Punjab-Haryana High Court
Gurmail Kaur vs Thana Singh on 19 August, 1999
Equivalent citations: (1999)123PLR468
Author: Swatanter Kumar
Bench: Swatanter Kumar
JUDGMENT Swatanter Kumar, J.
CM No. 12069/CII/99
1. In this application, the applicant has prayed that the respondent-husband in the present appeal be restrained from contracting another marriage during the pendency of the present appeal. This application, in fact, stood disposed of vide order dated 8.10.1998 passed by the Division Bench where the respondent has been restrained from contracting second marriage.
Consequently, this application stands disposed of, as no order is called for.
CM No. 64-M/98 This is an application filed by the appellant-wife claiming maintenance pen-dente iite at the rate of Rs. 2,000/- per month and Rs. 10,000/- as litigation expenses.
2. The undisputed facts are that the marriage between the appellant and the respondent was solemnised on 2.7.1989 at village Kothe Neemwala, Maur, Tehsil Barnala, District Sangrur according to the Sikh rites. The parties lived together as husband and wife for a short time. Later the husband filed a petition for divorce under Section 13 of the Hindu Marriage Act on the ground of cruelty towards the husband and his family members and the ground that the wife had deserted husband for a period of more than two years and six months prior to the filing of the petition. The petition itself was filed on 16.3.1995. The petition for divorce was contested by the wife. However, vide judgment dated 3.8.1998, the learned District Judge, Bathinda decreed the petition for divorce and dissolved the marriage between the parties leaving them to bear their own costs. The judgment of the learned District Judge, Bathinda, is impugned in the first appeal before this Court. The present application under Section 24 of the Hindu Marriage Act has been filed in this appeal.
3. It is averred by the appellant-wife that she has to come all the way from Sangrur to Chandigarh to pursue the appeal filed by her and in the present days of rising prices, she finds it very difficult to make the both ends meet by meagre maintenance of Rs. 400/- per months, which has been awarded to her under Section 125 of the Code of Criminal Procedure. It is further averred that at the time of filing of the application, the respondent- was working as a Naik in the Army and was drawing salary of Rs. 6,000/- per month. It is further stated that the husband has no other liability except towards the wife. During the course of arguments, it was pointed out by the learned counsel for the appellant that the respondent-husband now has become a Hawaldar in the Army and is now drawing much higher salary than what he was drawing earlier. On these facts, the appellant-wife is claiming the above maintenance and litigation expenses.
4. Reply to this application has been filed by the respondent-husband. It has not been denied in the reply that the husband is employed in the Army as Naik. It was also not denied during the course of argument that he has become Hawaldar. However, it was contended that the carry home salary after deduction of the husband is Rs. 2,500/- per month. It was averred that the wife is earning a sum of Rs. 2,500/- per month by doing the work of embroidery in addition to getting a sum of Rs. 400/- as maintenance under the order of the court under Section 125 of the Code. As such, the appellant-wife is not entitled to get any further maintenance.
5. As is clear from the above narrated facts that there is hardly any dispute as far as the status of the husband and his earning is concerned. According to the counsel for the respondent-husband, carry home salary of respondent-hus-band as Naik was Rs. 2,500/- per month, which has obviously increased on his promotion. The husband has not placed on record his salary certificate or any other relevant documents, which normally remain in his power and possession. It is specifically for the husband to give particulars of all deductions being effected from his salary. It is not understandable as to how a person receiving salary of Rs. 6,000/- would only get Rs. 2,500/- carry home salary per month after statutory deductions. It appears that the husband is making higher deductions voluntarily from his salary. That would obviously become his saving and cannot escape its inclusion to that extent from the scope of determination.
6. The onus to state true and correct facts within the knowledge of a party to the proceedings is a mandatory obligation. Withholding of relevant information or documents in power and possession of a party would normally lead to adverse inference against such party. At this stage, it would be relevant to make reference to the judgment of this court passed in the case of Gurvinder Singh v. Harjit Kaur and Anr., (1998-2) 119 P.L.R. 422, where the court has held as under:-
" .... 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 stage of proceedings . . . ."
7. The bald allegation made by the husband that the wife is doing stitching and knitting work and is earning a sum of Rs. 2,500/- per month would not, in any way, help his case. No particulars including the place where she is carrying on such work and no document supporting such version have been placed on record. In absence of such definite averments supported by appropriate evidence, it is difficult to believe that the wife is earning an amount of Rs. 2,500/-per month from such work. Even if the court assumes for the sake of arguments that the wife is making an effort to make her both ends meet by doing some work, it cannot be taken as a factor adverse to the interest to the extent that it would frustrate her right to claim maintenance from her husband. The wife is entitled to enjoy the same status and benefit which she would have enjoyed if she continued to live with her husband. If she would have lived with her husband, she would, but naturally, be entitled to number of benefits in regard to free rationing, medical, other incidental benefits etc. which are available to a family of Hawaldar of the Indian Army. In this regard, reference can be made to the judgment of this court in the case of Dr. R.K. Sood v. Usha Rani Sood, (1996-3) 114 P.L.R. 486.
8. In view of the well settled principles of law, I would have no hesitation in coming to the conclusion that Rs. 400/- per month is not an adequate and fair maintenance which is being paid to the wife by the husband under the order of the court. In the present days, to imagine a wife of Hawaldar should live with Rs. 400/- per month or little more which she may be able to collect because of her extra work, cannot befit her status, social and financial, which she would have enjoyed while living with her husband. It was for the husband to disclose his correct income so as to enable this court to come to an exact conclusion. In absence thereof, some element of assumption would have to be applied to the facts and circumstances of the present case. I am of the considered view that the wife should be entitled to receive atleast a sum of Rs. 1,150/- per month as maintenance pendente lite and Rs. 3,000/- as litigation expenses.
9. Resultargly, the above application is allowed to the extent afore-indicated.