherwise, he is not capable of earning anything."
18. The other reason assigned by the learned Family Court Judge to reject the claim of the applicant is that she has failed to prove that the respondent husband is earning a sum of Rs. 15,000/- per month from his professional practice as a lawyer. Even this reasoning of the learned Judge cannot be accepted for the reason, that a bare reading of Section 24 of the Act. indicates that in case where there is a contest between the parties about the claim made, the onus rests on the applicant who claims maintenance to prove the assertion made in the application. In a situation where certain facts is within the knowledge of one party and if that party is unable to prove that fact with the documentary evidence, then it cannot be said that the evidence given by the wife regarding the income of her husband is unreliable and is to be rejected. In the present case, the applicant has lived with the respondent for nearly 18 years as his wife. She would definitely know the approximate income that her husband earns a month and merely because the applicant was unable to support her assertion with the help of documentary evidence, it cannot be said her evidence is unreliable and unbelievable. There may be some exaggeration because every Hindu wife intends to say that her husband is a man with high qualities and earns enough to give better comforts to the family members. A Hindu wife would never canvass that her husband is incapable of any earning but when the relationship is strained, she may exaggerate a little but her claim will not be so out of portion that Court's should straight away disbelieve it in view of non-production of documents in support of the claim. It is for the other party to produce enough reliable evidence to dispute the claim made by the wife. In the instant case, the respondent has taken care of his wife and children for nearly 18 years by taking care of the medical needs of the second petitioner and educating all the three children in reputed schools at Mysore. If his income is as meagre as he claims, he could not have maintained a big family consisting of himself, his wife and three children. It is not his case either before the Family Court or before this Court that his other members of his joint family were taking care of the needs of his wife and children. The respondent with his professional practice for nearly 25 years as a Lawyer has not even filed 'nil' income tax returns before the Income Tax authorities. He is careful enough not even to file vakalaths in his name nor maintain his case diary for recent years. In the absence of these documents also, I don't think the learned Family Court Judge should have wholly disbelieved the evidence of the respondent's wife about the income of the respondent, who has lived with him as his wife for nearly 18 years. In my view, it was for the respondent - husband to have produced proper, primary evidence to show that he has no income at all from his profession particularly when the factum of carrying on with the profession as a Lawyer is not disputed. If the husband does not disclose his income, it is for the Family court to rely on the evidence of the wife and assess her husband's income. That exercise is not done by the Family Court in the present case.
19. In conclusion, I would say, that once the averments made by the applicant that she has no means to maintain herself is established, prima facie, the Family Court should pass an order requiring the other party to pay to the applicant monthly maintenance and some lumpsum amount to meet the expense of the proceedings to live in a manner which is commensurate with her social status and with the social status of her husband.
20. In the present case, the wife has no independent income of her own for her bare survival and to maintain her three school going children and out of them one is suffering from serious ailment and requires constant medical treatment. The respondent husband is a Lawyer and has the capacity to earn. Keeping in view the evidence of the parties before the trial Court; in my view, the respondent must be having enough income which may not be nearer to the income claimed by the wife but atleast a minimum income of Rs. 10,000/- a month from his professional practice. This is my guess-work and the same is done keeping in view the earning capacity of a Lawyer, who has put in professional practice for nearly 25 years and still practising both in Civil and Criminal Courts. Keeping in view all these factors, and visualising the difficulties that the applicant wife has to undergo in the proceedings initiated by her, I intend to exercise my discretionary jurisdiction not only to order for interim maintenance and also for expenses of the proceedings with the available material on record, since remitting the matter to the Family Court once again to reconsider the claim of the applicant would not only frustrate the applicant and it would further invoke unnecessary litigation expenses to the applicant.
21. Accordingly, the following;
ORDER
I. Petition is allowed. Rule made absolute.
II. The order passed by the Family Court on I.A. No. IV in M. C. No. 364/1998 dated 31-1-2001 is modified by granting interim maintenance of Rs. 2000/- per month to the applicant wife from the date of filing of the application and a sum of Rs. 5000/- as litigation expenses. The other portion of the order granting interim maintenance to the children is undisturbed.
III. In the facts and circumstances of the case, parties are directed to bear their own costs. Ordered accordingly.
No comments:
Post a Comment