KULBHUSHAN KUMAR versus RAJ KUMARI & ANR.

KUI,BHUSHAN KUMAR

RAJ KUMAR! & ANR.

Oc,tnber ?.0, 1970

[G. K. MITTER AND A. N. RAY, JJ.J

!findu Adoptions and Maintenance Act (78 of 1956), s. 23(2)-Amounts received by wife monthly from faiher-lf could be taken into account in determining maintenance-Husband's 'free income', how deter-mined-Amount of maintenance and date from which payable.

The appellant and the respondent were married in May 1945. Some-time after the marriage the husband did not want the wife to live with him; and there was complete estrangement between them. daughter was born to them in-August 1946. In 1951, the respondent sent registered letter claiming maintenance, for herself and the daughter, and in 1954, she filed the suit for maintenance.

The High Court in appeal, fixed the maintenance payable to the res-pondent, under s. 23 (2) of the· Hindu Adoptions and Maintenance Act, 1956; at Rs. 250 subject to limit. of 25% per mensem of the income as determined by the income-tax authorities, and Rs. 150 as the maintenance of the daughter. The High Court, in doing so, took into account the facts that the appellant was Reader in Medicine receiving sala\'y of about Rs. 700 and more than Rs. 250 per mensem by way of ,private practice. The date of the institution of the suit was fixed by the High Couit ·as terminus quo for the payment of the maintenance to the res-pondent.

In appeal to this Court on the question of maintenance payable .to the wife.

HELD : (!) Even if the wife received some amounts from her father tegularly it was only boµnty and not her income. Therofore it could not be taken into account under s. 23(2) (d) of the Act in determining the amount of maintenance, [678 A-BJ

(2) There- was no· evidence of her inheriting any property of her father on his death. ~678 CJ

(3) The amount payable by way of maintenance depends on the facts of each ·case and the Judicial Committee, in Mt. Ekradesltn·ari ·v. Homeshwar, did not lay down any principle relating to the proportion of the husband's 'free income' which would· be payable as maintenance to the wife. [679 F-G]

In the circumstances of this case, no exception could be taken to the amount fixed by the High Court as well M the date from which the main-tenance would be claimable. In determining the limit at 25% of the -free income' of the appellant, amounts payable towards income tax, com-pulsory provident fund, and expenses for maintaining the car for profes-sional purposes as allowed by the income taic authorities, should be allowed as deductions from the husband'' total income. [ti80 A-C, F-GJ

Mt. Ekradeshwari v. Homeshwar, A.I.R. 1929 P.C. 128 applied.

C1vn. APPELLATE JURISDICTION: and 2589 of 1966.

Civil Appeals Nos. 2564

Appeals from the judgments and decrees dated March 10. 1965 of the Allahabad High Court, Lucknow Bench in First Civil Appeals Nos. 5 and (i of 1958, respectively.

G. N. Dikshlt and B. Datta, for the appellaint (in both the appeals).

C. B. Agarwa/a, Uma Mehta, S. K. Bagga and S. Bagga, for the re;pondent (in both the appeals).

The Judgment of the Court was delivered by

Mitter, J. These two appeals are from two judgments and decrees of the High Court of Allahabad granting maintenance to the wife and daughter of the common appellant in both the appeals.

Counsel for the appeilant did not contest the right of th" res-D pondents to claim maintenance. His argument was directed only against the quantum fixed in both the cases on the ground that the principles laid down in s. 23 ( 2) of the Hindu Adoptions and Maintenance Act, 1956 had not been followed by the High Court. The Act had come into force before the date of the trial court's judgment on the 1st June 1957 and it is the common case of the parties that the Act governs the rights of the parties herein. The relevant portion of s. 23 runs as follows :-

" (l ) It shall be in the discretion of the court to determine whether any, and if so, what, maintenance shali be awarded under the provisions of this Act, and in doing so the court shall have due regard to the con-siderations set out in sub-section (2) or sub-section

( 3), as the case may be, as far as they are applicable.

( 2} In determining the amount of maintenance, if any, to be awarded to wife, children or aged or infirm parents under this Act, regard shall be had to-

(a) thP. position and status of the parties;

(b) the reasonable wants of the claimant;

( c) if the claimant is liv,ing separately; whether the claimani-is justified iii 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.

As it \ms contended on behalf of the appelant that practically all the provisions of the sub-clauses of sub-s. (2) were disregarded by the High Court, it is necessary to state few facts about the married life of the appellant, his income out of which mainten-ance. is to be directed, the pecuniary conditions of himself and of his "ife and whether the wife has any other income or property which had to be taken into consideration.

The marriage of the appellant with the respondent in the first appeal took place in May 1945 at Gujranwala now in Pakistan. The father-in-law of the appellant who was ex;amined as witness in the maintenance suit filed by the respondent gave evidence to the effect that he had worked vs an ageilt of the Standard Vacuum Oil Company with agencies at Gujranwala and neighbouring dis-tricts and that his annual income at the date of the marriage of the respondent was about Rs. 40,000/- out of which he had to pay Rs. 13,000/- by way of income-tax. Further, after the parti-tion of India he came to nehra Dun and took up his abode at Premnagar Refugee Camp but could not engage himself actively in business on account of illness and old age but had become partner with 9thers in business of ice and rice mil! in which he h. l Rs. 0-2-6 share. ie had never seen the accounts of the busi-ness and was content to accept whatever was given to him by his partners which varied between Rs. 50/- a11d Rs. 200/- per ;nonth. He had to leave all his property in Pakistan and had not received any compensation in lieu thereof at the date when he was examin-ed in court in March 1956.

There is some dispute about the period during which the parties in the first appeal had lived together as man and wife. According to the husband the period had come to an end in March 1946 while according to the w!fe it had lasted up to Decem-ber 1946. Admittedly, daughter, the respondent in the second appeal, was born out of the wedlock on August 4, 1946. The Wife sent lwayer's notice claiming maintenance on July 28. 1951 and filed suit for the purpose adding claim to ornaments which according to her were left with the husband. The lawyer's notice states that the news of the birth of the daughter haC: been conveyed to the parents by his father-in-law by registered post but the latter had refused to accept it, that the wife had been sent by the appellant to Gujranwala for the confinement in 1946 and all her stridhana jewellery, silk clothes etc. had been left behind with the appell_ant at Lucknow. On the basis that the appellant was receiving Rs. 560/- per month as salary from Government

and was earning Rs. 800/- per mon\h by way of private practice besides income from agricultural lands, the wife's claim to main-tenance was laid at the rate of half the earnings of the husband inclusive of the maintenance of. the minor girl who had to be; educated and brought up according to the husband's status in life.

The suit for maintenance was .actually filed on April 27, 1954 by the wife claiming besides the value of the ornaments decree for arrears of maintenance amounting to Rs. 21,600/-and future maintenance at the rate of Rs. 600 /- per month. The: claim made in the daughter's suit filed on April 5, 1955 was at the rate of Rs. 150/- per month.

The trial court decreed the two suits awarding maintenance·

to the wife at Rs. 100/- per month a~ from the date of the decree i.e. 1st June, 1957 and at the.rate of Rs. 25/· per month for the· daughter negaliving the claim to the. value of the ornaments.

The High Court allowed the claim of the wife to monthly maintenance of Rs. 250/- from the date of the institution of the suit subject ta limit i.e. that the husband would not be liable' at any time to pay more than 25 % of the total income as accept-ed by the income-taJC authorities by way of maintenance. .Wtth regard to the daughter, the High Court fixed the amount·of main-tenance at Rs. ISO/- per month subject to similar limit as in the case of the wife, the quantum being directed not.;to exceed 15% of the average monthly income of the father;

The relevant facts as they emerge from the oral and documen·

tary evidence adduced by the parties so far as the same have bearing on the factors mentioned in sub,cls. (a) to !d) of s. 23 (2) besides the above may be stated briefly. We have already noted that the father of the wife was fairly well-to-do ;penon at the time when the marria~e had taken place. There was how· ever serious reversal of hrs fortunes after the partition ol the· country. According to him no talk of ~y dowry had taken place between the parties before the mafriage of his . daughter. The appellant who had qualified himself in medicine had gone· to G1.1jranwala from Lucknow for the marriage. The appellant's mother had seen the respondent several times before the nup· tials. · His daughter had accompanied the appellant to Lahore immediately after the marriage but had come back from there· within 10 to 15 days.

The respondent's evidence was that except for very brief periods from October 1945 td Merch 1946 she had scarcely lived with her husband who was working in medical college· at Lucknow starting on salary of Rs. 280/- per month. Her

.evidence was that she was not well received in her husband's family because her mother-in-law was disappointed with the .dowry brought by her.

From the oral and documentary evidence it appears that the husband was never anxious to have the company of the wife and her attempts to make the married life normal one by going to Lucknow three times did not have the desired effect. The husband used to write to her but stopped doing so some two months after the birth of her daughter in August, 1946. She .had written number of letters to her husband from 1946 to 1\149 without receiving any reply. On the last occasion when she had gone to the husband at Lucknow the latter was absent from home for four days and she could not find out whether he was attending his college during that time. The husband had met her at Lucknow when she went there w;th her daughter but made himself scarce after the first day. The husband's evidence · shows clearly that he was disillusioned about the wife immediate-ly after the marriage inasmuch as he found the wife to be girl of little education whereas he had been given to understand that she had taken ':Ilaster's degree in arts. He had however tried to reconcile himself with his lot. His statement even in exami-·nation-in-chief does not show that he was at any time anxious to receive his wife or to keep her with him. He had kept ?Ip ·correspondence with her till August 1946 when he received a. registered letter intimating him of the birth of his daughter. For five years thereafter l ,e. from the time of the partition of the country, he had no news of his wife and child. In 1951 he re-ceived the lawyer's notice. At the time of his marriage he was resident medical officer drawing fixell salary of Rs. 280/-p.m. with free quarters. He became lecturer in medicine in December 194:i on salary of Rs. 280/- with prospects of in-crement up to Rs. 400/-. In 1953 he became Reader in medi-cine on scale of Rs. 500-30-800. His salary at the time of his giving evidence in court was Rs. 620/- plus 10% by way of dearness allowance. jle also had some private practice which came to no inore than Rs. 25,000 to Rs. 30,000/- during the ·entire period from 1945 to 1957. His bank balance had never crossed the limit of Rs. 2,000/-. He had no other assets except piece of land in Ambala given by way of compensation for lands ow:ied in Pakistan. He had purchased car for Rs. "10,000/-and his monthly expenses for the. upkeep of it including the chaffeur's pay was Rs. 70/- p.m. He had no idea of the financial status of his father-in-law.

few letters which passed between the husband and the wife and exhibited in this case show that from May 1945 to •October 1945 the husband was writing quite affectionate letters

to the wife. There were only two short letters written on the 3rd and 4th January 1946 written in an altogether different vein. The copy of the only letter of the wife which was exhibited in this case bearing date 25th August 1948 starts off with congra-tulations to the husband for having received scholarship for going to England as reported in the Tribune. She complained that the husband had forgotten her although she still loved him as usual. She mentioned that the daughter was alHays asking after her father. She requested the husband to look them up before going abroad. She also sent her respects to her mother-in-law. It will be noted that the documentary evidence noted above was of period prior to the litigation. The wife complained in the plaint about the strained relations between herself and her mother-in-law on the ground of insufficiency of dowry, that though she had gone to the husband and tried to persuade him to do his duty by her it was of no avail, and that she was living upon the charity of her father. The husband pleaded in defence that the wife had gone to him in October 1945 of her own accord without any traditional invitation and had stayed with him for solne time off and on up to March, 1946 adding :

"During this period the defendant (himself) was constantly under threat to his life being in danger and used to take all sorts of precautions and it became fur-E ther clear on account of the .incompatiability of tem-perament that the defendant would not be able to pull on with the plaintiff."

Taking all the circumstances into consideration and special-ly the status of the father of the respondent that he was giving her sum of Rs. 250/- p.m. by way of pocket expenses, the Civil Judge Lucknow fixed the wife's maintenance at Rs. 100/- per month and that of the daughter at Rs. 25/- p.m. The High Court held that it was the husband who was guilty of desertion and the wife was entitled to an the amenities and comforts which would have been hers had they lived together. The High Court also found that the total income in the year 1953-54 was Rs. 10,099 /- and that in 1957 he was receiving salary of Rs. 682/- per month and that his privat~ practice which was of the order of Rs. 250/- p.m. in 1953-54 could be reasonably expected to have gone up much higher in 1957. Accordingly it fixed up monthly allowance to the respondent at Rs. 250/-for maintenance subject to limit of 25 % p.m. of the total income as accepted by the Income-tax authorities.

Before us counsel for the appellant contended that the courts below had ignored the fact that on the death of the wife's

father in 1960 she had inherited half the properties left by him and that even during his lifetime she was in receipt' of Rs. 250/-p.m. which should have been taken into consideration under cl. (d) of sub-s.(2) of s. 23. We cannot accept this contentior.. sum of Rs. 250/- p.m. even if given to the respondent re· _gularly was not her income but was only bounty from her father which she might or might not continue to get. It is hardly believable that the father who according to his ·own evidence ·was getting no more than Rs. 200/- p.m. out of the partnership business could afford to give Rs. 250/-p.m. to his daughter. It would appear this statement was false and only made with view to strengthening claim for the recovery of the amount from the. husband. If it were true that the wife had inherited any property from her father there certainly was .ample oppor-tunity for the husband to have affirmed an affidavit to that effect during th~ last ten years. Such affidavit could have been used even before the High Court of Allahabad which heard the appeal in 1965. With regard to sub-cl. ( c) the evidence makes it quite clear ·that it was· the husband who did not want the wife to live with . ~him. The husband never seemed to have cared for .the daughter born to him. The fact that registered letter was sent to him after the birth of the daughter shows that there was complete estrangement between the parties even before that day. N:e1ther 'in the letters written to her nor in the evidence adduced by the 'husband fa illlY reason disclosed as to why he took dislike to ·the wife unless it be fact that he was disappointed in his wife and cherished feeling that she was not possessed of cultnre and education of the expected standard. There does not appear to be any substance in the wife's allegation that indifference of her husband stemmed from disappointment to the dowry brought by her. Counsel for the appellant also relied on sub-cl. ( e) to sub-s. (2) on the ground that he had to maintain his aged mother. Unfortunately however the husband had laid no ground to such son of his mother and 'it appears from the evidence given by claim in his testimony before the court. He was not the only him that his family owned some lands which were being· looked after by the mother. In the absence of any express statement by the husband himself in his examination no reliance can be placed on the claim made on his behalf.

Reference was made on behalf of the appellant to the deci· sion of the Judicial Committee in Mt. Ekradeshwari v. Homesh-ivar(') where the Board had to deal with the case of widow

of deceasod in the junior line of the well-known Darbhanga family in Bihar. The trial court had found in that case that the gross income of the estate was Rs. 1,50,000 per annum, but the net income was only Rs. 33,000 per annum after pay-ment of the interest on the heavy encumbrances on the estate in respect of which litigation was pending between the estate and the Maharaja of Darbhanga. In rejecting the claim of the widow to an annual maintenance of Rs. 18,000/- and uphold-ing the concurrent findings of the courts in India that the main-tenance allowance should be fixed at Rs. 4,200/- per annum the Board approved of the observations of the Subordinate Judge to the effect that the said sUlli. would enable the lady "to live as far as may be consistently with the position of widow in some-c thing like the same degree of comfort and with the same reason-able luxury of Jife as she had in her husband's lifetime" Accord-ing t-0 the Board maintenance depended."'upon gathering together of all the facts, of the situation, the amount of free estate, the past life of the mamed parties and the families, survey of the condi-tions and necessities and rights of the members, on rea-sonable view of change of circumstances possibly re-quired in the future, regard being, of course, had to the scale and mode of living, and to the age, habits, wants and class of life of the parties."

With respect we are in entire agreement wit)i the above dictum and in our view sub-s.(2) of s. 23 makes no departure from the principles .enunciated by the Board, exeept perhaps to limited extent envisaged in sub. els. (d) and ( e) of the said sub-section.

It was argued before us that inasmuch as the Board allowed as quantum of maintenance 1/Sth of the ne.t 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 widow of Brahmin family although highly placed in liie. Here we have the case of wife who was neglected by her husband not in affluent circumstances but certainly with means to support wife on reasonable scale of comfort.

It was further argued before us that the High Court went wrong in allowing maintenance at 25 % of the income of the appellant ,as found by the Income-tax Department in assessment proceedings under the Income-tax Act. It was contended that not only should deduction be made of income-tax but also ofhouse rent, elec-tricity charges, the expenses for maintaining par and the con-

tribution out of salary to the provident fund of the appellant. In our view some of these deductions are not allowable for the pur-pose of assessment of "ftee 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 p.:rmissible for payment of house rent or electricity charges, The expenses for maintaining the car fer the purpose of appellant's practice as 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 car.

The question as to the date from which maintenance would be claimable was also mooted before the Judicial Committee in the above case. The High Court had turned down the widow's claim to arrears of mainten\lnce. Examining the several decisions cited before it the Board took the view that the widow was en-titled to maintenance not from the date of the decree as found by the courts below nor from the date of the suit in April 1922 but from 1st of January 19 22 in view of the fact that it was towards the end of the year 1921 when the widow had made up her mind to stay on at her father's place. In this case, as already noted, the claim to maintenance was first laid by lawyer's notice of 1951 but the suit was filed in 1954. The trial court decreed maintenance from the date of the decree in 1957 but the High Court thought fit to allow maintenance from the date of the insti-tution of the suit. No exception can be taken to the fixing of the date of institution of the suit as the termirrus quo for the main-tenance claimed by the respondent. sum of Rs. 250/- per month for the maintenance of the wife of 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. We have no reason to take any different view. Subject to our observation as to the determination of the income of the appel-lant, the appeal against the wife is dismissed with costs.As regards the appeal in the case of the daughter, the High Court fixed the amount of monthly maintenance at Rs. 150 /- till such time as she marries but so as not to exceed 15% on the average monthly income of the father. No ground was shown as ~o why we should make vai'iation in the amount fixed in her case. We uphold the finding of the High Court in this respect. There will be one set of hearing fee.

Appeal dismissed Y.•ith modifications.