Whether party to proceeding can withhold material documents on ground that burden of proof is not on him?

 Mr. Desai, in reply to the argument of Mr. Marshal regarding the burden of proof, has relied upon the decision of the Supreme Court in Gopal Krishnaji Ketkar v. Mohamed Haji Latif, AIR 1968 SC 1413. In the said case, the question was whether the land comprised in survey No. 134 of village Wadi of Thana District, on a portion of which the Dargah of Peer Haji Malang near Kalyan is situated, was the property of the Dargah or whether it belonged to the appellant, a private party who was the applicant ~before the Authority under the Bombay Public Trusts Act, 1950. The said appellant claimed that the said survey number was his private property. He was in possession of certain documents which were not produced and, therefore, the Supreme Court has in Para 5 of its judgment observed
"...... In the course of his evidence the appellant admitted that he was enjoying the income of plot No. 134 but he did not produce any accounts to substantiate his contention. He also admitted that he had got record of the Dargah income and that account was kept separately. But the appellant has not produced either his own accounts or the account of the Dargah to show as to how the income from plot No. 134 was dealt with. Mr. Gokhale, however, argued that it was no part of the appellant's duty to produce the accounts unless he was called upon to do so and the onus was upon the respondents to prove the case and to show that the Dargah was the owner of plot No. 134. We are unable to accept this argument as correct. Even if the burden of proof does not lie on a party the Court may draw an adverse inference if he withholds important
documents in his possession which can throw light on the facts at issue. It is not, in our opinion, a sound practice for those desiring to rely upon a certain state of facts to withhold from the Court the best evidence which is in their possession which could throw light upon the issues in controversy and to rely upon the
abstract doctrine of onus of proof. In Murugesam Pillai v. Gnana Sambandha Pandara Sannadhi, 44 Ind App 98 at p. 103 : AIR 1917 PC 6 at p. 8 Lord Shaw observed as follows:
"A practice has grown up in Indian procedure of those in possession of important documents or information lying by, trusting to the abstract doctrine of the onus of proof, and failing, accordingly, to furnish to the Courts the best material for its decision. With regard to third parties, this may be right enough they have no responsibility for the conduct of the suit, but with regard to the parties to the suit it is, in their Lordships opinion, an inversion of sound practice for those desiring to rely upon a certain state of facts to withhold from the Court the written evidence in their possession which would throw light upon the proposition."

The aforesaid observations of the Supreme Court are directly applicable to the facts and circumstances of the present case. In the instant case the plaintiff-wife has done her level best to extract the information regarding the income of the defendant-husband, who is the only person having knowledge regarding his own income and in possession of the relevant documents, like the Income-tax assessment orders, etc. Neither the defendant nor his power of attorneys have stepped into the witness-box or produced the relevant documents in their possession. They are relying upon the abstract doctrine of onus of proof. In such circumstances, the Court would be justified in drawing adverse inference against the defendant, and the defendant cannot be allowed to rely upon the abstract doctrine of onus of proof.

Gujarat High Court

Maganbhai Chhotubhai Patel vs Maniben on 19 November, 1984

Equivalent citations: AIR 1985 Guj 187, (1985) 1 GLR 374, (1985) 1 GLR 374

Bench: S Shah

1. The present appellant Maganbhai Chhotubhai Patel is the original defendant and husband of present respondent (original plaintiff) Maniben alias Kikiben alias Laxmiben.
2. The appellant being aggrieved by the judgment and decree dt. 22-4-1975, passed by the learned Civil Judge, Senior Division, Navsari, in Special Civil Suit No. 3 of 1970, awarding to the plaintiff-wife maintenance at the rate of Rs. 250/- per month from the date of the suit, i.e. 2-4-1969, as also the arrears of maintenance that had accrued due till then within a period of two months from the date of the judgment, i.e. 22-4-1975, has filed this appeal. The respondent-wife also being dissatisfied with the paltry amount of maintenance of Rs. 250/- per month has filed Cross-Objections, claiming maintenance at the rate of Rs. 1,000/- per month with arrears that had accrued due at the said rate. For the sake of convenience, hereafter the appellant will be referred to as 'the defendant husband' and the respondent as 'the plaintiff-wife'.
3. At the outset, I am constrained to say that the defendant-husband leaving the plaintiff wife and his two minor children went to United States of America for further studies in Engineering, and since then lie has neither come back to India nor has cared to maintain his wife or children, so much so, that even after the plaintiff-wife obtained a decree as aforesaid for a paltry amount of Rs. 250/- per month, the defendant-husband has not cared to pay her a single pie. It is also proved that the defendant-husband has a one-sixth share in the joint family property situated in village Malekpur, District Bulsar, where-his father is residing. The defendant's father (i.e. father in-law of the plaintiff-wife) Chhotubhai Patel has also not cared to make any provision for the maintenance of the plaintiff-wife and her minor children, and till today (i.e. 1984) the plaintiff-wife has been kept away by the defendant-husband and his father from enjoying the usufruct of the decree and/or share in the property.

4. It appears that the plaintiff-wife has during ail those years suffered a lot and has continued her existence in a miserable condition. This is a very, grave case where the defendant-husband has resorted to technicalities of laws and has fought the legal battle through his power-of-attorney, his father, to stall the claim of the plaintiff-wife, and the father of the defendant has also contributed in the miseries suffered by the plaintiff-wife by not giving -the due share to her from the valuable properties in which the defendant has one-sixth share, though the learned trial Judge has charged the maintenance on the said properties.
5. The facts as disclosed from the evidence on record are that the plaintiff was married with the defendant on 3-3-1952 according to Hindu rites and the custom of the caste. After the marriage, both of them lived in their matrimonial house at Malekpur, Taluka Palsana, District Bulsar, during which time two children were born, i.e. son Praful on 9-8-1956 and daughter Daksha on 2-9-1961. At that time the defendant-husband was prosecuting his studies in the Engineering College at Baroda. It appears that he having completed the Engineering course, which may be a degree in Engineering, proceeded for further studies to U. S. A. for a period of three years in Engineering school. Though there is no clear evidence as to what degree he obtained in U. S. A., it can be safely assumed that he must have at least obtained Master's degree in Engineering. It is alleged that when the defendant-husband went to U. S. A., he promised plaintiff-wife that after the completion of his studies within three years, he would return to India and stay with her and children, or he might call all of them to U. S. A.
6. It may be remembered that in those days there was great attraction of going to U. S. A. for further studies and thereafter to obtain a job there, because it has been now well-known that very lucrative salaries are being paid to Engineers and Doctors in U. S. A. It appears that the defendant-husband fell victim to those attractions. He might have started earning handsome amount on account of his Engineering qualifications, and on account of his economical independence lie might have lost interest in the plaintiff-wife who came from a small village known as Chhinam, Taluka Navsari, District Bulsar,
7. Under the aforesaid circumstances, iv appears that the defendant-husband after completion of his studies, which might be somewhere in year 1963 or 1964, did not return to India as promised, and on the contrary, on 6-12-1966 wrote letter Ex. 85 to the father of the plaintiff-wife and the plaintiff-wife making demand for divorce stating that he was not interested in the plaintiff-wife. He also threatened in the said letter that if they would not be prepared to give divorce by way of settlement, lie would obtain the divorce by engaging Advocates through the Court in U. S. A., and the plain tiff-wife would not get a pie in that case, and the children would also lose their rights. He has further stated therein that he has become a citizen of U. S. A. and will be able to marry again and will never call his children and will not give any of his properties to them. He has ascertained his share in the property at Malekpore in India, but has stated that the children will not be able to get any share there from, which they may note. He has further stated therein that this was not a threat or pressure, but he was telling what was fact, and he was not prepared to spend the rest of his life with the plaintiff wife. It is further stated therein that if the divorce is not given, he will marry again without such divorce, and the father of the plaintiff wife will not be able to prevent the same. If he takes divorce in U. S. A. the future of the children will be affected. In short, the defendant-husband wanted to pressurise the plaintiff-wife and her father for consent divorce, and if they fail to agree, he threatened that the future of the children will be affected arid they will not get anything from his property in India and they will lose all the benefits that might be available to them in future. However, the defendant-husband was clearly mistaken in his approach. He had forgotten that in India a-marriage is considered to be a sacred tie between the husband and the wife, and no Hindu woman coming from a respectable family will ever think of divorce. It appears that the plaintiff-wife had no desire to remarry. She was really a religious and pious woman and had no intention to get divorce even at the cost of denying the benefits offered by the husband. It appears that she was not so much educated as to get any job and, therefore, she w as totally at the mercy of her father. In spite of such ad-verse circumstances, she was not prepared to accede to the unreasonable demand of the defendant-husband.
8. The defendant-husband having failed to obtain redress from the plaintiff-wife or her father, wrote a- letter Ex. 86 to the plaintiff which appears to have been received by her on 4-10-1968. The said letter appears to have been sent from U. S. A., i.e. the permanent address of the defendant-husband, and that it must have been posted somewhere in the last week of September 1968. In this letter the defendant-husband has stated that he had gone to stay in Mexico and had obtained on 31-8-1968 a decree for divorce against the plaintiff wife through the Court at Mexico. He has further stated that the Mexican Court has given him permission to marry wherever he likes and the plaintiff will receive such letter within a week (presumably of the defendant's marriage). He has further stated therein t at on account of the divorce obtained by him, the plaintiff will not get anything. He has stated that he is prepared to call his children. He has further stated that he is going to marry in a very near future. The plaintiff-wife has also produced a letter Ex. 91 dated 22-3-1972, received by her from the United States Department of Justice, New Jersey, wherein it has been stated that a petition for Naturalisation has been filed by Maganbhai Chhotubhai Patel (ie. the defendant-husband). The said Department has, therefore, inquired of the plaintiff-wife whether the defendant complied with the provisions of the divorce decree which may require him to provide for the support of the plaintiff or her children,
9. After the receipt of the said letter Ex. 86of the defendant-husband, the plaintiff-wife lost all hopes of the return of the defendant and that he would make arrangements for the maintenance of herself and her children. She, therefore, filed the aforesaid suit, claiming maintenance at the rate of Rs. 1,000/- per month. In para 5 of the plaintiff, it has been in terms averred that the monthly income of the defendant-husband was $ 1,700/ - i.e. about Rs, 11,900/- and that the defendant had one sixth share in the joint family properties at Malekpore which yield about Rs. 20,000/- per year. The defendant-husband though vaguely denied such income, has not given the figures of his income, which might be either more or less, nor has lie stepped into the witness-box nor has he thought it fit to examine any witness or his power-of-attorney, his father. The defendant also relied upon the decree for divorce obtained by him from the Court at Mexico-and has repudiated the liability to pay any maintenance to the plaintiff- wife.
10. The trial Court after recording the evidence and hearing the Advocates of the parties, decreed the suit of the plaintiff- wife as aforesaid, against which the defendant husband has filed this appeal and the plaintiff wife has filed cross-objections claiming maintenance and arrears thereof, as stated earlier.
11. Mr. R. R. Marshal, learned Advocate for the appellant-defendant has raised the following contentions:
(1) The decision of the trial Court that the decree obtained by the defendant-husband from the Mexican Court was not binding to the plaintiff on account of fraud is erroneous.
(2) The quantum of maintenance at the rate of Rs. 250/- per month fixed by the trial Court is excessive, even if it is held that the defendant is liable to pay maintenance.
Mr. V. J. Desai, learned Advocate for the respondent-plaintiff (wife) has raised the following contentions:
(1) The decree passed by the Mexican Court is nothing but a collusive Mexican mail-order divorce and cannot be recognised in India.
(2) The defendant-husband was a resident of India and in the alternative, he was residing in U. S. A., and the Mexican Court which passed the decree had no jurisdiction to grant decree for divorce.
(3) The decree of Mexican Court is nothing but a fraud upon the Court and is also in violation of the principles of natural justice and, therefore, liable to challenge on all the grounds mentioned in S. 43 of Civil P.C. 1908.
(4) The trial Court has committed an error in awarding maintenance of only Rs. 250/- per month to the plaintiff-wife. According to the settled legal position, the plaintiff is entitled to one-half of the earnings of the defendant husband, and the demand of the plaintiff was very low, and the Court should have decreed the entire claim of the plaintiff in the suit.
12. As the questions involved in this suit are of great importance, I will examine the aforesaid rival contentions of the parties in extenso. The first question which requires close examination is whether the decree for divorce obtained by the defendant-husband from the Court of the State of Chihuahua, Republic of Mexico dissolves the marriage of the plaintiff with the defendant. In short, I have to examine the validity of a foreign judgment rendered in civil proceedings in India in terms of S. 13 of the Civil P.C. 1908 (hereinafter referred to as 'the Code'), under which though foreign judgments have been made conclusive, they are open to collateral attacks on the grounds (a) to (f) mentioned therein.
13. Section 13 of the Code reads:
"13. A foreign judgment shall be conclusive as to any matter thereby directly adjudicated upon between the same parties or between parties under whom they or any of them claim litigating under the same title except-
(a) where it has not been pronounced by a Court of competent jurisdiction;
(b) where it has not been given on merits of the case;
(c) where it appears on the face of the proceedings to be founded on an incorrect view of international law or a refusal to recognise the law of India in cases in which such law is applicable;
(d) where the proceedings in which the judgment was obtained are opposed to natural justice;
(e) where it has been obtained by fraud;
(f) where it sustains a claim founded on a breach of any law in force in India."
A bare reading of this S. 13 of the Code suggests that a foreign judgment would be conclusive as to any matter thereby directly adjudicated upon between the same parties. In other words, a judgment of a foreign Court creates estoppel or res judicata between the same parties, provided such judgment is not subject to attack under any of the cls. (a) to (f) of S. 13 of the Code. In the instant case, the defendant has produced a true certified copy of the judgment of the Court of Republic of Mexico (which is in Spanish language) at Mark 74/1, and a translated copy of it at Ex. 121. The Republic of Mexico is admittedly a foreign State.
14. On reading the translated copy of the judgment Ex. 121, it appears that the plaintiff wife had not been served personally by summons. It is observed therein:
"... ...The defendant was duly served twice by the Official Gazette of this State. Summons period being concluded without an answer to the petition, this was considered answered in a negative sense and the suit .vas opened to proof period for the legal term."
So far as the residence of the defendant husband is concerned, it is stated therein :
"... ...and, whereas: This Court 'S competent to resolve in definite this suit, according to Arts. 22 and 24 of the Divorce Law, as the plaintiff proved to be legally registered in Official Book of Residents of this City; according to Art. 23 of the same Law, as the plaintiff submitted himself expressly to the jurisdiction and competence of this Court: and pursuant to Art. 29 of the proper Law, the marriage of the parties and birth of the children were evidenced."
The judgment nowhere mentions the durations of the defendant. It also does not contain any averment regarding the domicile of the defendant-husband. It, therefore, appears that if a person produces a certificate of his residence, that was considered enough for the Mexican Court to invest jurisdiction. The learned Advocate for the defendant-husband has not produced before me the Mexican Law, referred to in the translated copy of the judgment, to show that such a decree can be obtained only by the persons who are domiciled in Mexico. At an appropriate state I will revert to the nature of the decrees that are being obtained in Mexico.
15. Mr. Desai for the plaintiff-wife has attacked the judgment of the Mexican Court on the following grounds :
(1) The judgment has been obtained without serving proper summons to the plaintiff-wife and a notice in the Official Gazette of Republic of Mexico is not a legal notice to the opposite party residing in India and, therefore, the Court at Mexico had no jurisdiction to proceed against the plaintiff-wife.
(2) The decision of the Mexican Court is not based on merits, because it is not alleged that the plaintiff-wife has taken any part in the said proceedings or had submitted to the jurisdiction of the Mexican Court.
(3) The Mexican Court was not competent to pass such a decree because the defendant husband has not proved that he was domicile of Mexico at the relevant time. On the contrary, there is ample evidence on record to show that the defendant-husband is domicile of India and has permanently settled in U. S. A.
(4) The defendant-husband has obtained the decree of divorce from the Mexican Court by committing fraud upon the said Court by stating that he was a resident of Mexico and had an intention to reside there permanently.
(5) The judgment obtained by the defendant husband from the Mexican Court is opposed to natural justice.
(6) Divorce has been obtained in breach of law that is in force in India.
16. Before I consider the contentions of Mr. Desai individually in respect of the judgment obtained by the defendant-husband from the Mexican Court, I first propose to consider the binding decisions of the Supreme Court on some of these points. In Smt. Satya v. Teja Singh, AIR 1975 SC 105, the appellant wife was married to respondent Teja Singh according to Hindu rites. Both of them were citizens of India and were domiciled in India at the time of their marriage. After the marriage two children were born. In 1959 husband Teja Singh went to U. S. A. for higher studies in Forestry and obtained a Doctorate Degree in that subject. After reaching to affluent financial condition he did not return to India, but filed a petition for divorce in the Court of the State of Nevada in U. S. A. and obtained a decree for divorce from the said Court. Thereafter the appellant-wife filed a suit in the Jullunder Court for maintenance. Husband Teja singh resisted the said suit and contended that on account of the decree of divorce obtained by him against the plaintiff-wife from the Nevada Court, she ceased to be his wife and, therefore, fie was not liable to pay maintenance. The trial Court allowed the suit of wife Smt. Satya and passed a decree for maintenance. Ultimately, the matter went to High Court of Punjab and Haryana, and the High Court applying the old English rule that during marriage the domicil of the wife, without exception, follows the domicile of the husband. In that view of the matter, the High Court held that since respondent Teja Singh was domiciled in Nevada, so was appellant Smt. Satya in the eye of law and, therefore, the Nevada Court had jurisdiction to pass the decree of divorce. The High Court also relied on the decision of the Privy Council in Le Mesurier v. Le Mesurier, 1895 AC 517, and other decisions, and holding that the foreign judgment was legal and binding, dismissed the suit of the plaintiff-wife. The matter was then carried to the Supreme Court. The Supreme Court has observed:
"The answer to the question as regards the recognition to be accorded to the Nevada decree must depend principally on the rules of our Private International Law. It is well recognised principle that 'private international law is not the same in all countries'. There is no system of private international law which can claim universal recognition. ... ... It is implicit in that process that the foreign law must not offend against our public policy."
In para 9 it has been further observed:
"We cannot therefore adopt mechanically the rules of Private International Law evolved by other countries. These principles vary greatly and are moulded by the distinctive social, political and economic conditions obtained in these countries."
After discussing the various cases in respect of the decrees that are being obtained in Mexico, which has a great bearing so far as the present appeal is concerned, the Supreme Court has in para 18 observed:
"In determining whether a divorce decree will be recognised in another jurisdiction as a matter of comity, public policy and good morals may be considered. No country is bound by comity to give effect in its Courts to divorce laws of another country which are repugnant to its own laws and public policy. Thus, where a 'mail-order divorce' granted by a Mexican Court was not based on jurisdictional finding, of domicil, the decree was held to have no territorial effect in New Jersey. State v. Najjar, 2 NJ 208. American Courts generally abhor the collusive Mexican mail-order divorces and refuse to recognise them. Langner v. Langner, 39 NYS 2d
918. Mail-order divorces are obtained by correspondence by a spouse not domiciled in Mexico. Latey in his well-known book on divorce says that the facilities afforded by the Mexican Courts to grant divorces to all and sundry whatever their nationality or domicile have become even more notorious than those in Reno, Nevada' (The Law and Practice in Divorce and Matrimonial Causes" 15th Ed. (1973) p. 461) Recognition is denied to such decrees as a matter of public policy."
The aforesaid observations of the Supreme Court are very illustrative. Even the States of America, which are neighbouring States, have refused to recognise the decrees which are obtained from the Mexican Courts. The Mexican Courts have been considered even more notorious than those in Reno, Nevada. The Supreme Court has also observed that the Mexican Courts grant divorce decrees to all and sundry, whatever their nationality or domicile may be. The judgment Ex. 121, referred to earlier, does not state anywhere that the defendant-husband was a domicile of Mexico State or that he had an intention to continue his residence in Mexico. It appears from the tenor of the said judgment that even for a stay in a hotel for a short period a certificate may be granted, and on such certificate a decree can be obtained by a national of another State. There is no dispute that the defendant-husband was a domicile of India. However, for the sake of argument it can be said that as he was staying in U. S. A. since long, he may have opted for domicile of U.S.A. All the correspondence of near about dates is done from U. S. A. Nowhere, it is stated by the defendant-husband in his written statement that he had ever acquired the domicile of Mexico State. If the defendant was relying on the said judgment, he ought to have averred in his written statement that the decree was granted by a. Court having competent jurisdiction by relying on the fact of his domicile in Mexico. In absence of such averments, either in the written statement or in the body of the judgment Ex. 121, and the failure of the defendant husband to enter into the witness-box or to examine any witness on his behalf in the Court, it can safely be presumed that he has not contended that he was a domicile of Mexico, and the Court of Republic of Mexico w6s competent to pass a decree of divorce between the plaintiff and the defendant.
19-11-1984:
17. Domicil is a jurisdictional fact, and a foreign divorce decree is, therefore, subject to collateral attack for lack of jurisdiction even where the decree contains the findings or recitals of jurisdictional facts. The Supreme Court in the aforesaid case of Smt. Satya (AIR 1975 SC 105) (Supra) has referred to the decision in Untermann v. Untermann, 19 NJ 507, wherein a divorce decree obtained by a husband in Mexico after one day's residence therein was held invalid. Therefore, a foreign decree of divorce is subject to collateral attack for fraud or for want of jurisdiction, even though jurisdictional facts are recited in the judgment; such recitals are not conclusive and may be contradicted by satisfactory proof. The Supreme Court found that the decree which was obtained by respondent Teja Singh from Nevada Court was on the basis that he was a bona fide resident of and was domiciled in Nevada. Domicil being a jurisdictional fact, the decree was open to the collateral attack that the said respondent was not a bona fide resident of Nevada, much less was he domiciled in Nevada. The recital in the judgment of the Nevada Court that the said respondent was a bona fide resident of and was domiciled in Nevada was not considered to be conclusive and that it can be contradicted by satisfactory proof. Thereafter, in para 45 the Supreme Court observed:
"Thus, from 1960 to 1964 the respondent was living in Utah and since 1965 he has been in Canada. It requires no great persuasion to hold that the respondent went to Nevada as a bird-of-passage, resorted to the Court there solely to found jurisdiction and procured a decree of divorce on a misrepresentation that he was domiciled in Nevada. True, that the concept of domicil is not uniform throughout the world and just as long residence does not by itself establish domicile, brief residence may not negative it. But residence for a particular purpose fails to answer the qualitative test for, the purpose being accomplished the residence would cease. The residence must answer 'a qualitative as well as a quantitative test', that is, the two elements of factum at animus must concur. The respondent went to Nevada forum hunting, found a convenient jurisdiction which would easily purvey a divorce to him and left it even before the ink on his domiciliary assertion was dry. Thus, the decree of the Nevada Court lacks jurisdiction. It can receive no recognition in our Courts."
In the instant case, there is no averment whatsoever either in the judgment Ex. 121 or in the written-statement that defendant-husband was a domicil of Mexico State. The judgment Ex. 121 also does not show the duration of his residence in Mexico State. Two letters Exs. 85 and 86, referred to earlier, written by the defendant-husband show that he was all along staying in U. S. A. In my opinion, therefore, the judgment and decree obtained by the defendant-husband are at least analogous to mail-order divorce granted by a Mexican Court, as observed by the Supreme Court in part 18 of its judgment in Smt. Satya's case (AIR 1975 SC 105) (supra).
18. In the aforesaid view of the matter, the present defendant-Husband can never be said to be a bona fide resident of or that he was domiciled in Mexico State. Hence, he obtained the judgment by misleading the Court regarding his residence, when, as a matter of fact, he had no intention to reside permanently in Mexico or to acquire domicil of Mexico State, and his attempt to establish his residence was only for the purpose of getting easy divorce decree. Therefore, such a decree having been obtained by making a false representation as to the jurisdictional facts can never be said to be conclusive; it can be said to be a decree obtained by fraud within the meaning of S. 13(e) of the Code.
19. Mr. Desai for the plaintiff-wife has also attacked the judgment Ex. 121 of the Mexican Court on the ground mentioned in S. 13(b) of the Code, stating that the same has not been given on the merits of the case. This plea of Mr. Desai also shall have to be accepted because the said judgment states that the defendant-husband appeared before the Court only at the time of filing of the petition for divorce. Thereafter, it is nowhere mentioned that the defendant-husband had appeared before the said Court after service of the summons through the Official Gazette. Only the Counsel for the defendant-husband appeared and read the confession and/or submissions made either in the petition or in a separate document annexed thereto. Nowhere in the said judgment it is stated that after the alleged service the defendant-husband had personally appeared before the Court or had given his deposition or had produced any evidence. Even in the written statement filed by the defendant-husband in the present suit, he has not stated that he had personally appeared before the Mexican Court and had given evidence including his deposition. In the instant case he has not stepped into the witness box so that it can be ascertained from him that he had given evidence before the Mexican Court. If the defendant wants to rely upon the foreign judgment, he must establish from the said judgment or even by producing the pleadings or Roznama or any other relevant evidence that the said judgment has been given on merits.
20. In D. T. Keymer v. P. Visvanatham Reddi, AIR 1916 PC 121, the facts were that a decree was granted by an English Court and the defence of the defendant in that case was struck off. The said defendant had denied the alleged agreement with the plaintiff, but since his defence was struck off, no single one of those matters was ever considered or was ever the subject of adjudication at all. In point of fact what happened was that, because the defendant refused to answer the interrogatories which had been submitted to him, the merits of the case were never investigated and his defence was struck out. He was treated as though he had not defended, and the judgment was given upon that footing. The Privy Council, therefore, observed that such a decision cannot be regarded as a decision given on merits of the case within the meaning of S. 13(b) of the Code.
21. A Full Bench of the Madras High Court in R. E. Mahomed Kassim and Co. v. Seeni Pakir-bin-Ahmed, AIR 1927 Mad 265, relying upon the aforesaid decision of the Supreme Court in case of Keymer, has observed as under:
" ... ... As I understand Mr. Alladi Krishnaswami Ayyar's argument, he says that it is not like the case of the defendant's defence being struck out for not answering interrogatories or being out of time or anything of the kind; for that may be held not to be a defence on the merits because ex hypothesis the position is the defendant was precluded from going into the alleged merits which he had set up and he says it is quite different where the defendant does not appear at all because that is a clear intimation by him that he admits the validity of the plaintiffs claim and that is just as good as if the plaintiff has actually proved it by evidence. I think the decision of their Lordships of the Privy Council impliedly excludes any such distinction and I regret to say that I cannot agree with the attempt made by two learned Judges of this Court to draw this distinction in Janoo Hassan v. Mahomad Ohuthu, AIR 1925 Mad 155, and I think that the case must be regarded as no longer law."
In that very case Justice Krishnan has specifically observed:
".... .I have no doubt whatever that under S. 13(b) of the Civil P.C. a decree obtained on default of appearance of the defendant without any trial on evidence is a case where the judgment must be held not to have been given on the merits of the case."
In the last para of his judgment in that case Krishnan J., has referred to the procedure that was prevailing in Penang Court as under:
"... ...However, that matter does not really arise here, for this case is clearly one where the decision was given without any evidence at all, but under the rules governing the Penang Court under which, where the defendant does not appear, a decree is given as a matter of course."
The present plaintiff-wife also did not appear before the Mexican Court and under the procedure of the said Court, a decree for divorce was passed against her without recording any evidence after the alleged publication of the service in the Official Gazette. I, therefore, hold that the judgment of the Mexican Court is not given on merits.
22. The third contention of Mr. Desai that the judgment obtained from the Mexican Court is opposed to natural justice, shall also have to be accepted, because the said judgment does not disclose that the plaintiff-wife was served personally, but the service was effected by a notification in the Official Gazette of the Republic. of Mexico according to the procedure of the Mexican Courts. It is an admitted position that the plaintiff-wife has not submitted to the jurisdiction of the Mexican Court, nor had she filed any defence. Though the defendant- husband has averred in para 5 of the written statement that summons was served upon the plaintiff-wife and she was in the know of the alleged proceedings, not a single question has been asked to the plaintiff-wife regarding the service of the summons. The defendant husband has not stepped into the witness-box to show that any summons was served upon the plaintiff-wife. It is not necessary to go to that extent because the judgment Ex. 121 itself shows that the plaintiff-wife was served only by Gazette publication, which may be an accepted procedure in Courts of Republic of Mexico. However, service by publication of notice in the Official Gazette of a foreign State can never amount to proper service so as to satisfy the bare necessity of rule of justice, viz. audi alteram partem.
23. The Supreme Court in Sankaran Govindan v. Lakshmi Bharathi, AIR 1974 SC 1764, while interpreting S., 13(d) of the Code has, in para 38, observed:
"... ... The expression 'contrary to natural justice' has figured so prominently in judicial statements that it is essential to fix its exact scope and meaning. When applied to foreign judgments, it merely relates to the alleged irregularities in procedure adopted by, the adjudicating Court and has nothing to do with the merits of the case. If the proceedings be in accordance with the practice of the foreign Court but that practice is not in accordance with natural justice, this Court will not allow it to be concluded by them. In other words, the Courts are vigilant to see that the defendant had not been deprived of an opportunity to present his side of the case : see Cheshire's Private International Law, 8th edn. p. 656. The wholesome maxim: Audi alteram partem is deemed to be universal, not merely of domestic application and therefore, the only question is, whether the minors had an opportunity of contesting the proceeding in the English Court."
24. In Edulji Burjoiji v. Sorabji Patel, (1886) ILR 11 Bom 241, which is a Division Bench decision, it has been observed
"The defendant was sued as a contributory on the 'B' list of shareholders liable in the winding up of the London, Bombay and Mediterranean Bank. The Bank was an English joint stock company registered under the English Companies Act, 1862, and the winding up order was made by the Court of Chancery in England on the 20th July, 1866. By a subsequent order made on the winding up it was ordered by the said Court that service of notices, etc., of the various proceedings might be effected on contributories, being past members, by posting the same either in England or in Bombay duly addressed to the last known address or place of abode of such contributories. The Court of Chancery on the 16th Dec. 1878, made an order for a call of E 10 per share upon the contributories, and on the 5th June, 1879, the final balance order was made by the Court. This suit was brought to recover the sum of Rs. 754.70 alleged to be due by the defendant as a contributory in the B list under the said balance order. The plaintiff was an assignee of the Bank. The defendant, who resided at Sumari, in the Surat District, denied that he was a shareholder in the bank, and alleged that he had had no notice of the various proceedings in the winding up. At the hearing it was proved that one of the notices which had been posted in Bombay addressed to the defendant at Sumari, in the Surat District, viz., a notice of the intended application for a call of # 10 a share, dated the 27th August, 1878, had been returned undelivered to the Dead Letter Office, having been carelessly addressed. No further steps were taken to serve it on the defendant.
Held, that the defendant, not having received any summons or notice to attend the hearing of the application for a call of # 10 per share, was not liable to the call made in his absence.
Courts in British India, when called upon to give effect to a foreign judgment, should insist upon a strict proof of the validity and service of summonses and other processes alleged to have emanated from a foreign Court, and made a foundation for a liability to be enforced here by Courts that have no cognizance of the case on its merits."
25. In R. Viswanathan v. Abdul Wajid, AIR 1963 SC 1, the Supreme Court after referring to various books on International law and quoting relevant portions there from, has in para 40 summed up as under:
"... ... By S. 13 of the Civil P.C. (Act V of 1908) a foreign judgment is not regarded as conclusive if the proceeding in which the judgment was obtained is opposed to natural justice. Whatever may be the content of the rule of private international law relating to natural justice' in England or elsewhere (and we will for the purpose of this argument assume that the plea that a foreign judgment is opposed to natural justice is now restricted in other jurisdictions only to two grounds - want of due notice and denial of opportunity to a party to present case) the plea has to be considered in the light of the Statute law of India, and there is nothing in S. 13 of the Civil P.C. 1908, which warrants the restriction of the nature suggested."
The aforesaid observations of the Supreme Court, though not directly on the point in issue, do suggest that procedure should not be opposed to the principles of natural justice. Other party must have due notice of the proceedings initiated against him or her. Notice in the Official Gazette of Republic of Mexico, under the circumstances, cannot, be said to be a notice to the plaintiff-wife. It is neither reasonable nor proper, and is contrary to the provisions contained in the Code for service of summons. In the aforesaid view of the matter, Judgment Ex. 121, also suffers from invalidity under S. 13(d) of the Code.
26. Having found that the -decree of divorce obtained by the defendant-husband cannot be relied upon and has no effect in dissolving the marriage of the plaintiff-wife with the defendant-husband, I shall have to consider as to what should be the amount of maintenance that could be awarded to the plaintiff-wife. Mr. Marshal for the defendant husband has prayed for, reduction of the amount of maintenance awarded to the plaintiff-wife by the trial Court on the ground that the defendant-husband is not financially sound to pay that much amount. Whereas, Mr. Desai for the plaintiff-wife, has prayed that the amount of maintenance awarded by the trial Court be enhanced to Rs. 1,000/- per month. Mr. Desai has stated that unfortunately his client has made a modest claim, though under the settled law she would be entitled to half of the income of the husband. Mr. Desai has further submitted that the Court will take into account the efforts made by the plaintiff wife to obtain the information from the defendant-husband and the attitude of the defendant-husband to conceal every possible fact regarding his financial position.
27. In order to appreciate the rival contentions of the parties, it will be necessary to refer to the pleadings of the parties on this point. In para 5 of the plaint, the plaintiff-wife has stated that the defendant has completed his studies in America and is doing a very lucrative business. His monthly income is about $ 1,700/- (i.e. about Rs. 11,900/-), and in India he is possessing one-sixth share in the properties shown in the Yadi, annexed to the plaint, and the said properties fetch an income of about Rs. 20,000/- per year. In that way, the financial position of the defendant-husband is very sound, and in spite of that he has not sent a single pie for her maintenance, nor has he shown interest to take care of her or her children and has thus ruined her life. Under the circumstances, looking to the financial position, status in the society and creditworthiness of the defendant-husband, she has claimed an amount of Rs. 1,000/- per month as maintenance.
28. Defendant-husband has in para 7 of his written statement, which is signed by him, has denied that he was earning 1,700/- dollars, i.e. Rs. 11,900/- per month. He has also denied that he has one-sixth share in the properties in India, and that the yearly income of the said properties is Rs. 20,000/- However, his contention is that the plaintiff-wife has got up this story to get sympathies of the Court, etc. He has denied his liability to pay any maintenance to the plaintiff-wife. He has stated that he is not in a position to pay Rs. 1,000/per month. In my opinion, this written statement is as vague as it could be. The defendant-husband is well-educated, i.e. in India he got a degree in Engineering, and thereafter went to U. S. A. and completed his studies, and he must not have obtained less than a Master's Degree in Engineering, but more, and must be earning handsome amount. In such a case it is his duty to disclose his income if he does not agree with the specific averments made by the plaintiff-wife regarding his income. If he denies that he is not earning 1,700/- dollars per month, that might lead to two inferences, viz., his income per month may be either more or less than 1,700/- dollars. So far as the income of the properties in India are concerned, the defendant-husband had threatened in his previous letters Exs. 85 and 86, that neither the plaintiff-wife nor her children will get a pie from the income of the said properties or the properties, if the plaintiff wife was not prepared to give divorce. Even in this behalf the defendant has in his written statement not given any figure of the income, but has simply denied the income of Rs. 20,000/-.per year. It may be more or less. One does not know.
29. Order VIII of the Code deals with "Written Statement, Set-off and Counterclaim". Rules 3, 4 and 5 are the legal provisions which apply to the written statement. Rule 4 which is material for our purposes, reads:
"4. Where a defendant denies an allegation of fact in the plaint, he must not do so evasively, but answer the point of substance. Thus, if it is alleged that he received a certain sum of money, it shall not be sufficient to deny that he received that particular amount, but he must deny that he received that sum or any part thereof, or else set out how much he received. And if an allegation is made with diverse circumstances, it shall not be sufficient to deny it along with those circumstances."
This rule is directly applicable to a case where plaintiff alleges that the defendant is receiving a particular amount of income. It is not sufficient to say only that he is not receiving that income. In the instant case, therefore, the denial being evasive, it can very well be presumed that the defendant-husband is not in a position to deny the averments of facts on verification, especially when he is in possession of all the facts regarding his income and when he has paid income-tax, he must be in' possession of the Assessment Orders.
30. The next important argument of Mr. Desai is that having realised that the defendant husband has made evasive denial in his written statement regarding his income, the plaintiff wife made an application Ex. 26 on 5-1-1971 under R. 12 of 0. 11 of the Code for discovery of documents, and for an order directing the defendant to make discovery on oath of the documents regarding his income which are in his possession or power. The trial Court by its order dated 11- 1-71 directed the plaintiff-wife to give particulars regarding the documents required by her. Therefore, the plaintiff-wife gave another application Ex. 28 on 16-1-1971 giving full particulars. This was objected by the defendant-husband. After hearing both the parties, the trial Court by its order dated 27-1-1971 directed the defendant to disclose on oath the documents in his possession or power, as required under O. 11, R. 12 of the Code. Instead of the defendant filing the affidavit himself, his brother Chhaganlal Patel, who is his power of attorney holder, filed the same. It is, therefore, necessary to refer to the said affidavit to show how the defendant husband has tried to evade all possible efforts of the plaintiff-wife to bring out the fact as to actually what amount the defendant-husband is earning in U. S. A.
31. In application Ex. 28, the plaintiff-wife has in terms stated that the particulars regarding the documents which she required the defendant to produce on oath were (1) the books of account of his business, (2) assessment orders passed by the Income-tax Officer in respect of defendant's income, (3) Bank Accounts running in the name of the defendant, and (4) documents of lease obtained or executed by the defendant, etc. In the affidavit Ex. 32, filed by Chhaganlal Chhotubhai Patel, brother and power of attorney holder of the defendant, it is stated that no such documents are in their possession or in possession of their Advocate. It appears that the defendant's father might be in possession of some documents and, therefore, he might have thought it fit not to file the affidavit. This approach on the part of the defendant-husband clearly goes to show that he is not prepared to produce any of the aforesaid documents though he or his power of attorneys might be in possession thereof. The reason for not producing any such documents could only be that if the same are produced, the case would go in favour of the plaintiff-wife, or that the income of the defendant-husband might be more than that averred by the plaintiff-wife in her plaint. I agree with the contention of Mr. Desai that in view of the evasive written statement and nondisclosure of the documents by the defendant or his power of attorneys in spite of the order of the Court, and not filing a proper affidavit by the defendant himself stating that he is not in possession of any such documents, adverse inference must be drawn against the defendant to the effect that if the said documents were produced, they would go against the defendant.
32. The defendant-husband has engaged an Advocate to fight the litigation. He has appointed two power of attorneys, viz. his father and brother. He is possessing properties in India. He has deserted his wife and children and is not prepared to call them to U. S. A. or to pay any maintenance simply because the plaintiff-wife refused to give consent divorce" or customary divorce, if permissible. The defendant's Advocate has extensively cross examined the plaintiff-wife and her father. However, when the time came for the defendant to give evidence, he made an application dated 23-10-1972, Ex. 102, requesting that he and his five witnesses - 4 from Mexico and I from U. S. A. - be examined on Commission. The learned trial Judge readily granted the said application by his order dated 27-10-1972, and directed that a commission be issued to America for examination of witnesses. The learned trial Judge was also of the view that having regard to the provisions of law, the Court had no jurisdiction to direct the husband to provide for the costs of the wife which she may have incurred in connection with the examination of the witnesses on commission in Mexico and U. S. A.
33. The defendant-husband was interested in delaying the proceedings because he was not paying a single pie to the plaintiff wife towards her maintenance, and under the circumstances she had to approach this Court by way of Civil Revn. Appln. No. 50 of 1973. The said application was decided by this Court (M. P. Thakkar, J., as he then was) on 24-6-1974. Therein it has been observed:
"The learned Counsel for the petitioner wife is right in his submission that no reason is shown for the necessity to examine the four witnesses from Mexico and the fifth witness from United States. It is not shown that their evidence is either necessary or relevant or material. Tiff it is shown that their evidence is relevant and material, a commission cannot be issued unless it is being issued to enable the opponent-husband to protract the litigation and perpetrate further injustice by depriving his wife and his two children of maintenance. So far as the husband is concerned, there is no reason why he should not come to India in order to contest the suit. In a case like the present, the presence of the husband would be necessary in order to do complete justice between the parties. Presently he is contesting the suit through his constituted attorney. It appears that the application has been made mala fide with a view to prolonging the litigation and tiring out the petitioner-wife. Under the circumstances, the order passed by the learned trial Judge cannot be sustained.
"... ...Be that as it may, the Court cannot countenance a mala fide manoeuvre of a party who wants to defeat the ends of justice even if it is his own wife and children who are affected thereby. This is, therefore, a case where the High Court must interfere in order to prevent miscarriage of justice."
It appears from the aforesaid observations that this Court was convinced that the defendant-husband was making all possible efforts to prolong the litigation so that the plaintiff-wife may tire out and may not prosecute the case further on account of financial handicap, and ultimately he may not be required to pay any maintenance to her. It may also be noted that even after the decree of the trial Court, the, defendant-husband has not paid to the plaintiff-wife even a paltry amount of Rs. 250/- per month. This would go to show that this Court was right when it observed that the application made by the defendant-husband for commission was with a mala fide intention.
34. Mr. Marshal for the defendant has contended that the plaintiff-wife had no personal knowledge and her evidence regarding the income of the defendant in USA and the income of his property in India was merely a guesswork and, therefore, she had failed to adduce any evidence in that behalf and the maintenance of Rs. 250/- per month fixed by the trial Court is not supported by any evidence. It is not possible to accept this contention of Mr. Marshal in the light of the following circumstances :
(1) The defendant-husband is staying in U. S. A. and has not allowed the plaintiff-wife or her children to k now his affairs in U. S. A. Letters written by him also do not give any indication as to whether he is doing service or business.
(2) The plaintiff-wife has no means to know the affairs of the defendant-husband. She does not know English language. She is coming from a middle class Patidar family. The defendant-husband is staying in foreign country where the Income-tax Department generally is not supplying any details or data regarding the income.
(3) The plaintiff-wife is very poor and has no financial resources to go to U. S. A. and make personal inquiry.
(4) The defendant-husband has taken higher education in U. S. A., which may be either a Master's Degree or Doctorate Degree in Engineering, and the Engineers and Doctors are considered to have very lucrative income in U. S. A.
(5) The defendant-husband has not stepped into the witness-box and thus he has deprived the plaintiff-wife to extract necessary information from him in support of her case.
(6) Even Chhotubhai, father and power-of attorney of the defendant, who is in the management of the properties of the defendant in India, has not stepped into the witness-box.
(7) The defendant-husband has filed evasive written statement and has not given any clue, either in regard to his employment or business or the nature of his income.
(8) The defendant-husband has also not come forward to answer the particulars regarding his income and has evaded the orders of the Court by filing affidavit of his brother.
(9) It cannot be doubted that the defendant husband is in special knowledge of his own income and, therefore, he was supposed to prove that his income was either less or more than that alleged by the plaintiff-wife.
(10) Father of the defendant has also not produced the documents or accounts of the income of the properties of the defendant in India.
35. Mr. Marshal contended that it is initially for the plaintiff-wife to prove that the income of the defendant-husband is 1,700/-dollars per month. It is, no doubt, true that under the provisions of Ss. 101 to 104 of the Evidence Act, the plaintiff has to prove her case, but the proof which is demanded from the party is a proof which can be obtained by the plaintiff with reasonable care and diligence. The plaintiff is not supposed under the provisions of S. 104 of the Evidence Act to prove a thing which, under the circumstances, is impossible for the plaintiff to prove, especially when the facts regarding the income are within the special knowledge of the defendant. Mr. Marshal is not in a position to deny that his client is not aware of his own income or that the father of the defendant is not in the knowledge of the income derived from the properties in India managed by him. When the question regarding the proof of the income of the other contesting party is to be determined, in such circumstances the plaintiff can only give the figure on guesswork and not the exact figure. It is also the duty of the plaintiff to make every effort to get that information. In the instant case the plaintiff has done everything that was possible for her within her financial resources to extract the information regarding the income of the defendant-husband. She has made specific averments in her plaint and evidence. She has also made application under O. 11, R. 12 of the Code for production of documents and particulars. She has stepped into the witness box and submitted herself to searching cross-examination. No doubt, she has admitted that the income of the husband which she has stated is her guesswork. It is a matter of common knowledge that in U. S. A. Engineers and Doctors ate the most affluent class having lucrative income. The defendant must be possessing at least a Master's Degree in Engineering. He must, therefore, either be doing business or job, and the income of such a highly qualified engineer in U. S. A. is between 30,000/- to 50,000/- dollars per year, i.e. 2,000 to 4,000/- dollars or more per month. The plaintiff-wife has taken the minimum income and has given a very modest figure of 1,700/- dollars per month, which is, no doubt, in way guesswork. The plaintiff must have heard all these things from her relatives. Her father is also coming from a middle class family with little education. The parties are staying in a remote village of Bulsar District. The defendant-husband has not produced the documents which are in his possession and relevant for the decision of the suit. Neither the defendant nor his power of attorneys have come forward to give evidence, because they knew that if they step into the witness-box, they shall have to give reply in respect of the income of the defendant. The defendant has not filed any affidavit regarding the particulars demanded by the plaintiff-wife, but has caused his brother and not his father to file affidavit on his behalf, which is totally vague. Under the circumstances, the Court will be justified in raising adverse inference that the defendant is in possession of the documents regarding his income and has not produced the same, because it was within his knowledge that if the same are produced, they will help the case of the plaintiff.
36. Mr. Desai, in reply to the argument of Mr. Marshal regarding the burden of proof, has relied upon the decision of the Supreme Court in Gopal Krishnaji Ketkar v. Mohamed Haji Latif, AIR 1968 SC 1413. In the said case, the question was whether the land comprised in survey No. 134 of village Wadi of Thana District, on a portion of which the Dargah of Peer Haji Malang near Kalyan is situated, was the property of the Dargah or whether it belonged to the appellant, a private party who was the applicant ~before the Authority under the Bombay Public Trusts Act, 1950. The said appellant claimed that the said survey number was his private property. He was in possession of certain documents which were not produced and, therefore, the Supreme Court has in Para 5 of its judgment observed
"...... In the course of his evidence the appellant admitted that he was enjoying the income of plot No. 134 but he did not produce any accounts to substantiate his contention. He also admitted that he had got record of the Dargah income and that account was kept separately. But the appellant has not produced either his own accounts or the account of the Dargah to show as to how the income from plot No. 134 was dealt with. Mr. Gokhale, however, argued that it was no part of the appellant's duty to produce the accounts unless he was called upon to do so and the onus was upon the respondents to prove the case and to show that the Dargah was the owner of plot No. 134. We are unable to accept this argument as correct. Even if the burden of proof does not lie on a party the Court may draw an adverse inference if he withholds important
documents in his possession which can throw light on the facts at issue. It is not, in our opinion, a sound practice for those desiring to rely upon a certain state of facts to withhold from the Court the best evidence which is in their possession which could throw light upon the issues in controversy and to rely upon the
abstract doctrine of onus of proof. In Murugesam Pillai v. Gnana Sambandha Pandara Sannadhi, 44 Ind App 98 at p. 103 : AIR 1917 PC 6 at p. 8 Lord Shaw observed as follows:
"A practice has grown up in Indian procedure of those in possession of important documents or information lying by, trusting to the abstract doctrine of the onus of proof, and failing, accordingly, to furnish to the Courts the best material for its decision. With regard to third parties, this may be right enough they have no responsibility for the conduct of the suit, but with regard to the parties to the suit it is, in their Lordships opinion, an inversion of sound practice for those desiring to rely upon a certain state of facts to withhold from the Court the written evidence in their possession which would throw light upon the proposition."
The aforesaid observations of the Supreme Court are directly applicable to the facts and circumstances of the present case. In the instant case the plaintiff-wife has done her level best to extract the information regarding the income of the defendant-husband, who is the only person having knowledge regarding his own income and in possession of the relevant documents, like the Income-tax assessment orders, etc. Neither the defendant nor his power of attorneys have stepped into the witness-box or produced the relevant documents in their possession. They are relying upon the abstract doctrine of onus of proof. In such circumstances, the Court would be justified in drawing adverse inference against the defendant, and the defendant cannot be allowed to rely upon the abstract doctrine of onus of proof.
37. Considering the peculiar facts and circumstances of the case, in my opinion, provisions of S. 106 of the Evidence Act would also be attracted. The fact regarding the income of the defendant and the income of the property in possession and management of the father of the defendant was within their special knowledge. They are not third parties. The defendant is the husband and his father is also under a legal obligation to maintain his daughter-in-law from the income of the properties which are in his management and possession. Both have committed default. They are withholding the evidence in their possession, and are not answering the averments of the plaintiff as provided under O. 8, R. 5 of the Code. Under the circumstances, the guess-work made by the plaintiff-wife and the specific averment made by her in Para 5 of the plaint, that the income of the defendant-husband is 1,700/- dollars per month, and the income from the properties in India is Rs. 20,000/- per year, is acceptable as evidence. Mere assessment of the plaintiff regarding the income of the defendant-husband and the income of the property in possession of his father based upon information of her relatives, which is not controverted specifically by the defendant in his written statement, and in view of the circumstances that neither the defendant nor his father, who is in the management of the said properties in India having stepped into the witness-box nor have they produced material documents in their possession, requires to be accepted as proof in this case. I, therefore, hold that the income of the defendant-husband was 1,700/- dollars in year 1969, and the income from the property in possession and management of the father of the defendant in India was Rs. 20,000/- per year.
38. Mr. Marshal has then argued that all the properties in possession of the father of the defendant are not the joint family properties, as alleged by the plaintiff, but some of them are of the ownership of the father of the defendant alone. In support of his argument he has invited my attention to the deposition of Rambhai Morarji, Ex. 100, examined by the plaintiff. Said Rambhai has stated that certain properties are joint, family properties and certain properties are of the father of the defendant. No doubt, evidence of Rambhai is somewhat confusing, but, in my opinion, that is immaterial, because it has not been suggested by anybody that this witness Rambhai had seen the documents of the parties. I am at present not concerned as to which are and which are not the joint family properties, because title is not to be decided. It is only to be considered whether the joint family properties in possession of the father of the defendant were yielding income of Rs. 20,000/per year in 1969 or not. There is evidence on record to show that the said properties fetched income of Rs. 15,000/- to Rs. 20,000/- per year. The trial Court has accepted this evidence, and I see no reason to interfere with that finding especially when all the documents in regard to the income of the said properties are in possession of the father of the defendant who has not produced them in spite of best efforts made by the plaintiff-wife. The defendant's father has not stepped into the witness-box to support his contention. On the contrary, reply given by the defendant is totally vague and evasive. It has not been mentioned as to what is the actual income the defendant is deriving from the said joint family properties. Under the circumstances, I see no reason to interfere with the finding of facts arrived at by the learned trial Judge who had the advantage to mark the demeanour of the witnesses before him in the Court.
39. The next question for consideration is as to what should be the quantum of maintenance that can be awarded to the plaintiff-wife. Evidence regarding the income of the defendant-husband on record is that he is earning 1,700/- dollars per month. Amount of Rs. 15,000/- per year is believed by the trial Court to be the income derived from the joint family properties. It is an admitted position that the defendant-husband has one-sixth share in the said properties. However, in the instant case it is not necessary to calculate the exact income of the defendant, because the plaintiff wife has demanded as maintenance only an amount of Rs. 1,000/- per month. Income of 1,700/- dollars is found to be equivalent to Rs. 11,900/- per month, Le, Rs. 12,000/- per month (approximately).
40. Now, it would be necessary to consider the claim of maintenance with regard to the provisions of S. 23 of the Hindu Adoptions and Maintenance Act, 1956 (hereinafter referred to as 'the Act'). Under S. 18 of the Act, a Hindu wife is entitled to be maintained by her husband during her life-time. S. 23 of the Act gives discretion to the Court to determine what maintenance should be a-warded to wife under the provisions of the Act, and in doing so, the Court shall have due regard to the considerations set out in sub-section (2.) or (3) of S. 23 of the Act, as the case may be, so far as they are applicable. Considerations set out in sub-section (2) of S. 23 of the Act and which apply to the instant case are:
"23(2) In determining the amount of maintenance, if any, to be awarded to a wife, children, or aged or infirm parents under this Act, regard shall be had to --
(a) the position and status of the parties;
(b) the reasonable wants of the claimant;
(c) if the claimant is living separately, whether the claimant is justified in doing so;
(d) the value of the claimant's property and any income derived from such property, or from the claimant's own earnings or from any other source;
(e) the number of persons entitled to maintenance under this Act."
So far as the claim of the plaintiff-wife is concerned, it has been proved that she has no property or any income. She has studied only upto 7th Standard. The claimant is entitled to live separately and has a right of residence, but on account of the defendant-husband she is not able to live separately in spite of her desire. So far as the defendant-husband is concerned, he is all alone in U.S.A. and has no burden to maintain anybody except his wife and children, but has not come forward to maintain them. Therefore, the only two relevant considerations with the discretion of the Court are position and status of the parties and the reasonable wants of the claimant. So far as "wants" are concerned, the same are correlated with the status and income of her husband. If the earnings of the husband are high, a comfortable living will amount to "the reasonable wants of the claimant", because she is entitled to live according to the position, status and income of her husband. The husband is a foreign qualified Engineer. The wife is coming from a middle-class Patidar family and her financial condition is poor. Father of the defendant-husband is the manager and landlord of the agricultural lands which yield income of Rs. 20,000/- per year. Therefore, the amount of maintenance should have direct nexus with the income of the husband, and the Court has to fix the amount of maintenance of the plaintiff-wife, having due regard to the income of the defendant husband, which is admittedly Rs. 12,000/- per month plus one-sixth share in the joint family income. Assuming that the defendant-husband is paying 25 to 30 per cent of his income as Income-tax, his not income cannot be less than Rs. 8,000/- per month in year 1969, according to the say of the plaintiff-wife.
41. There are decisions which show that a wife may be awarded maintenance to the extent of one-third, and in appropriate cases even to the extent of one-half of the income of the husband. In Jagdish Prasad Tulsan v. Sm. Manjula Tulsan, AIR 1975 Cal 64, the Calcutta High Court, while deciding permanent alimony under S. 25 of the Hindu Marriage Act, 1955, has fixed the maintenance at one-third of the net income of the husband. In Dinesh Gijubhai Mehta v. Smt. Usha Dinesh Mehta, AIR 1979 Bom. 173, a Division Bench of the Bombay High Court, while fixing the interim maintenance under S. 24 of the Hindu Marriage Act, rejected the contention of the Advocate of the husband that the wife under no circumstances can claim more than one fifth of the net income of the husband, which was a provision under the Indian Divorce Act. Even in the interim alimony out of the net income of Rs. 720/- per month found by the Court, which the husband was earning, the Court awarded Rs. 350/- per month, i.e. almost more than one-third and less than one-half.
42. In Dr. Kulbhushan Kunwar v. Smt. Raj Kumari, AIR 1971 SC 234, the trial Court decreed the suit awarding Rs. 100/- per month to the wife. The High Court allowed the claim of the wife to a monthly maintenance of Rs. 250/- from the date of the institution of the suit subject to a limit, i.e., that the husband would not be liable at any time to pay more than 25 per cent of the total income as accepted by the income-tax authorities by way of maintenance. With regard to the daughter, the High Court fixed the amount of maintenance at Rs. 150/- per month subject to similar limit as in the case of the wife, the quantum being directed not to exceed 15 per cent of the average monthly income of the father. Thus, the High Court in all awarded 40 per cent share from the income of the husband to be paid to the wife and daughter. In the appeal before the Supreme Court, so far as quantum of maintenance is concerned, it was argued that the decision of the Board (AIR 1929 PC 128) one-eighth of the income was awarded as maintenance and the same should be accepted by the Supreme Court. The Supreme Court in paras 18 and 19 observed :
"It was argued before us that inasmuch as the Board allowed as quantum of maintenance 1/8th of the net income of the estate we should adopt the same rate. In our view the Board laid down no principle related to the proportion of the free income allowable by way of maintenance from the estate. It is to be borne in mind that the maintenance claim was by a widow of a Brahmin family although highly placed in life. Here we have the case of a wife who was neglected by her husband not in affluent circumstances but certainly with means to support a wife on a reasonable scale of comfort.
It was further argued before us that the High Court went wrong in allowing maintenance at 25 per cent. of the income of the appellant as found by the 1hcome-tax Department in assessment proceedings under the Income-tax Act. It was contended that not only should a deduction be made of income tax but also of house rent, electricity charges, the expenses for maintaining a car and the contribution out of salary to the provik1mt fund of the appellant. In our view some of these deductions are not allowable for the purpose of assessment of 'free income' as envisaged by the Judicial Committee. Income tax would certainly be deductible and so would contributions to the provident fund which have to be made compulsorily. No deduction is permissible for payment of the house rent or electricity charges. The expenses for maintaining the car for the purpose of appellant's practice as a physician would be deductible only so far as allowed by the Income-tax authorities, i.e. in case the authorities found that it was necessary for the appellant to maintain a car." In para 21 the Supreme Court has observed:
"A sum of Rs. 250/- per month for the maintenance of the wife of a person occupying the position of the appellant cannot be said to err on the liberal side. The High Court in our opinion very rightly fixed that sum making it, subject to the limit of 25 per cent. of the income as found by the Income-tax authorities."
The Supreme Court also maintained the amount of maintenance of Rs. 150/- per month awarded to the daughter.
43. It, therefore, follows that there is no hard and fast rule, and each case depends on its own facts, and the Court has been given wide discretion to fix the amount of maintenance, keeping in mind the provisions of S. 23(2) of the Act. In the aforesaid case before the Supreme Court, the wife and the daughter were given 40 per, cent maintenance of the net income of the husband. In my opinion, therefore, if the income of the husband is on the higher side and if he has no obligation to maintain any other persons except himself, and if the wife is neglected, who has to maintain two children, the share from the income of the husband to which the wife should be entitled may be considered to the extent from one-third to one-half, depending upon the circumstances of the case and the need of the family. In the instant case, the net income of the husband is assessed at Rs. 2,000/- per month plus some income from the joint family properties. The amount of Rs. 1,000/- per month claimed by the plaintiff-wife is less than one-eighth of the net income of the defendant-husband and, therefore, it is not necessary, in the instant case, to decide the percentage to which the plaintiff wife will be entitled to. At least, she is entitled to Rs. 1,000/as maintenance per month from the date of the suit till she is alive, subject to her right to apply for enhancement of maintenance in accordance with the income of the defendant husband under S. 25 of the Act.
44. The plaintiff-wife has also claimed interest on the amount of maintenance from the date of the suit. The trial Court has passed the decree on 22-4-1975, and directed the defendant-husband to pay. to the plaintiff-wife the amount of arrears of maintenance within two months from the date of the decree. The defendant-husband has failed to make any payment. Under the circumstances, therefore, it would be in the interest of justice to direct the defendant-husband to pay interest on the amount accrued due at the rate of 6 per cent. per Annum from the date of the decree of the trial Court till realisation, and also to pay interest at the same rate on further arrears if the amount of maintenance is not paid every month.
45. In the result, the appeal is dismissed. The Cross-objections filed by the plaintiff wife are allowed. The defendant-husband is directed to pay to the plaintiff-wife maintenance at the rate of Rs. 1,000/- per month, instead of Rs. 250/~ per month awarded by the trial Court, from the date of the suit, i.e. 2-4-1969. The defendant-husband. is also directed to pay arrears of maintenance uptil now with interest at the rate of 6 per cent. per annum from the date of the suit within a period of one month from to-day. He is further directed to pay future maintenance at the same rate every month starting from 1-12-1984, till the plaintiff-wife is alive. The order of the trial Court creating charge on one-sixth undivided share of the defendant-husband on the properties mentioned therein is confirmed.
46. As the suit and the Cross-objections are filed in forma pauperis, a copy of the decree be sent to the Collector, Valsad, for recovery of the Court-fees payable by the plaintiff-wife from the joint family properties of defendant-husband under O. 33, R. 14 of the Code.
47. The appellant-defendant-husband is directed to bear his own costs and to pay the costs of the respondent-plaintiff all throughout including that of the Cross-objections.
48. Appeal dismissed and cross objections allowed.

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