Punjab-Haryana High Court
Surjit Kaur vs Amarjit Singh on 19 March, 1998
Equivalent citations: (1998)119PLR338
Author: Swatanter Kumar
Bench: Swatanter Kumar
JUDGMENT Swatanter Kumar, J.
1. By this common order, I propose to dispose of C.M. Nos. 24-M and 84-M of 1997 both Tiled in F.A.O. No. 29-M of 1997. While C.M. No. 24-M of 1997 is the application filed by the wife Under Section 24 of the Hindu Marriage Act praying for grant of maintenance pendente lite and litigation expenses, the C.M. No. 84-M of 1997 is the application filed for the same relief by the husband against his wife.
2. The necessary facts are:- that Surjit Kaur wife of Amarjit Singh had filed a petition Under Section 13 of the Hindu Marriage Act praying that the marriage be dissolved between the parties on the ground of cruelty and desertion. The parties were married on 7th May, 1981. They Jived together for some times. No child was born out of this wedlock and it was averred that the husband was a greedy person, addicted to drinking and demanded dowry and such other allegations have been made in the petition. The case was contested by the husband who denied the allegations of desertion and cruelty and further stated that he was willing to take the wife back to matrimonial home. He had made offer in this regard. He had also filed a petition Under Section 9 of the Hindu Marriage Act for restitution of conjugal rights, which was dismissed for non-compliance of the order of the Court for non-payment of maintenance vide order dated 12.10.1988. Even in earlier proceedings Under Section 125 of the Cr.P.C. which was filed by the wife, the wife had refused to accompany her husband. On these basis he stated that the applicant-wife is not entitled to any maintenance pendente lite and litigation expenses.
3. It needs to be noticed that the petition for divorce filed by the wife was dismissed by the learned District Judge vide judgment dated 20.2.1997 against which the First Appeal against Order has been preferred and the same is pending in this Court.
4. In the application Under Section 24 of the H.M.A. filed by the wife, has stated that she has no source of income and she does not own or possess any movable or immovable property and - is depending on her parents for her livelihood. It is averred that the husband has independent source of income. He has land situated in Village Sultanpur Lodhi as well. He is stated to be earning Rs. 10,000/- per month.
5. In the reply filed by the husband he has stated that he does not own any agricultural land. He claims to be a daily wager. Further, it is stated in reply that the wife has share in the property and she earns about Rs. 30,000/- per month as income from agricultural sources. The husband admits income of Rs. 30-40/- per day and stated that the wife is earning much more than him. On the contrary keeping in view the income of the wife in mind, the husband is claiming maintenance pendente lite and litigation expenses from the wife as prayed by him in C.M. No. 84-M of 1997.
6. None of the applicants have filed any documents on record to show that either party owns agricultural land. No documentary evidence has been placed on record to show what is the income of either spouse by one while claiming maintenance from the other spouse. Certain burden is placed upon an applicant to satisfy the Court at least prima facie as to what is the income of the spouse against whom such prayer is made. Except the applications in which bald statements have been made without giving definite particulars which are supported by the affidavits. There is no material on record which could form the basis for determining the income of any of the applicants on some definite basis. The wife has placed on record copy of the order dated 29th April, 1996 passed by the District Judge, Jalandhar on a petition Under Section 24 of the Hindu Marriage Act where the wife was awarded a sum of Rs. 350/- as maintenance pendente lite and Rs. 800/- on account of litigation expenses.
7. As earlier noticed, the parties were married in the year 1981. They lived together for some time. They did not have child from the marriage and now they have been living separately for quite some time. May be the wife has not been able to place documents on record to show that the husband owns agricultural land but her averments made in paragraph 4 of the affidavit annexed to the application claiming for maintenance has not been specifically disputed. There is vague denial of this para in the reply filed by the husband.
8. It is settled principle of regulating the construction of pleadings that every averment must be specifically admitted or denied and dealt with. The vague denial cannot come to the rescue of the non-applicant to avoid liability. Even if it is expected that the husband is a daily wager, still it cannot be believed that he earns only Rs. 30-40/- per day. It was pointed out by the counsel for the wife that the husband is a Carpenter and was so working when they were living together. Even if it is assumed for the sake of consideration that the husband is a simply unskilled labourer even then in the present day of high prices, no skilled or unskilled labour is available to work at the amount quoted by the husband. This is a matter of fact and common knowledge, of which the Court would not hesitate to take judicial notice of. In these proceedings stringent proof of income may not be insisted at this stage of proceedings. Prima facie view have to be taken by the Courts on the basis of the pleadings, facts, documents, if any, produced on record and the well enunciated principles of law governing the subject matter with some accepted canon of common behaviour and living conditions. Even if, the Court proceeds on the accepted premises that the wife with the help of her family is trying to make her both ends meet can no way be construed as disqualification of her right to seek relief of maintenance from her husband at best it would effect the quantum of maintenance and cannot be a bar specific or implied to the maintainability of such application. There are serious allegations made by the wife with regard to the manner in which husband behave. She has pleaded danger to her life. In any case this is not the appropriate stage when the Court should appreciate this contention in one way or the other as the main appeal itself is pending hearing. The husband owes a duty and responsibility to maintain his wife specially when she is in a destitute condition. Obligation to maintain arises at the very out set. If the wife is staying with the husband, she is entitled to be maintained and looked after by her husband keeping in view the economic and the social status which the husband enjoys. These are the factors which are of great relevancy and carrying significant meaning in fixation of quantum of maintenance, even when the wife is living separately from the husband. The only exception to such claim would be where claim of maintenance is barred by law or the compelling facts and circumstances of a given case which justifies denial of maintenance. This Court in the case of Dr. R.K. Sood v. Usha Rani Sood, (1996-3)114 P.L.R. 487 held as under:-
"Hindu Marriage is not yet looked at or recognised in our society and law, as a pure and simple contract like other contracts. This bond is considered more as a religious, moral and social bond of mutual duties and obligations giving marriage a religious and meaningful basis keeping in view the rituals performed at the marriage and consequent soleminisation of marriage between the parties."
In a very recent judgment, the principle enunciated by the Hon'ble Supreme Court in the case of Smt. Jasbir Kaur Sehgal v. The District Judge Dehradun, J.T. 1997(7) S.C. 531 would be relevant to reproduce at this stage.
"No set formula can be laid for fixing the amount of maintenance. It has, in very nature of things, to depend on the facts and circumstances of each case. Some scope for liverage can, however, be always there. Court has to consider the status of the parties, their respective needs, capacity of the husband to pay having regard to his reasonable expenses for his own maintenance and those he is obliged under the law and statutory but involuntary payments or deductions. Amount of maintenance fixed for the wife should be such as she can live in reasonable comfort considering her status and the mode of life she was used to when she lived with her husband and also that she does not feel handicapped in the prosecution of her case. Her right to claim maintenance fructifies on the date of the filing of the petition for divorce under the Act. Having thus fixed the date as the filing of the petition for divorce it is not always that the court has to grant the maintenance from that date. The court has discretion in the matter as to from which date maintenance Under Section 24 of the Act should be granted. The discretion of the Court would depend upon multiple circumstances which are to be kept in view. These could be the time taken to serve the respondent in the petition; the date of filing of the application Under Section 24 of the Act; conduct of the parties in the proceedings averments made in the application and the reply thereto; the tendency of the wife to inflate the income out of all proportion and that of the husband to suppress the same; and the like. There has to be honest of purpose for both the parties which unfortunately we find lacking in this case."
The needs of a spouse claiming maintenance thus has to be assessed keeping in view the facts and circumstances of each case. A mere vague denial and vague allegations cannot ever make foundation for denial of claim of maintenance. The averment of the wife that the husband owns land cannot be brushed aside in the entirety. Some element of acceptance has to be attached to the same as the parties have lived together for a considerable time and normally they would be knowing the source of income of each other. The allegation of the husband that the wife is able to earn from the land owned by her family itself shows that she is entirely dependent upon her family and at their discretion. Dependency of her on her family cannot be permitted to undermine the basic obligation of her husband to maintain his wife. The husband was earlier paying a sum of Rs. 350/- in furtherance of the order dated 29.4.1996. The said order remained in force during the pendency of the appeal before the trial Court. Even measuring it from that point of view the quantum of maintenance must be increased. If the husband is simply a labour even then he must be earning Rs. 70-80 and if he is taken to be a Carpenter, as alleged by the wife, then he must be earning Rs. 100-125 per day respectively. Either way his income cannot be assessed less than Rs. 2,500/- per month. This, however, is in addition to the fact that he is stated to own land. Generally, the Court would be inclined to grant at least 1/3rd of the salary of the husband for maintenance to the wife, if there are no apparent statutory liability or other unavoidable liabilities, which could justify grant of maintenance lesser than to 1/3rd. This cannot be a hard and fast rule or straight jacket formula because in some cases more than 1/3rd salary of the husband can be granted as maintenance, keeping in view the amount of salary of the husband.
9. Keeping in view the above discussion, C.M. No. 84-M of 1997 is dismissed without any order as to costs, while C.M. No. 24-M of 1997 is allowed. The husband shall be liable to pay maintenance at the rate of Rs. 700/- per month from the date of the order as the application itself was filed on 17th March, 1997. He would further liable to a sum of Rs. 2,000/- as litigation expenses.
10. Both C.Ms. stands disposed of.