Punjab-Haryana High Court
Sangeeta vs Ved Parkash on 27 May, 1999
Equivalent citations: (1999)122PLR718
Author: Swatanter Kumar
Bench: Swatanter Kumar
JUDGMENT Swatanter Kumar, J.
1. Mrs. Sangeeta had filed a petition under Section 13 of the Hindu Marriage Act praying for a decree of divorce and dissolution of her marriage with Mr. Ved Parkash to whom she was married according to the Hindu rites at Sunam in the year 1986. The divorce was sought on the ground of cruelty and ill-treatment given to the wife and children and very serious allegations against the husband, mother and father were made in the petition.
2. Vide judgment dated 5.4.1997 the learned District Judge, Kurukshetra, disbelieved the case of the wife and dismissed the petition leaving the parties to bear their own costs. Aggrieved from the said judgment the wife has filed the present first appeal.
3. Alongwith this appeal an application was filed by the wife under Section 24 of the Hindu Marriage Act seeking maintenance at the rate of Rs. 4,000/- per month. She claimed that amount for herself and 3 minor children. She also claimed litigation expenses of Rs. 10,000/-. It was averred in the application that the husband was a registered medical practitioner and was earning more than Rs. 10,000/- per month.
4. This application was contested by the husband and he filed a reply where he stated that the mother of the wife in her cross examination before the trial Court, herself had admitted that the wife had been earning Rs. 400/- per month from stitching etc. According to him his wife is earning Rs. 6,000/- per month. In the reply he admitted the fact that he is a registered medical practitioner and was earlier earning some amount but now his income has reduced to Rs. 30 to 40 per day. It is also pointed out by the husband that the Judicial Magistrate 1st Class, Kurukshetra in proceedings under Section 125 of the Cr.P.C. has fixed Rs. 900/- per month as maintenance for the 3 children who were living with the wife.
5. The husband did not stop at that. Infact, he filed a separate application being CM No. 15-M of 1998 claiming maintenance for himself from the wife under Section 24 of the Hindu Marriage Act. He demanded Rs. 2,000/- per month as maintenance pendente lite and Rs. 5r000/- as litigation expenses. This application was contested by the wife and reply was filed where she reiterated the averments made in the application filed by the wife. It will be appropriate to dispose of both these applications by a common order.
6. The relationship of husband and wife between the parties is not disputed. The fact that there are 3 children from the wedlock is also admitted. The husband admits that he is a registered medical practitioner and was earning higher amount previously and now earns Rs. 30 to 40 per day. The wife has disputed that she is earning any amount, though according to her mother she was earning Rs. 400/- per month.
7, The cumulative effect of the above discussion is that the wife can be stated to be earning Rs. 400/- per month while the husband on his own showing, is earning more than Rs. 1,200/- per month. There are 3 minor children who require attention and maintenance from their parents. There is also no dispute to the fact that all the 3 minor children are staying with the wife. The husband has himself asserted that he is a registered medical practitioner and his income has gone down in the recent past. Thus, it was his obligation to produce before the Court requisite proof of his previous income and for the current period also. The husband has intentionally withheld such documents which would obviously be in his power and possession. The proceedings under Section 24 of the Hindu Marriage Act are summary proceedings and the Court normally relies upon the affidavits filed by the respective parties in support of their claims. It is true that wife has also not brought any positive evidence to show as to what was the income of the husband for ail this period but her statement has to be given some weightage because she had been staying with the husband and knowing his income from the profession. The profession is admitted and the fact that he is continuing the practice is also admitted. In these circumstances the onus was upon the husband to show that there was such serious fall in his income as stated that there were some unavoidable factors which prevented him from earning higher amount. During the course of hearing it was also stated that the wife who was occupying some portion of husband's house has now left the portion because of day to day bickering. A person in Hindu Society who is governed by the Hindu Marriage Act is statutorily obliged to maintain his children and wife. The husband is obliged to provide somewhat similar status and benefits which the children and wife would have enjoyed if they continued to live with him, if not identical. The obligation is a pious one and finds its routes in religion, custom and law. By taking an evasive stand none of the spouse to a marriage can obviate himself/herself from such responsibility. It is a settled principle of law that in proceedings under Section 24 of the Hindu Marriage Act the Court is not obliged to press for burden of proof. This Court in the case of Ravinder Kaur v. Makhan Singh, (1999-1)121 P.L.R. 389 following the principles laid down in the previous cases held that there is an implied obligation in law upon a party to produce the best evidence in its power and possession for proper determination of the matter in issue before the Court. The Court held as under: -
"It is a settled principle of law that a person who approaches the Court has primary onus to prove the facts averred for the grant of the relief prayed for. But it is equally true that the parties have to discharge their respective onus in the proceedings under Section 24 of the Hindu Marriage Act. Such proceedings are kind of summary proceedings and are normally never put to regular trial. In these circumstances, it becomes necessary that the parties to these proceedings must come before the Court with clean hands and must discharge their respective onus. Merely vague denial or there being no affidavit in support of the case of either of the parties, cannot give advantage to that party in the event any party withhold the best evidence which in normal course he/she ought to have in power and possession, the Court would be well within its jurisdiction to draw adverse inference against that party. In this regard, reference can be made to the case of Gurvinder Singh v. Harjit Kaur and Ors., (1998-2)119 P.L.R. 422 (Para 2).
".....It is expected from every litigant irrespective of the fact whether he is seeking relief from the Court or not that he would state true and correct facts. There is not only implied but specific obligation upon every party who approaches the Court to verify the facts true to the knowledge and belief of the party specially in the cases of present kind where the Court has to take prima facie view keeping in mind the urgency of the matter regarding grant or refusal of maintenance. Primarily the onus has to be discharged by respective parties in support of the averments made in the application or reply as the case may be. Concept of heavy burden of proof would be applicable during the trial where the parties have the liberty to lead oral and documentary evidence in support of their case. The Court would be well within its jurisdiction to draw adverse inference against a party who actually or attempt to withhold the best evidence and true facts from the Court with intention to frustrate the claim of others at this preliminary state of proceedings......"
8. As already noticed, the husband is admittedly to be medical practitioner. The quantum of income in absence of any definite evidence, has to be determined by this Court on some guess work. A skilled labour even earns more than Rs. 1,500/- per month today. Therefore, it is not possible to believe that a doctor cannot earn an amount more than a skilled labourer. I would have no hesitation in drawing somewhat adverse inference against the husband for not disclosing the correct income and placing on record the relevant documents. Thus, I would conclude that the income of the husband is not less than Rs. 2,000/- per month even if he is practising in a remote place. The wife is stated to be earning Rs. 400/- per month and this has been admitted by her mother also. I would not disbelieve this averment.
9. Keeping in view the above facts it will be appropriate to fix maintenance for all the 3 children and the wife at the rate of Rs. 1,100/- per month. This amount of maintenance would obviously include the sum of Rs. 900/- per month which has been fixed by the learned Magistrate in relation to children. It was further pointed out during the course of hearing that the husband has not paid even a single penny in furtherance to the orders passed by the learned Magistrate. Without prejudice to the rights of the parties which are available to them in accordance with law before the learned Magistrate, it is directed that the husband would pay a sum of Rs. 1,100/- per month (inclusive of the amount payable under Section 125 of the Cr.P.C.) with effect from 4.7.1997, the date of filing of the application. The arrears would be paid within 3 months from the date of pronouncement and thereafter the husband would continue to pay the said amount by 10th of each succeeding month. The litigation expenses are fixed at Rs. 1,500/-.
10. Resultantly, the application filed by the husband under Section 24 of the Hindu Marriage Act being CM No. 15-M of 1998 is dismissed while the application filed by the wife being CM No. 64-M of 1997 is allowed in the above terms.