Allahabad High Court
Smt. Krishna Kumari vs Ivth Additional District Judge, ... on 11 April, 1988
Equivalent citations: AIR1989ALL198, AIR 1989 ALLAHABAD 198, 1988 ALL. L. J. 792, 1990 (1) HINDULR 177, (1988) 2 CIV LJ 457, 1988 (3) DMC 252, 1988 (2) DMC 215, 1988 ALL WC 1049, 1988 (2) HINDULR 502
ORDER Ravi S. Dhavan, J.
1. This writ petition arises as a consequence of proceedings seeking maintenance under the Hindu Marriage Act, 1955, from now on referred to as the Act. The petitioner is the wife. Ram Prasad Sahu respondent 3 is the husband. He instituted proceedings seeking divorce under Section 13 of the Act; pendente lite the proceeding for divorce the wife sought maintenance. The husband, the record shows, is a Signal Inspector and works for the Indian Railways. The wife is the daughter of a petty shopkeeper.
2. While the proceedings for divorce were pending the petitioner sought maintenance and/costs incurred to mitigate and defray the litigation expenses. For maintenance the claim was Rs. 700/- per month. The claim for costs incurred at Rs. 3000/- and what may be incurred during litigation at Rs. 3700/-. The Civil Judge, Hamirpur, who considered the application for main tenance and costs, having rationally examined the matter and having considered the capacity of the husband to pay and the need of the wife for maintenance granted a modest maintenance of Rs. 300/-per month and costs incurred in litigation, so far at Rs. 600/-. This is the order of 17 October, 1986 passed on the application of the wife seeking maintenance and costs. The husband did not accept the order of the Civil Judge, Hamirpur.
3. It is on record that the proceedings were delayed by the husband when the matter was pending consideration before the Civil Judge, Hamirpur. He filed an Appeal No. 80 of 1986 before the Court of the IVth Additional District Judge, Hamirpur, hereinafter referred to as the Additional District Judge. The purpose of filing the appeal was clear. The order of the Civil Judge, Hamirpur, granting maintenance was stalled. The attempt being to seek a direction of remand so that whatever had been granted on maintenance and costs pendente lite the petition for divorce could be reviewed. The only plea raised in appeal before the Additional District Judge was in effect, that the respondent husband did not have an adequate opportunity to place evidence on record on the matter relating to the rate of maintenance and costs. Unfortunately, the appeal succeeded with the direction that the Civil Judge, Hamirpur, would reconsider the rate of maintenance and costs. This was the order of the Additional District Judge dated 15th May, 1987.
4. While this writ petition was pending the order of the Civil Judge, Hamirpur, upon a remand was also occasioned and was brought on record by a supplementary counter-affidavit on behalf of the respondent husband. This order is dated 6 Nov., 1987. The ultimate result on remand is that the Civil, Judge, Hamirpur, reduced the maintenance by Rs. 50/- and the costs by Rs. 100/-. In effect now the maintenance would be Rs. 250/- per month and costs at Rs. 500/-.
5. While this writ petition was pending the Court had explored the possibility of a reconciliation between the husband arid the wife and learned counsel for the parties Dr. R. R. Dwivedi, Senior Advocate and Mr. N. K. Saxena, Advocate, were amenable to the suggestion of the Court that even if there is the remotest chance that the husband and wife may get together again an effort ought to be made. Learned counsel for the parties conferred between themselves, summoned their clients but the exercise did not succeed. Thus, unless the efforts succeed later during the pendency of the divorce proceedings this Court now has no option but to examine the merits of the issue in the writ petition.
6. On behalf of the petitioner wife it has been submitted that far from maintaining the order which has now been occasioned after remand by which maintenance has been reduced by Rs. 50/- and the costs by Rs. 100/-the Court must examine why it was necessary, in appeal, for the learned Additional District Judge, to set aside the earlier order of the Civil Judge when maintenance stood at the rale of Rs. 300/- and the costs at Rs. 600/-. Learned counsel for the respondent could not come out with any proposition to show that the order of the Civil Judge before or after remand was radically different so as to justify reducing the rate of maintenance or the costs awarded.
7. The Civil Judge in his order of 17 Oct., 1986 noticed that the wife merely assisted her father, a petty shopkeeper. The Civil Judge after examining the facts came to the conclusion that merely because the petitioner helped her father could hardly lead to any conclusion that she had an independent income of her own out of her father's petty business. The husband had produced evidence, being photographs and certain grpcery lists written by the wife while dispensing business from the little shop to prove that she was in business. The Civil Judge was not impressed by this evidence so as to come to the conclusion that the business was of the wife and not of her father. The Civil Judge also was conscious of the fact that the wife sat in the shop sometimes with her father to while away the idle hours. There is no dispute on the issue that the petitioner's father has a very small shop with a modest investment the income of which is barely sufficient to sustain her father's family. The Civil Judge also noticed that the husband worked as a Signal Inspector who disclosed his income as Rs. 1063/- inclusive of all allowances. The Civil Judge was not satisfied that the income of a government employee would remain static and was also conscious of the fact that the emoluments of the husband must have increased consequent upon the recommendations of the IVth Pay Commission Report for Central Government employees. The husband did not disclose the increase in his wages. Thus, the maintenance was fixed at Rs. 300/- and costs at Rs. 600/-. The Civil Judge has recorded that there was an attempt to delay proceedings when the husband sought lime to produce certain evidence on the income of the wife so as to resist the award of maintenance.
8. The Additional District Judge virtually endorsed the findings of the Civil Judge and was satisfied that merely because the wife assisled her father in running a petty business by being present at the little shop al times could not give rise to any presumption that she had an income of her own. The Additional District Judge also noticed that the husband had delayed the course of the divorce petition filed by him, by first, having it dismissed for default, but seems to accept the contention of the husband that he be given an opportunity to refute the contention of his wife that she does not have an income of her own. The Additional District Judge also noticed that an opportunity to produce evidence was granted by the Civil Judge but yet the husband delayed the production of it. The Additional District Judge felt that more opportunity ought to have been granted to the husband for prod ucing evidence. Thus, the appellate Court made an order of remand.
When the matter was referred back to the Court of the Civil Judge, Hamirpur, upon an order of remand, the only evidence which the husband produced was three witnesses. These three witnesses deposed, in reference to the context, that the wife assists her father in the business of the shop. The other facts which come on record now in the order of the Civil Judge a re that the wife has two little brothers of which one is a spastic and there is no other man except her father to look after the shop and the shop is the only business which provided livelihood for the petitioner's father and the turn over of the business is not much. Even after remand, before the Civil Judge, on the oral evidence produced by the husband nothing tangible came before the trial Court so as to shake the earlier findings which noticed the circumstances upon which maintenance and costs of litigation were awarded initially. Merely producing three witnesses to make a statement that the wife is sitting at the shop along with her father does not give rise to the presumption that she has an income of her own. That, the husband even after getting an opporlunity to produce evidence could not adduce evidence to dislodge the earlier findings of the Civil Judge upon which the rate for mainlenancc had been fixed and certain costs granted. The only other aspect which came on record, far from aiding the case of the husband in reducing the maintenance was a circumstance that his gross salary is Rs. 1063/- and may be Rs. 2500/-. The Civil Judge after the order of remand has noticed the submissions on behalf of the wife that the gross emoluments of a railway employee inclusive of the allowances may be Rs. 2500/-. The exact take home pay has not come on record and it must be brought on record by an enquiry by the Civil Judge, Hamirpur.
9. From the record this Court gets the impression that the respondent husband has harassed the petitioner wife in delaying the receipt of maintenance on one pretext or the other while his salary is inflation linked and increases proportionately every time the cost of living index increases. But on the other hand given a chance he desires the maintenance awarded to his wife to be reduced. The maintenance granted by the Civil Judge at Rs. 300/- initially in any case in terms of the value of money has been eroded by inflation and is not worth the same amount than when it was originally awarded. There was no justification for the Additional District Judge to have passed an order of remand and the worth of the bona fides of the husband becomes apparent when after having obtained an order of remand the only evidence which he arranges to produce are three witnesses to contribute their impression that the lady is sitting at the shop. This proves nothing except what they saw.
10. The order of remand delayed the proceedings and stalled the benefit of maintenance to be received by the wife. The Civil Judge forced to act upon an order of remand neither received any new facts and logically was not in a position to dislodge the earlier findings by which the rate of maintenance and costs had been fixed. The record shows that the wife comes from a very humble background with a father who is no more than a petty shopkeeper sitting in a petty shop 8' x 16' who has yet to maintain a wife and two children, one of them a spastic. The petitioner wife is an oriental girl who is accustomed to stay at home and has not seen more than her father's house and must now stay there and suffer the absence of maintenance, which has yet to arrive along with the trauma of the divorce proceedings filed against her.
11. The facts and circumstances of this case make this Court observe that in a matter relating to maintenance, the appellate Court must be cautious and slow to grant an order of remand in rejudging the order of maintenance unless the trial Court has made some blatant and manifest error in exercise of its discretion in granting maintenance to the wife. Should the appellate Court be under the impression that the order of granting maintenance is not callous and capricious, and the discretion has been exercised by the trial Court reasonably, then it must not interfere with the order of maintenance as for a woman who does not work, and comes from a background where she may have to bear embarrassment of either living alone or under her parent's roof, denial of reasonable maintenance can lead to serious psychological damage besides delaying the divorce proceedings.
12. This Court thus quashes order of the 4th Additional District Judge, Hamirpur dated 15 May 1987 (Annexure 4 to the writ petition) and the consequential order on remand passed by the Civil Judge, Hamirpur being the order of 6 Nov., 1987. The earlier order of the learned Civil Judge, Hamirpur dated 6 Oct., 1986 stands.
13. The maintenance which hitherto would have been paid shall be deposited before the Court of the Civil Judge, Hamirpur within one month of a certified copy of this judgment being placed before the said Court. The arrears of maintenance will be computed and quantified by the learned Civil Judge, Hamirpur and thereafter 10% simple interest will be required to be deposited by the husband respondent to mitigate the delay caused in delivering maintenance to the petitioner wife. The interest shall be deposited with the Court of the Civil Judge, Hamirpur within 15 days after the arrears of maintenance and costs are deposited in pursuance of the order of 17 Oct., 1986. The maintenance shall be paid from the date when it was meant to have been paid as a consequence of the order of 17 Oct., 1986.
14. It will be open to the petitioner wife to apply to the Civil Judge, Hamirpur to call upon the respondent and the railway administration concerned to disclose to the Court the gross salary and the take home emoluments paid to the respondent husband. Thereafter, when this information is on record the Civil Judge, Hamirpur may reassess the maintenance a d enhance it proportionately should the circumstances permit.
15. The writ petition succeeds and is allowed with costs.