Calcutta High Court
Smt. Chandana Guha Roy vs Goutam Guha Roy on 26 September, 2003
Equivalent citations: AIR 2004 Cal 36, I (2005) DMC 607
Author: A K Mitra
Bench: A K Mitra
ORDER Arun Kumar Mitra, J.
1. This revisional application has been made challenging the Order No. 21 dated 4-2-2002 passed by the learned Addl. District Judge, 5th Court, Alipore in Misc. Case No. 5 of 2001 arising out of MAT Suit No. 54/2000. The husband/O.P. filed a Matrimonial Suit being MAT Suit No. 54/ 2000 praying for divorce. The petitioner got married with the respondent and the marriage was solemnised according to Hindu Rites and Customs on 9-4-1998. The petitioner alleged that she was sent to have parental home by the husband-respondent on 26-7-2000 and the petitioner had to depend on her father. The petitioner did not pay the single farthing to the petitioner even if when she became ill, her medical expenses were not also borne by the husband. According to the petitioner, she was tortured when she was in the matrimonial home and ultimately when the petitioner was forced to go to her parental house the respondent did not pay or did not look after the petitioner and as such the petitioner had to pass her days with great financial hardship. In such a circumstance the petitioner filed an application under Section 24 of the Hindu Marriage Act, 1955 claiming alimony pendente lite and the said petition filed in the said Matrimonial Suit was numbered as Misc. Case No. 5/ 2001. The petitioner also stated that she has also filed an application under Section 125 of the Cr.P.C. before the Chief Judicial Magistrate. Barasat which is still pending. According to the petitioner, the husband-respondent is a diploma-holder in Mechanical Engineering (L.M.E.) and he is an employee of Garrison Engineering Company Pvt. Ltd. and he earns Rs. 10,000/- per month. The petitioner claimed alimony pendente lite to the tune of Rs. 3000/- per month. The husband-respondent has also filed an application for maintenance against the wife claiming that the wife is a graduate and out of private tuition she earns Rs. 5000/- per month and the husband has claimed maintenance of Rs. 2000/- per month from the wife. The husband-respondent filed objection before the trial Court to the application for maintenance filed by the petitioner under Section 24 of the Hindu Marriage Act. In the said objection the husband-respondent submitted that he was the store-in-charge of Garrison Engineering Company. The petitioner-wife filed a criminal case before Maniktala Police Station and the respondent-husband was arrested in connection with the said criminal case and when he came out on bail his service was terminated and since then he is unemployed and moving like a vagabond. The respondent-husband also filed an application for maintenance claiming alimony to the tune of Rs. 2000/- per month and alleging that since the wife-petitioner is earning Rs. 5000/- per month out of private coaching, he is entitled to get maintenance. After hearing the wife-petitioner and the husband-O.P. before the trial Court, the learned Trial Judge rejected both the petitions — one filed by the petitioner-wife and the other filed by the husband-respondent.
2. Challenging the aforesaid rejection order the wife has come to this Court.
3. The learned counsel for the petitioner submits that the learned Trial Judge did not exercise his jurisdiction properly and without any application of mind or without considering the provision of statute or without considering the evidence on record, the learned Trial Judge passed the Impugned order. The learned Counsel submits that the learned Trial Judge should have considered that in view of the provisions of Section 106 of the Indian Evidence Act the burden of proof of income of the husband was lying with the husband since the fact of his income and the quantum of his income cannot be within the knowledge in specific of the wife-petitioner. The learned Counsel for the petitioner also submits that the basis of the impugned order is surmise and not evidence on record. The learned Counsel for the petitioner submits that the wife as disclosed certain income of the husband and thereafter the husband-respondent should have disclosed in evidence regarding his actual income. The learned Counsel for the petitioner also submitted that the learned Trial Judge went on wrong in deciding that since the petitioner is an Arts Graduate she cannot sit idle and arrived at a wrong presumption that she must have some earning. The learned Counsel also submits that the learned Trial Judge failed to consider that the husband-respondent is also a Diploma Engineer and if the Arts Graduate can have some earning the Diploma Engineer cannot be also a vagabond. The learned Counsel placed reliance on a judgment , Chitra Sengupta v. Dhrubajyoti Sengupta. In this judgment the Hon’ble Division Bench of this High Court observed “but that apart, monthly income of a husband may not very often be within the knowledge of the wife, particularly in a case like this where the relation is considerably strained and the spouses are living a part for a considerably long period”. The Hon’ble Division Bench also observed that onus under Section 106 of the Evidence Act would be on the husband to disclose the same and if he fails to do so without any good reasons, the Court would be entitled to presume against him and to accept the allegations of the wife as to the amount of income derived from such reasonable sources as would be available to her. The Hon’ble Division Bench in this case quoting from a decision reported in AIR 1917 Privy Council (sic) observed “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 this 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.”
4. The Hon’ble Division Bench also observed that these observations were endorsed by the Privy Council again in Rameswar Sing v. Bajit Lal Pathak AIR 1929 Privy Council 95 at page 99 and having been quoted with the approval by the Supreme Court in Hiralal v. Badkulal, Their Lordships observed “we are of opinion that as a matter of onus under Section 106 of the Evidence Act and also otherwise under the principle enunciated in the aforesaid decisions of the Privy Council and the Supreme Court, it was for the husband to disclose his income and he not having done that and not having also specifically denied the amount alleged by the wife to be his income, we would have to go by such allegation for the purpose of this application. The learned Counsel for the petitioner then relied’ in another decision of Hon’ble Division Bench reported in 1986 (90) CWN 816, Somen Ghosh v. Bani Ghosh (nee Sen). The learned Counsel relied on Paragraphs 4 and 5 of this judgment which is quoted hereinbelow :–
“4. The Court under Section 24 of the Hindu Marriage Act, 1955, has been given a wide discretion in the matter of granting alimony pendente lite but the discretion is judicial and not arbitrary or capricious. It is to be guided on sound principles of matrimonial laws and to be exercised within the ambit of the provisions of the section and having regard to the object of the Act’ (vide Mulla’s Hindu Law, 15th Ed. Page 873). In fixing the sum of maintenance and legal expenses to be paid to the petitioner, who makes an application under Section 24 of the Act, the Court shall have regard to the petitioner’s own income and income of the respondent. But we are unable to accept the contention of Mr. Mukherjee on behalf of the petitioner, that as there was no evidence that his client was receiving any income or salary, no order under Section 24 of the Hindu Marriage Act ought to have been made in favour of the wife, the opposite party to the Revisional Application. Mr. Mukherjee in this connection had drawn our attention to the discussion under the heading “Has No Independent Income Sufficient” in Mulla’s Hindu Law, 15th Ed. Pages 872-73. The said passage does not really support the contentions of Mr. Mukherjee. Because it has been observed therein : “It is also implicit in the section that the order would not be made if the respondent to the application is shown to have no property nor earning capacity or is shown to have very small income. But the fact that the respondent is not receiving any income from property for the time being would not be sufficient answers to the claim…………………”. Reference may also be made to the discussion on the point at Page 885 of the aforesaid book on the subject of assessment of quantum of maintenance payable under Section 25 of the Hindu Marriage Act. The learned author has inter alia observed : “It would also be open to take into account the earning capacity of the husband as well as the wife. The Court has ample discretion and in a deserving case may ascertained not. only what money’s the husband had but what money he could have had if he liked and take into consideration his capacity and ability to provide maintenance. The Court will look at the realities and not permit itself to be misled by appear ances”. Rayden on Divorce, Vol. I, 13th Edn. in Notes at Pages 872-873 with reference to the provisions of Matrimonial Clauses Act, 1973 makes similar observations.
5.5 In the Instant case, the husband was undisputedly at one time employed in a company named Kohinoor Rubber Works. In her evidence given in the Court below the wife had no doubt stated that she did not know where her husband worked now. In her cross-examination, she had denied the suggestion that her husband was out of employment. Although in his evidence the husband, Samar Ghosh, had claimed that he was not employed at present and had to tender resignation as his wife and others held out threats. But he had admitted that he had no paper to show that he had left his work. He also admitted that he had no wit ness for living his job or to show what was his salary. He had also admitted that he got a job at Raniganj but he had left it due to threats by the other party. Again, he had no paper or witness to show that he had lost this job also. In all likelihood, there would be papers in case he had resigned his job. But he did not adduce either oral or documentary evidence to corroborate his claim that he was out of employment. The husband was an ablebodied youngman of about 34 years of age, Although there was no evidence before the Court below of the actual income, if any earned by him, the Court below legitimately could take into consideration his ability to earn a reasonable amount of income.”
5. The learned counsel then relied on the decision (Sm. Urmila Devi v. Hari Parkash Bansal). In this judgment it has been observed ; “Thus, if a person is an ablebodied person can be all working, then he suppose to maintain his wife and to pay the maintenance as required under Section 24. It is for the purpose of fixing the amount under Section 24 that the applicant shown income and that of the respondent is to be taken into consideration. In the absence of any income as such of either party is the husband being an ablebodied person and can be all working can be considered as capable of maintaining his wife and thus, liable to pay the interim maintenance under Section 24 of the Act.” The learned Counsel then relied on the decision reported in AIR 1994 NOC 61 (Rajasthan) (Anil Kr. v. Smt. Lakshmi Devi). In this judgment it has been observed that the husband has disclosed his income before the Court below which appears to be unbelievable. It is duty of the ablebodied person to earn enough to discharge his legal obligation to maintain his wife and to provide for the subsistence so that the wife is not driven to destitution even when the husband is not earning sufficient money. The provisions have been made to protect the neglected wife against starvation and to tide over the immediate difficulties and to protect her interest during the proceedings which have been foisted upon her by the husband. The proceeding under Section 24 of the Hindu Marriage Act are to be decided in a summary manner and the Court is not expected to try the issue at length then the learned counsel relied on the decision, (Smt. Kanchan v. Kamalendu). In this judgment the Hon’ble single Bench of Bombay High Court observed : “taking into consideration the scheme of Section 24 of the Act either of the spouse in the proceedings on satisfying that they have no independent source of income to support them and claim maintenance pendente lite. Husband is, therefore, equally entitled to claim maintenance. Howsoever, the non-applicant husband will have to satisfy the Court either due to physical or mental disability, he is handicapped to earn and support his livelihood.” Then again the learned counsel for the petitioner relied on the decision, (Myra Joseph Braz Dias v. Joseph Braz Dias). In this decision also the Hon’ble single Judge of Bombay High Court followed the same principle. The learned counsel then relied on the decision (Vinod Kr. Kejriwal v. Usha Vinod Kejriwal). In this judgment one learned single Judge of Bombay High Court observed that the expression proceedings under Act as provided in Section 24 of Hindu Marriage Act cannot be given narrow and restricted meaning. The learned counsel for the appellant thereafter relied on a decision, (Maganbhai Chhotubhai Patel v. Maniben). In this judgment the Hon’ble single Judge of Gujarat High Court when interpreting the provisions of Section 106 of the Evidence Act observed in the context of that case : “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 property 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 Order 8, Rule 5 of the Code. Under the circumstances, the guess work made by the plaintiff-wife and specific averment made by her in para 5 of the plaint that the income of the defendant-husband is 1710 dollars per month and income from the properties in India is Rs. 20,000/- per year is acceptable as evidence. Some 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 they have produced material documents in their possession, requires to be accepted as proof in this case. I, therefore, held that the income of the defendant-husband was 1700 dollars in the year 1969 and in the income from the property in possession and management of the father of the defendant in India was Rs. 20,000/- per year”. The learned counsel then lastly relied on a decision, reported in AIR 2001 Jharkhand 61 : (2001 AIR — Jhar HCR 348) (Smt. Chandrani Sinha v. Koushik Sinha). In this judgment also the Hon’ble High Court at Jharkhand allowed maintenance for the wife. The learned counsel for the petitioner relying on the decision submits that the impugned order passed by the learned Trial Judge should be set aside.
6. The learned counsel for the respondent submits that Section 24 provides that any of the spouse can claim for maintenance. The learned counsel also submits that the wife could not prove the income of the husband in definite conclusion and as such the learned trial Judge rightly rejected the petition for maintenance submitted by the wife. The learned counsel also submits that the husband-respondent has no income inasmuch as the service has been terminated and accordingly as per the provisions of Section 24 he can also claim maintenance from the wife petitioner since the wife-petitioner through private coaching earns Rs. 5000/- and as such the petitioner has claimed maintenance of Rs. 2000/- per month. The learned counsel for the respondent submits that unless the petitioner proves the income of her husband-respondent, on the air maintenance cannot be granted because the quantum is to be calculated.
7. Heard the learned counsel for the parties. Considered their rival contentions and also considered the impugned order passed by the learned Trial Judge at the outset let me have a look into the provision of Section 24 of the Hindu Marriage Act, 1955 are runs as follows :–
24. Where in any proceeding under this Act it appears to the Court that either the wife or the husband, as the case may be has no independent income sufficient for her or his support and the necessary expenses or the proceeding, it may, on the application of the wife or husband, order the respondent to pay to the petitioner the expenses of the proceeding, and monthly, during the proceeding such sum as, having regard to the petitioner’s own income and the income of the respondent it may seem to the Court to be reasonable.
8. This provision of this statute is very amazing. The other Acts like Indian Divorce Act, the Hindu Adoptions and Maintenance Act does not say about maintenance pendente lite of the wife or the husband.
9. Mulla in this context has observed that the right of a wife for maintenance is an incident of the status or estate of matrimonial. In general, therefore, the husband is bound to defray his wife’s costs of any proceeding under this Act and to provide for all alimony, which expression in its strict sense means allowance due to wife from husband on separation from certain causes, has its basis in social conditions in English under which married woman was economically dependent and almost in a position of tutelage to the husband and was intended to secure justice to her when prosecuting or defending proceeding under matrimonial law, it is also recognized that when the wife has separate means sufficient for her defence in subsistence she should not be entitled to alimony nor costs during the proceeding and if the husband has neither property nor earning capacity the Court would not award any interim alimony. It is on these principles that the law relating to matrimonial causes provides for rules for payment of maintenance pendente lite and expenses of proceedings by the husband to the wife this section adopts those principles and those one radical step further when it lays down that any such order can be made not only in favour of the wife but also in favour of the husband.
10. Let us now take the chronology of events in the instant case. In the year 1998 marriage was solemnised according to Hindu Rites. In the year 2000 the petitioner-wife left the matrimonial house and took shelter at her parental home. In the same year the husband-respondent filed a suit for divorce. The wife-petitioner filed an application under Section 125 of the Code of Criminal Procedure claiming maintenance and subsequently in the suit filed an application under Section 24 of the Hindu Marriage Act praying for maintenance pendente lite with litigation cost. After the wife-petitioner filed the application for maintenance the husband-respondent also filed an application claiming maintenance from the wife. Now the learned trial Judge heard both the applications analogously and rejected both the applications. The learned trial Judge came to the conclusion that the husband is no longer in service and he has no income at present at all. The learned trial Judge also observed that it is the settled principle of law that an educated lady cannot be encouraged to sit idle expecting any allowance from her husband. In the instant case the petitioner-wife is a graduate whereas the O.P.-husband has been living a life of vagabond and is vagabond and is totally dependent upon the brothers. I find no reasons for saddling the O.P.-husband with any amount of alimony pendente lite as passing of such order will only re-elected the capricious attitude of the Court upon the husband who has no income at all at present. Likewise appointment at all inclined to saddle the petitioner-wife with any amount of maintenance for maintaining her by thoroughly unemployed husband as claimed in the petition filed by the O.P.-husband as he is able-bodied . The learned Trial Judge, it is not known, wherefrom got this settled principle of law that an educated lady cannot be encouraged to sit idle. It is not known in which law it has been provided. The learned trial Judge in fact advised the petitioner-wife not to sit idle but to do some work then what for the provision of maintenance pendente lite. It is also surprising that the learned trial Judge without any conclusive evidence came to the finding that the husband-O.P. is unemployed. It cannot be said to be believable that in a private firm named Garrison Engineering Company which is a reputed organisation has appointed the O.P.-husband as store-in-charge without appointment letter and has also terminated his job without any letter of termination, far less without any disciplinary proceeding or without any enquiry. It is also surprising that the learned trial Judge accepted that the service of the O.P.-husband in these hard days was terminated and he did not proceed with any legal proceeding challenging the order of dismissal from service. It is also surprising that for a person remaining in custody for more than 48 hours he is to face suspension if he is a Government employee but here the husband-respondent has said that as he was taken to custody, his service was terminated which also cannot be said to be believable. If the learned trial Judge relies on the Bombay High Court decision and observes that the husband-respondent is an able-bodied person and naturally he is not entitled to maintenance, then the learned trial Judge ought to have accepted the ratio of the Judgment in full and should have considered that in that Bombay High Court judgment the Hon’ble Court on that score directed the husband to grant maintenance to the wife. Here the learned trial Judge proceeded to some extent in consideration of the judgment but did not consider the judgment of Bombay High Court in totality.
11. In my opinion, the husband-respondent foisted the divorce suit on the wife and the husband-respondent can very well file a divorce suit to incur expenditure over there for the purpose of divorce and when the question of maintenance arises, the husband says that he is unemployed/vagabond. It is also peculiar that the husband filed a petition under Section 24 of the Hindu Marriage Act, 1955 claiming maintenance but when his petition was rejected by virtue of this impugned order then he did not challenge the order and did not move any revisional application and only played the role of respondent before this High Court. Since Section 24 of the Hindu Marriage Act unlike other Acts provides for maintenance of both the husband and the wife, the Court should carefully proceed in the matter for granting maintenance. The trial Court should have considered in this case that the petitioner-husband filed divorce suit incurring cost. The petitioner-husband is a Diploma Engineer and when his service was terminated, he did not challenge the said termination order. The learned Trial Judge was wrong in the calculation that if an Arts Graduate lady can do something and should not sit idle then the learned Trial Judge also should have considered that the petitioner-husband is a Diploma Engineer and he also should not sit idle being able-bodied. In this patriarchal society like ours that weaker sex is to face various troubles to find out a suitable job for maintaining herself. In such cases when considering the claim for maintenance, the Court should assess the conduct of the parties. Now here what is the conduct. In 1998 March, the wife had to find out shelter in her parental home. In the same year the husband filed a suit for divorce, there is no evidence on record that the husband tried for conciliation and incurring expenditure he can file a suit for divorce. He can regularly pay the Lawyers’ fees and other expenditures and when the wife files an application for maintenance to encounter that petition takes advantage of the language of Section 24 and files a petition for maintenance. The income of the husband must be within his special knowledge and he did not make any attempt to prove either his actual income or his dismissal from service though Section 106 of the Evidence Act is very clear in this regard. The husband was to disclose his Income as it was within his special knowledge as provided in Section 106 of the Evidence Act, The husband engaged Lawyer before this High Court to defend his case but he did not challenge the order of rejection though his claim for maintenance has been rejected by the same order passed by the learned trial Judge. From this incident the conduct of the husband comes to light. Had the husband-petitioner been prejudicially affected he must have challenged the order of the learned Trial Judge, but, he did not.
12. On consideration of the facts and circumstances and consideration of the evidence on record, I therefore, set aside the order impugned passed by the learned Trial Judge in Misc. Case No. 5 of 2001 in MAT Suit No. 54 of 2000. The learned Trial Judge is directed to hear the Section 24 Application afresh filed by both the wife and the husband in the light of discussions and observation made above. Till the learned trial Judge arrives at a decision I direct that the respondent/husband to pay @ Rs. 1800/-(Rupees One thousand eight hundred only) per month as maintenance to the petitioner/ wife and will go on paying the same month by month by sending the same to the petitioner/wife through Money Order. The first such payment is to be sent by the respondent/husband within a fortnight from date and he will send the amount thereafter within seventh of each English Calendar. The respondent-husband is also directed to pay Rs. 5000/- (Rupees Five thousand) only in two equal instalments within three months from date to the petitioner/wife towards litigation costs and the respondent/husband will send this litigation costs directly to the petitioner/wife through Money Order. The Revislonal Application is thus disposed of.
13. There will be no further order as to costs.
14. Urgent xerox certified copies of this Judgment and order, if applied for, will be given to the parties as expeditiously as possible.
15. Learned Advocate for the petitioner prays for a xerox plain copy of the operative portion of this order. Let a xerox plain copy of the operative portion of this order duly countersigned by the Asstt. Registrar (Court) be handed over to the learned Advocate for the petitioner.