IN THE SUPREME COURT OF INDIA
KULBHUSHAN KUMAR …PETITIONER
RAJ KUMARI & ANR. …RESPONDENT
DATE OF JUDGMENT: 20/10/1970
BENCH: MITTER, G.K. RAY, A.N.
CITATION: 1971 AIR 234 1971 SCR (2) 672 1970 SCC (3) 129
HinduAdoptions andMaintenance Act (78of 1956), s. 23 (2) –Amounts received by wife Monthly from, father-If could be taken into account in determiningmaintenance- Husband’s ‘free income’,how determined-Amountof maintenance and date from which payable.
HELD : (1) Even if the wife received some amounts fromher fatherregularly it was only a bounty and nother income.
Therefore it could not be taken into account under s.
23(2)(d) ofthe Act in determining theamountof maintenance. [678 A-B] (2) There was no evidence of her inheriting any property of her father on his death. [678 C] (3) The amount payable by way of maintenance depends on the facts of eachcase and the JudicialCommittee, inMt.
Ekradeshwari v. Homeshwar, did not lay down any principle relating to the proportion of the husband’s ‘free income’ which would be payable as maintenance to the wife. [679 F-G] In thecircumstances of this case, no exception could be taken to the amount fixed by the High Court as well asthe date. from which the maintenance would be claimable.In determining the limit at 25% of the ‘free income’ ofthe appellant, amounts payable towards income tax, compulsory provident fund, and expenses for maintaining the carfor professional purposesas allowed by theincometax authorities, should be allowed as deductions fromthe husband’s total income. [680 A-C, F-G] Mt. Ekradeshwari v.Homeshwar, A.I.R. 1929 P.C.128 applied.
CIVIL APPELLATE JURISDICTION : Civil Appeals Nos. 2564and 2589 of 1966.
Appeals from the judgments and decrees dated March 10,1965 of the Allahabad High Court, Lucknow Bench inFirst Civil Appeals Nos. 5 and 6 of 1958, respectively.
G. N. Dikshit and B. Datta, for the appellant (in both the appeals).
C. B.Agarwala, Uma Mehta, S. K. Bagga and S. Bagga,for the respondent (in both the appeals).
The Judgment of the Court was delivered by Mitter,J. These two appeals are fromtwo judgmentsand decrees of the High Court of Allahabad grantingmaintenance to the wife and daughter of the common appellant in both the appeals.
Counselfor the appellant did not contest the right ofthe respondents to claim maintenance. His argument was directed only against the quantum fixed in both the cases onthe groundthat the principles laid down in s. 2 3 (2) ofthe Hindu Adoptions and Maintenance Act, 1956 had notbeen followed by the High Court. The Act had comeinto force beforethe date of the trial court’s judgment on the 1st June 1957 and it is the common case of the parties thatthe Act governs the rights of the parties herein. The relevant portion of s. 23 runs as follows :- “( 1 ) It shall be in the discretion ofthe court todetermine whether any, and if so, what, maintenance shall be awarded underthe provisions of this Act, and in doing sothe court shall have due regard to thecon- siderations set out in sub-section (2) or sub- section (3), as the casemay be, as far as they are applicable.
(2) Indeterminingtheamountof maintenance, if any, tobe 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 parties;
(b) the reasonable wants of the claimant;
(c) ifthe 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;
674 (e) thenumber of persons entitledto maintenance under this Act.
As itwas contendedon behalf ofthe appellantthat practically all the provisions of the sub-clauses of sub-s.
(2) were disregarded by the High Court, it is necessary to state a few facts about the married life of the appellant, his income out of which maintenance is to be directed,the pecuniary conditions of himself and of his wife and whether the wife has any other income or property which had to be taken into consideration.
The marriage of the appellant with the respondent inthe first appeal took place in May 1945 at Gujranwala now in Pakistan. Thefather-in-lawof theappellant ‘whowas examined as a witness in the maintenance suit filed bythe respondent gave evidence to the effect that he had worked as an agent of the Standard Vacuum Oil Company with agencies at Gujranwala andneighboring districts and thathis annual income at the date of the marriage of the respondentwas about Rs. 40,000/- out of which he had to pay Rs. 13,000/- by way of income-tax. Further, after the partition of India he came to Dehra Dun and took up his abode atPremonitory RefugeeCamp but could not engage himselfactively in business on account of illness and old age but had become a partner with others in a business of ice and rice mill in which he hada Rs. 0-2-6 share; he had never seenthe accounts of the business and was content to accept whatever was given to him by his partners which variedbetweenRs.
50/- and Rs.200/- per month. He had to leave allhis property in Pakistan and had not received anycompensation in lieu thereof at the date when he was examined in court in March 1956.
There is some dispute about the period during whichthe partiesin the first appeal had lived together as manand wife.According to the husband the period had come to an end in March 1946 while according to the wife it had lasted up to December 1946. Admittedly, a daughter, the respondent in the second appeal, was born out of the wedlock on August 4, 1946. The wifesent alayer’s notice claiming maintenance onJuly 28, 1951 and filed a suit forthe purposeadding a claim to ornaments which according toher were left with the husband. The lawyer’s notice states that the, news of the birth of the daughter had been conveyed to the parents by his father-in-law by registered post butthe latter had refused to accept it, that the wife had been sent by the appellant to Gujranwala for the confinement in1946 and all her stridhana jewellery, silk clothes etc. hadbeen left behind with the appellant at Lucknow. On the basis that the appellant was receiving Rs. 560/- per month as salary from Government 675 and was earning Rs. 800/- per monthby wayof private practice: besides income from agricultural lands, the wife’s claim to maintenancewas laid at therate of halfthe earnings of the husband inclusive of the maintenance ofthe minor girl who had to be educated and brought up according to the husband’s status in life.
The suit for maintenance was actually filed on April27, 1954 by the wife claiming besides the value of the ornaments a decree forarrearsof maintenance amounting toRs.
21,600/and future maintenance at the rate of Rs. 600/-per month.The claim made in the daughter’s suit filed on April 5, 1955 was at the rate of Rs. 150/- per month.
The trial court decreed the two suits awarding maintenanceto the wife at Rs. 100/- per month as from the date ofthe decree i.e. 1st June, 1957 and at the rate of Rs. 25/-per month for the daughter negativing the claim to the value of the ornaments.
The High Court allowed the claim of the wife to a monthly maintenance of Rs. 250/- from the date of the institution of the suit subject to a limit i.e. that the husband wouldnot be liable at any time to pay more than 25% of the total incomeas accepted by the income-tax authorities by way of maintenance. With regard to the daughter, theHigh Court fixed the amount of maintenance at Rs. 1501- per month subjectto a similar limit as in the case of the wife,the quantumbeingdirected not to exceed 15% ofthe average monthly income of the father.
The relevant facts as they emerge from the oral and documen- tary evidence adduced by the parties so far as the same have a bearing on the factors mentioned in sub-cls. (a) to (d) of s. 23 (2) besides the above may be stated briefly. Wehave already noted that the father of the wife was a fairly well- to-do person at the time when the marriage had taken place.
There was however a serious reversal of his fortunes after the partition of the country.According to him no talk of any dowry had taken place between the parties-beforethe marriage of his daughter. The appellant who had qualified himselfin medicine had goneJr to Gujranwala from Lucknow for the marriage. The appellant’s mother had seenthe respondent several times before the nuptials. His daughter had accompanied the appellant to. Lahore immediately after the marriage but had come back from there within 10 to 15 days.
The respondent’s evidence was that except forvery brief periodsfrom October 1945 to March 1946 she had scarcely lived with her husband who was working in a medical college at Lucknow starting on a salary of Rs. 280/- per month.Her 67 6 evidence was that she was not well received in her husband’s familybecause her mother-in-law was disappointed withthe dowry brought by her.
From the oral and documentary evidence it appears thatthe husbandwas never anxious to have the company of thewife and her attempts to make the married life a normal oneby going to Lucknow three times did not havethe desired effect.The husband used to write to her but stopped doing so some two months after the birth of herdaughter in August,1946.She had written a number of letters toher husband from 1946 to 1949 without receiving any reply.On the last occasion when she had gone to thehusband at Lucknowthe latter was absent from home for four daysand she could not find out whether he ‘was attending his college duringthat time. The husband had met her at Lucknowwhen she went there with her daughter but made himself scarce after the first day. The husband’s evidence shows clearly that he was disillusioned about the wife immediately after the marriage inasmuch as he found the wife to be a girl of littleeducation whereas he had been given to understand that she hadtaken a master’s degreein arts. Hehad howevertriedto reconcile himself with his lot.His statement even in examination-in-chief does not show that he was at any time anxious to receive his wife or to keepher with him. Hehad kept up correspondence with hertill August 1946 when he received a registered letter intimating him of the birth of his daughter. For live years thereafter from the time of the partition of the country, he had no news of his wife and child.In 1951 he receivedthe lawyer’s notice. Atthe time of his marriage he was a resident medical officer drawing a fixed salary of Rs. 280/- p.m. with free quarters. He became a lecturer in medicine in December 1945 on a salary of Rs. 280/- with prospects of increment up to Rs. 400/-. In 1953 he became a Reader in medicine on a scale of Rs. 500-30-800.His salary atthe time of his ,giving evidence in court was Rs. 620/- plus 10% by wayof dearness allowance.He also had some private practice whichcame to no more thanRs. 25,000 to Rs.
30,000/- during the entire period from 1945 to1957.His bank balance had never crossed the limit of Rs. 2,000/-. He had no other assets except a piece of land in Ambala given by way of compensation for lands owned in Pakistan. Hehad purchased a car for Rs. 10,000./and his monthly expenses for the upkeep of it including the chauffeur’s pay was Rs.70/- p.m. He had no idea of the financial status ofhis father-in-law.