Gujarat High Court
Dharamsi Dahyabhai Patel vs Devyani Dharamsi Patel on 11 November, 1992
Equivalent citations: I(1993)DMC605, (1993)1GLR387
JUDGMENT S.D Shah, J.
1. The petitioner-Husband has, by this revision application, challenged the order passed by the Civil Judge (S.D.), Morvi, dated 26th March, 1992 awarding interim maintenance at the rate of Rs. 1,500/- p.m. to the respondent-Wife with effect from 21st June, 1991.
The respondent-Wife instituted Spl Civil Suit No. 75 of 1991 in the Court of Civil Judge (S.D.), Morvi under Section 18 read with Section 23 for maintenance under Hindu Adoption & Maintenance Act, 1956. In the said suit she applied for interim maintenance at the rate of Rs. 3,000/- per month by application, dated 21st June, 1991 at Exh. 7. In the said application she, inter alia, contended that she is legally wedded wife of the petitioner and out of wed-lock two children are born. The husband is serving in Bank of Baroda as Agricultural Officer and their married life was initially happy. It is her case that during the posting of her husband at Nakhatrana, Ajar and Khedoi their relations as husband and wife were quite normal, and their married life was quite happy. However, after the transfer of her husband at Morvi the brothers of her husband and the mother came to reside with them and trouble started in the marital life. It is her further case that she was ill-treated by her husband and such ill-treatment resulted into mental depression to her, and she was required to be taken to her parent's place. It is her case that thereafter her husband has not permitted her to stay with him and has neglected to maintain her. She has, therefore, filed suit to recover maintenance as the husband has neglected to maintain her. In paras 16 to 18 of the application Exh. 7 she has stated that the husband is serving in the cadre of officer in the Bank of Baroda and drawing salary of more than Rs. 5,000/- p.m. She has further stated that land admeasuring 16.acres and 5 gunthas at village of Pipadia of Morvi Taluka belongs to joint family in which her husband has l/3rd share. Similarly, there is a big residential house at village Pipadia in which her husband has l/3rd share. She has further stated that at Morvi there is a residential house of the ownership of the husband. Details of other properties are given, and she has further averred that she has no income nor has she any source of income. She has stated that she has been staying with her parents from the date she has been deserted and that she is entitled to maintenance at the rate of Rs. 3,000/- per month looking to the income of her husband.
2. To said application for maintenance the petitioner-Husband has filed written statement at Exh. 17 inter alia contending that the wife Was suffering from some mental ailment and she was required to be treated by psychiatrists. It is his further case that since the end of 1986 wife was required to be treated by Dr. Kakkad, Psychiatrists and was treated by Dr. V.D. Shah and Dr. Rajesh Maniar, both Psychiatrists of Ahmedabad. He has further stated that since the wife was suffering from mental disorder and was behaving quite awkwardly and improperly it was not possible for him as well as his children to stay with her. He has further submitted that the wife was not in a position to look after the children and the children and himself were often required to go to school and office respectively without any food. He has further stated that since wife was not in a position to attend to the daily chores and to look after household work his mother and brother's wife were called to stay with them and that his wife has ill-treated them. He has further submitted that after permissible deductions his salary was only Rs. 3,391/-per month and that he has the responsibility of maintaining his mother, two children who are grown up besides himself. He has further submitted that the wife is well-placed in life and is being fully looked after by her parents and that no maintenance is required to be awarded to her.
3. On the aforesaid pleadings, the learned trial Judge has passed the impugned order after hearing the learned Advocates of the parties and after taking into consideration the documentary evidence produced on record in support of the rival versions. The trial Court has found that wife was entitled to receive interim maintenance from the husband and after taking into consideration the income of the husband, the status of the family, and the way in which the respondent-Wife has lived with the husband at a point of time when the marital life was not in doldrums and awarded interim maintenance of Rs. 1,500/- per month from the date of the application, i.e. 21st June,1991.
4. Miss Rani Advani, learned Advocate appearing for the petitioner Hasband has assailed the order of the trial Court by vehemently contending that the order passed by the trial Court is without jurisdiction inasmuch as the Civil Court acting under the provisions of Hindu Adoption and Maintenance Act has no power to grant interim maintenance. She has further submitted that the trial Court has failed to take into consideration the provisions of Section 23(3)(b) and Section 3(2)(e) of Hindu Adoption and Maintenance Act. In her submission, the trial Court has not quantified the reasonable wants of the wife and has not ascertained the amount awardable to her towards maintenance. She has further submitted that the quantification of the income of the husband is also bad in asmuch it is contrary to the material on record. She has submitted that whenever maintenance is granted by the Court to the needy spouse there must be no element of saving in such maintenance and award of maintenance should not result into profitable proposition to the applicant. In her submission, the trial Court has rather taken an emotional approach to the entire problem and has out of tender feelings for the weaker sex awarded rather lenient maintenance to the wife thereby depriving the husband and his family of the amount which is legitimately required by the husband to maintain himself and his two grown up children and aged mother. She submitted that the order of maintenance is, therefore, bad and required to be quashed and set aside.
5. Mr. J. V. Desai, learned Advocate appearing for respondens-Wife has, on the other hand, strenuously urged before this Court that the order passed by the Trial Court is the order of interim maintenance during the pendency of suit. Therefore, unless the order is patently bad and with out jurisdiction, this Court should not interfere in a revision application under Section 115 C.P. Code. He has further submitted that the award of maintenance at the rate of Rs. 1,500/- per month to the wife who is admittedly suffering from peychic disease and who has to undergo continuous treatment cannot be said to be in any sense and term over-liberal award and in his submission looking to the salary statement of the petitioner-Husband the trial Court has not even awarded l/4th of the amount and therefore no interference of this Court is called for.
6. Before I proceed to deal with the rival versions of the parties, it is required to be stated that an attempt was made by this Court to bring about reconciliation between the parties. The respondent-Wife and the petitioner husband were called in my chamber and their wishes were ascertained. From my talks with the parties it transpired that their initial married life in Kutch District was quite happy and congenial and that trouble in their married life started only after the husband was transferred to Morvi. It also transpired that the wife suffered from some psychic disorder and was under the treatment of Psychiatrists. It also transpired that the said treatment was practically over and the raspondent-Wife, according to her, is leading quite normal life with her parents. She exprersed her readiness and willingness to go and stay with her husband and children. She way even prepared to stay with her mother-in-law and entire family. The petitioner-Husband however was not ready to stay with wife as he was apprehending some trouble to himself or to his children and he was also apprehending that it was not safe to stay with the wife. Despite persuasion to both the parties, no amicable solution was possible, and therefore, this matter is now required to be decided.
7. In view of the fact that the marriage between the parties is an admitted fact, and in view of the fact that the wife has admittedly no independent source of income, the liability to maintain 'the wife is on the husband and he has not disputed his liability to maintain the wife. The main dispute between the parties in this revision is about the quantum of maintenance, and how such quantum of maintenance be reached.
8. Before adverting to the statutory provisions of Hindu Adoption and Maintenance Act and the judicial pronouncements on the question of determination of quantam of maintenance, it would be appropriate at this stage to refer to, the documentary evidence on record before the trial Court at the stage of deciding this application for interim maintenance. The salary certificate of the husband is produced on record at document mark 34/1. As per the said salary statement the total salary of the petitioner works out to Rs. 7,065/- p. m. From the said salary amount of Rs. 1,882.30 ps. is deducted towards premium of Life Insurance, contribution towards Provident fund, deduction towards Income Tax and Profession Tax and various other deductions under the head of Festival Advance, loan of credit society, loan of vehicle and HSG loans are made. It is also the case of the wife that over and above the income from the salary the petitioner-Husband has his share from the agricultural properties of the joint Hindu family, and according to her husband-petitioner gets approximately Rs. 400-500 per month from such agricultural income. At this stage, it is not possible for this Court to refer to any other evidence about the income of the husband nor it is permissible for this Court to record any finding about the exact income of the husband available to him for maintaining himself and his family. However, it shall have to be noted that the full amount of Rs. 7,0651- p.m. towards salary as is reflected in the salary statement at mark 34/1 is not available to the husband and there are certain permissible deductions which shall have to be made from the salary of the husband. The amounts which are to be paid by the husband towdrds Income Tax and Professional Tax would certainly be deductible from the total amount of salary receivable by him. (See Kulbhushan v. Rajkumari, reported in AIR 1971 SC 234 at 239). The question as to whether the contribution to be made by the employees towards Provident Fund is deductible or not is no longer res Integra in view of the decision of the Supreme Court in case of Kulbhushan (supra) where the Supreme Court has held that the contributions towards Provident Fund which have to be made compulsorily are deductible while assessing the disposable income of the husband. Contrary view taken by the learned Single Judge of this Court in the case of Smt. Shilaben Yogeshkumar Shah v. Yogeshkumar Vithaldas, reported in 1990 (1) GLR 58 holding that the contributions towards provident fund cannot be deducted for the purpose of arriving at actual income since it is saving of the husband, though appears to be rational and reasonable cannot be accepted by me in view of the binding precedent of the Supreme Court in the case of Kulbhushan (supra) which was not brought to the notice of the learned Single Judge who decided the said case. The decision of the learned Single Judge of this Court in the aforesaide case is therefore per incurium and it shall have to be held that the contibutions towards provident fund which have to be made compulsorily are deductible from the income of the husband.
9. As regards other deductions, namely, deductions towards Festival Advance, Premium of Life Insurance, Loans of credit society, vehicle and HSG, I am of the opinion that the same are not deductible from the salary of the husband. The amounts withdrawn by the husband towards Festival Advance, Car loan or his borrowings from the credit society are the amounts which the husband is spending for himself and for the members of his family and the same cannot be deducted from the income of the husband.
10. Keeping the aforesaid principle in mind at this stage if the income of the husband is determined in my opinion the amount payable by him towards Income Tax, Profession Tax and contribution towards Provident Fund shall have to be deducted and if the same are deducted an amount of Rs. 5184/- is available to the husband and at this stage based on such income without taking into consideration the other income which the husband is allegedly receiving from his ancestral properties I would tentatively determine the income of the husband at Rs. 5,000/- p.m. approximately. I make it clear that this finding is purely tentative and in no way binding on the trial Court while deciding the liability of the husband to maintain his wife. On the basis that the husband would receive an amount of Rs. 5,000/- p.m. I would proceed to consider the question of quantum Of maintenance awardable to the wife in the facts and circumstances of the case.
11. Prior to enactment of Hindu Adoption and Maintenance Act. 1956, the position of law as to the liability to pay maintenance was considered in the leading case of Mt. Ekradeshwari v. Homeswar, reported in AIR 1929 PC 128 wherein the PC has to deal with the case of a widow of the deceased in the junior line of ^ell-known Darbhanga family in Bihar. The PC pointed out that fixation of maintenance depends upon a number of factors and must be determined on the facts of the particular case. According to PC the maintenance depends upon :
"a gathering together of all the facts of the situation, the amount of free estate, the past life of the married parties and the families, a survey of the condition and necessities and rights of the members, on a reasonable view of change of circumstances possibly required 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. In short, it is out of a great category of circumstances, small in themselves that a safe and reasonable induction is to be made by a Court of law in arriving at a fixed sum."
12. The aforesaid observations of the PC are approved by the Supreme Court in the case & of Kulbhushan (supra). The Supreme Court has, in fact, observed that Sub-sec (2) of Section 23 of Hindu Adoption and Maintenance Act, 1956 makes no departure from the principles enunciated by the PC, except perhaps to a limited extent envisaged in Sub-cls. (d) and (e) of the said Sub-sections.
13. The aforesaid position of law of Maintenance as stated by the Privy Council in fact has not undergone any substantial change after codification of law by enactment of Hindu Adoption and Maintenance Act, 1956. Sub-section (3)(b) of the said Act. inter alia, defines "Maintenance" to include in all cases, provision for food, clothing, residence, education and medical attendance and treatment. Nothing short of the aforesaid requirements will do in terms of Sub-section (3) clause (b) Sub-clause (i) of the Act. In sum, what the Statute prescribes is real maintenance, not a bare or "starving" maintenance. The person maintained is not to suffer to live the life of an animal. Law apart, that is plain common-sense, that is the minimal in a civilized society. That is consistent with the dictates of common-sense. Again barely minimal amount of maintenance without heeding for clothing, residence as also for medical attendance and treatment will fall short of maintenance. The concept of maintenance has thus received a wider connotation as statutorily recognised by the broad definition of "Maintenance". At the same time it shall have to be kept in mind that while awarding maintenance to the claimant the Court shall not be blind to the liabilities of the person who is bound to maintain. Such a person is not to be rendered pauper himself needing maintenance.
This principle has now received statutory recognition in Section 23 of the Act which leaves the amount of maintenance not to the caprice but to the sound discretion, of the Court which shall have due regard to the considerations mentioned in Section 23. (See Kiranbala. Saha v. Bankim Chandra Saha, reported in AIR 1967 Cacutta 603).
14. Section 18 of the Act substantially reiterates the Hindu Law principle that the right of the wife for maintenance is an incident of the status of matrimony and a Hindu is under legal obligation to maintain his wife. The obligation to maintain the wife is personal in character and arises from the very existence of the relation between the parties.
15. Section 18 is required to be read with Section 23 which is material for the purpose of this revision application and relevant portion thereof reads as under :...
"Section 23. (1) it shall be in the discretion of the Court to determine whether any, and if so what, maintenance shall be awarded under the provisions of this Act, and in doing so, the Court shall have due regard to the considerations set out in Sub-section (2) or Sub-section (3), as the case may be, so far as they are applicable.
(2) In determining the amount of maintenance, if any, to be awarded to a wife, children or aged or infirm parents under this Act, regard shall be had to.
(a) The position and status of the parents,
(b) The reasonable wants of children,
(c) If'the claimant is living separately whether the claimant is justified in 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."
16. The aforesaid provisions vest wide discretion in the Court to decide whether any maintenance should or should not be awarded? In exercising its discretion in the matter of assessing the quantum of maintenance to be awarded to the wife, the Court must have regard to all the factors set out in Sub-section (2) of the Section 23. The Court must be guided by the relevant provisions of the Act, and must have regard to its object. However, the fixation of quantum of maintenance cannot be the matter of mathematical certainty.
17. Sub-section (2) read with Sub-section (1) of Section 23 leaves the matter of fixation of amount of maintenance to the discretion of the Court while stressing i hat the position and status of the parties, reasonable wants of the claimant, the income and the property of the claimant and the number of persons when the husband is bound to maintain are among the factors and circumstances which must be taken into consideration by the Court. In fixing the quantum of maintenance it would be necessary and of primary importance to consider the overall financial position of the husband. The words "position and status of the parties" in Sub-section (2) are wide enough to include the financial position of both the parties as a matter of vital consideration in the matter.
18. While considering the aforesaid factors, and mainly question as to what is required by the wife to maintain herself, the Courts have to steer clear of the two extremes, namely, they should not give maintenance to the wife which would keep her in luxury and would make judicial separation profitable and also impede any future chances of reconciliation. They should also steer clear of the other extreme, namely, penuriousness, i.e., not to drive the wife in penury (see Kasind Sahu v. Smt. Devi, reported in AIR 1971 Orissa 295).
19. While fixing quantum of maintenance the Court has to take into account not only the needs of person who claims maintenance but also the capacity, status, commitments and the obligations of person who has to pay it. If the husband has to maintain other persons like his parents, his own children etc. reasonable allowence for their maintenance shall have to be made. It would be unjust to grant maintenance in an arbitrary manner. The party who has to pay maintenance is also not to be virtually rendered a destitute. A fair balancing all the relevant factors is to be done by the Courts without making an emotional approach to the problem. The Court shall have to keep in mind that what is to be provided is the maintenance and it cannot have saving element in it nor is it the purpose of the legislature to put the claimant in a luxurious position. The definition of "maintenance" given by the Act makes this position amply clear, (vide Kailashchandra Gupta v. Chamanlal Gupta, reported in 1985 (1) Hindu Law Reporter 411). Similarly, if the ciaimant is residing in a village where the cost of living is comparatively cheaper than in the cities and towns, the Court shall have to take that factor also into account (vide 1.984 Hindu Law Reporter 704).
20. Aforesaid is the position of law which shall have to be born in mind by the Courts of law while determining the quantum of maintenance to the claimant. Applying the aforesaid principles to the facts of the present case, the Trial Court has awarded an amount of Rs. 1,500/- p.m. towards maintenance. It shall have to be accepted that the wife is required to stay with her parents. It is also required to be accepted that the wife shall have to undergo medical treatment as she was suffering from psychic disease which may recur. She may have to resort to sedatives. From the history of her ailment as narrated by the husband in his reply, it becomes clear that the wife requires medical treatment spread over a long period, and therefore, reasonable provision shall have to be made for her medical treatment also. At the same time, it shall have also to be kept in mind that the wife is residing in a village and not in crowded city or town. At the same time, it shall have also to be kept in mind that the husband is required to maintain himself, his aged mother and two grown up children. In fact, the income of the husband is therefore required to be divided into five units, and reasonable provision is required to be made for all those who are dependent upon the husband. Taking all the aforesaid factors into consideration, I am of the opinion that the amount of Rs. 1,500/- p.m. for the wife who is residing in a village is slightly on the higher side inasmuch as the husband who resides in the City shall have also to make provision for his aged mother and two grown up children besides himself. Since the purpose of maintenance is not to make the wife, in any way, richer or to put her in a luxurious condition and since the actual amount being spent by her towards medical treatment could not be determined at this stage, I am of the opinion that the amount of Rs. 1,250/- p.m. towards maintenance would be just and proper to the wife.
21. In the result, this revision application partially succeeds. The judgment and order of the Trial Court awarding Rs. 1,500/- p.m. towards maintenance to the wife with effect from 21st June, 1991 is modified and substituted by the directions to the husband to pay to the wife every month interim maintenance at the rate of Rs. 1,2501- from 21st June, 1991. Rest of the order of the Trial Court remains. The husband is directed to pay the aforesaid amount within a period of two weeks from the date of receipt of this writ at the aforesaid rate.
22. Rule made absolute to the aforesaid extent with no order as to costs.