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672 KUI,BHUSHAN KUMAR v. RAJ KUMAR! & ANR. Oc,tnber ?.0, 1970 [G. K. MITTER AND A. N. RAY, JJ.J !findu Adoptions and Maintenance Act (78 of 1956), s. 23(2) Amounts received by wife monthlyfrom faiher-lf could be takeninto account in determining maintenance-Husband's 'freeincome',how deter mined-Amount of maintenanceand date from whichpayable. The appellantand the respondent were marriedin May 1945. Some time afterthe marriage thehusbanddid not wantthe wifeto livewith him; and there was completeestrangementbetween them. A daughter was born tothemin-August1946. In 1951, the respondentsent a registered letterclaimingmaintenance,for herselfand the daughter, and in 1954, she filed thesuitfor maintenance. TheHighCourt in appeal, fixed the maintenancepayable to the res pondent,under s. 23 (2) of the· HinduAdoptions and MaintenanceAct, 1956;at Rs. 250 subjectto a limit. of 25% permensemof the income as determinedby theincome-taxauthorities, and Rs. 150 as the maintenance ofthedaughter.The HighCourt, in doing so, took into accountthe factsthat the appellant was a Readerin Medicinereceiving a sala'y of about Rs. 700 andmorethan Rs. 250 per mensem by way of ,private practice.The dateof theinstitutionof thesuit was fixed by theHigh Couit ·as terminusa quo forthepaymentof the maintenanceto the res pondent. In appeal to this Court on thequestionof maintenancepayable .to the wife. HELD: (!) Even if thewifereceived some amountsfrom her father tegularly it was onlya boµnty and not herincome. Therofore it could A B c D E not be takeninto accountunder s. 23(2) (d) of the Act in determiningF theamountof maintenance, [678 A-BJ (2) There- was no· evidence of herinheriting any propertyof her fatheron hisdeath. ~678 CJ (3) Theamountpayable by way of maintenancedepends on thefacts of each ·case and the JudicialCommittee,in Mt. Ekradesltn·ari ·v. Homeshwar, did not lay downany principlerelating to the proportion of the husband's'free income'which would· be payable as maintenance to the wife. [679F-G] In the circumstancesof this case, no exceptioncould be taken to the amount fixed by theHighCourt as well M the datefromwhichthe main tenancewould be claimable.In determiningthe limitat 25%of the -free income' of theappellant,amounts payable towardsincome tax, com pulsory providentfund, and expensesfor maintainingthe car for profes sionalpurposes as allowed by the income taic authorities,should be allowed asdeductionsfrom the husband'' total income. [ti80 A-C, F-GJ Mt. Ekradeshwari v. Homeshwar, A.I.R. 1929P.C. 128 applied. G H KULBHUSHAN V. RAJ KUMAR! (Mitter, J.) 673 A C1vn. APPELLATE JURISDICTION: Civil Appeals Nos. 2564 and 2589of 1966. Appealsfrom the judgmentsand decreesdated March 10. 1965of theAllahabadHigh Court, Lucknow Bench in First Civil AppealsNos. 5 and (i of1958,respectively. B G. N. Dikshlt and B. Datta, forthe appellaint (inboththe c D E F G H appeals). C. B.Agarwa/a, Uma Mehta, S. K. Bagga and S. Bagga, for the re;pondent (inboththe appeals). TheJudgmentof theCourt was deliveredby Mitter, J. These two appeals are from two judgments anddecreesof theHighCourtof Allahabadgranting maintenance tothewifeand daughterof thecommonappellantin boththe appeals. Counsel fortheappeilantdid notcontestthe rightof th" res pondentsto claimmaintenance. His argumentwas directedonly againstthe quantum fixed in boththe caseson thegroundthat theprincipleslaid downin s. 23 ( 2) oftheHinduAdoptions and MaintenanceAct, 1956had not beenfollowedby theHighCourt. TheAct hadcomeinto forcebeforethe date of thetrialcourt's judgmenton the1st June1957and it is the commoncase of the partiesthattheAct governsthe rightsof thepartiesherein. The relevantportion of s. 23 runs as follows :- " (l ) It shall be in thediscretionof the court to determinewhether any, and if so, what,maintenance shalibe awardedunder the provisions of thisAct,and indoing so thecourtshall havedue regardto the con siderationsset outin sub-section (2) or sub-section ( 3), as thecasemay be, as far as theyare applicable. (2} In determiningthe amountof maintenance,if any,to beawardedto a wife, childrenor aged or infirm parentsunder this Act,regardshall be had to- (a) thP. positionand statusof theparties; (b)the reasonablewants of theclaimant; (c)if theclaimant is liv,ing separately;whether the claimani-is justified iii doing so; (d)thevalueof theclaimant'sproperty and any incomederived from such property,or from theclaimant's own earningsor fromany other source; 67~ SUPREME. COURT REPORTS (1971] 2 S.C.R. ( e) the numberof personsentitled to maintenance underthis Act. " As it ms contendedon behalfof theappelantthat practicallyall theprovisionsof thesub-clausesof sub-s. (2) weredisregarded bytheHighCourt,it is necessaryto statea few factsaboutthe married life oftheappellant,his incomeout of whichmainten ance. is to bedirected,the pecuniaryconditionsof himselfand of his "ife andwhetherthe wifehas anyotherincomeor property whichhad to betaken into consideration. Themarriageof the appellant withthe respondentin thefirst appealtook place in May1945at Gujranwalanow in Pakistan. The father-in-lawof theappellantwho was ex;amined as a witness inthemaintenancesuit filed by therespondentgave evidence to the effectthat he had worked vs an ageilt of theStandardVacuum Oil Companywith agenciesat Gujranwalaand neighbouringdis trictsand that his annualincomeat thedateof themarriage of therespondent was aboutRs. 40,000/- out of which he hadto payRs. 13,000/- by wayof income-tax. Further, afterthe parti tionof Indiahe cameto nehra Dun and tookup hisabode at Premnagar RefugeeCamp but couldnot engagehimselfactively inbusinesson accountof illnessand old age but hadbecomea partnerwith 9thersin businessof iceandrice mil! in whichhe h. la Rs.0-2-6share. ie had neverseen the accountsof the busi ness and was content to acceptwhatever was given to him by his partnerswhich variedbetweenRs. 50/- a11d Rs. 200/- per ;nonth. He had to leaveall hisproperty in Pakistanand hadnot received any compensationin lieuthereofat the date whenhe wasexamin edin court in March1956. There is somedisputeabout the periodduringwhich the partiesin thefirstappealhad livedtogether as man and wife. Accordingto thehusbandthe periodhad cometo anendin March1946 whileaccordingto the w!fe it hadlasted up to Decem ber1946.Admittedly,a daughter,the respondentin thesecond appeal,was bornout of thewedlockon August4, 1946. The Wife senta lwayer'snotice claimingmaintenanceon July28. 1951and filed a suitfor the purposeadding a claim to ornaments whichaccording to her wereleft withthe husband.The lawyer's noticestates that the newsof thebirthof thedaughter haC: been conveyedto theparentsby his father-in-lawby registeredpost but the latterhad refusedto acceptit, thatthe wifehad beensent by theappellantto Gujranwalafor theconfinementin 1946and allherstridhanajewellery,silk clothesetc. hadbeenleft behind withthe appell_ant at Lucknow. On the basisthat the appellant wasreceivingRs. 560/- per month as salaryfrom Government A B c D E F G H A B c D I F G H KULBHUSHAN v. RAJ KUMAR! (Mitter, I.) .675 and was earning Rs. 800/- per monh by way of privatepractice besidesincomefrom agriculturallands, the wife's claim to main tenance was laid at therateof half the earningsof thehusband inclusive of themaintenanceof. theminorgirl who had to be; educatedand brought up accordingto thehusband'sstatus in life. The suit for maintenance was .actually filed onApril27, 1954 by the wife claiming besides thevalueof theornamentsa decree for arrearsof maintenanceamounting to Rs. 21,600/ and future maintenance at therateof Rs. 600 /- per month. The: claim made in the daughter'ssuit filed on April 5, 1955 was at therateof Rs. 150/- per month. Thetrial courtdecreedthe two suits awarding maintenance· to the wife at Rs. 100/- permonth a~ fromthe date of the decree i.e. 1st June,1957 and at the.rate of Rs. 25/· permonthfor the· daughter negaliving the claimto the. value of the ornaments. The High Courtallowed the claim of the wife to a monthly maintenanceof Rs. 250/- from the dateof theinstitution of the suitsubject ta a limit i.e. thatthe husbandwould not be liable' at any time to paymorethan 25 % of thetotal income as accept ed by the income-taJC authorities by way of maintenance. .Wtth regard to the daughter, theHighCourt fixed the amount·ofmain tenance at Rs. ISO/- per monthsubjectto a similarlimit as in thecaseof the wife, thequantumbeing directed not.;toexceed 15% of the averagemonthlyincome of the father; Therelevantfacts as they emergefrom the oraland documen· taryevidenceadduced by the partiesso far as thesamehave a bearing on thefactorsmentioned in sub,cls. (a) to !d) of s. 23 (2) besides the above may be stated briefly. We havealready notedthat the fatherof the wife was a fairly well-to-do ;penon atthe time when the marria~e hadtakenplace.There was how· ever a serious reversal of hrs fortunes after thepartition ol the· country.Accordingto him no talk of ~y dowry hadtaken place between the partiesbefore the mafriage of his . daughter. Theappellant who had qualifiedhimself in medicinehad gone· to G1.1jranwala from Lucknow for the marriage.The appellant's motherhad seenthe respondentseveral times beforethe nup· tials. · His daughterhad accompaniedthe appellantto Lahore immediatelyafter the marriagebut had come backfrom there· within 10 to 15 days. The respondent'sevidence was that exceptfor very brief periods from October1945 td Merch 1946 she had scarcely livedwith her husbandwho was working in a medical college· atLucknowstarting on a salaryof Rs. 280/-per month. Her SUPREME COURT REPORTS [1971] 2 S.C.R. .evidence wasthatshe wasnot wellreceivedin herhusband's familybecauseher mother-in-law was disappointedwith the .dowry broughtby her. Fromthe oraland documentaryevidence it appearsthat the husband was neveranxiousto havethe companyof thewifeand her attemptsto makethe marriedlife a normalone by going to Lucknowthree times did not havethe desiredeffect.The husbandused to write to herbutstoppeddoing so some two monthsafter the birthof herdaughterin August,1946. She .had written a numberof letters to herhusbandfrom 1946 to 1149 withoutreceivingany reply. On the lastoccasionwhen shehadgoneto thehusbandat Lucknowthe latter was absent fromhomefor fourdaysand she couldnot find out whether he wasattendinghis collegeduring that time.The husbandhad mether at Lucknowwhen she wenttherew;th her daughterbut made himself scarce after the firstday.The husband'sevidence · shows clearlythat he wasdisillusionedabout the wife immediate ly afterthe marriageinasmuch as he found the wife to be a girl of littleeducationwhereas he hadbeengivento understandthat shehadtakena ':Ilaster's degreein arts.He had however tried toreconcilehimself with his lot. His statementeven in exami ·nation-in-chiefdoes not showthat he was at anytimeanxious toreceivehis wifeor to keepher withhim.He hadkept ?Ip ·correspondencewith her till August1946 whenhe received a. registeredletter intimatinghim of thebirthof his daughter. For five yearsthereafter l ,e. from the timeof thepartition of the country,he had no news of his wife andchild. In 1951he re ceivedthe lawyer'snotice. At thetimeof his marriagehe was a residentmedical officer drawinga fixell salary of Rs. 280/ p.m.with free quarters.He becamea lecturerin medicinein December 194:i ona salaryof Rs. 280/- with prospectsof in crement up to Rs. 400/-. In 1953he becamea Readerin medi cine on a scaleof Rs. 500-30-800. Hissalaryat thetimeof his givingevidence in court wasRs. 620/- plus 10% by way of dearnessallowance. jle also hadsomeprivatepracticewhich cameto noinore than Rs. 25,000 to Rs. 30,000/- duringthe ·entireperiodfrom 1945 to 1957.His bankbalancehad never crossedthe limitof Rs. 2,000/-. He had no otherassetsexcept apieceof landin Ambalagiven by wayof compensation for lands ow:ied inPakistan.He hadpurchaseda carfor Rs. "10,000/ andhis monthlyexpensesfor the.upkeepof itincludingthe chaffeur'spay wasRs. 70/- p.m.He hadno ideaof thefinancial statusof hisfather-in-law. A few letterswhich passedbetweenthe husbandand the wifeand exhibited in this caseshowthat fromMay 1945 to •October 1945the husband was writingquite affectionateletters A B c D E F G H A B c D E F G H KULBHUSHAN v. RAJ KUt>iAi<: (Mitter, J.) 6,77· to the wife. There were only two shortletterswritten on the 3rdand4th January1946 writtenin analtogetherdifferent vein. Thecopyof theonlyletterof the wife whichwas exhibitedin this case bearingdate 25thAugust1948 starts off with congra tulationsto thehusbandfor havingreceiveda scholarshipfor goingto Englandas reportedin theTribune. She complained thatthe husbandhad forgottenher althoughshe stillloved him as usual. She mentionedthat the daughterwas alHays asking afterher father. She requestedthe husbandto lookthem up beforegoing abroad. She also sent her respectsto hermother in-law. It will benotedthat the documentaryevidence noted above wasof a periodprior to thelitigation.The wifecomplained in the plaintabout the strainedrelationsbetween herself and her mother-in-lawon thegroundof insufficiencyof dowry,that thoughshe hadgoneto thehusbandand triedto persuade him to do his dutyby herit was of noavail,and thatshe wasliving uponthe charityof herfather.The husbandpleaded in defence thatthe wifehad goneto him in October 1945of herownaccord withoutanytraditionalinvitation and hadstayedwith him for solnetime off and on up to March,1946 adding: "During this periodthe defendant(himself) was constantly under threatto hislifebeingin dangerand usedto takeall sortsof precautionsand it becamefur therclearon accountof the.incompatiabilityof tem peramentthat the defendantwould not be ableto pull onwiththe plaintiff." Takingall thecircumstancesinto considerationand special lythestatusof thefatherof therespondentthat he was giving hera sumof Rs. 250/- p.m.by wayof pocketexpenses,the Civil JudgeLucknow fixed the wife'smaintenanceat Rs. 100/- per monthand thatof thedaughter at Rs. 25/- p.m.The High Courtheld that it was the husbandwho was guilty of desertion andthe wife was entitledto antheamenitiesand comfortswhich wouldhave been hers had they lived together.The HighCourt alsofoundthat the totalincomein theyear1953-54was Rs. 10,099 /- andthatin 1957 he was receivinga salaryof Rs.682/- per monthand that his privat~ practicewhich was of theorderof Rs. 250/- p.m.in 1953-54could be reasonably expected to havegoneup muchhigherin 1957.Accordingly it fixed up a monthlyallowanceto therespondentat Rs. 250/ formaintenancesubject to a limitof 25 % p.m.of thetotal income as acceptedby theIncome-taxauthorities. Before us counselfor theappellantcontendedthat the courtsbelow had ignoredthe factthat on thedeathof thewife's 678 SUPREME COURT REPORTS (1971) 2 S.C.R. father in 1960 she had inheritedhalf the propertiesleft by him and thatevenduring his lifetime she was in receipt' of Rs. 250/ p.m.whichshouldhave been takeninto consideration under cl. (d) of sub-s.(2)of s. 23. We cannot accept this contentior.. A sum of Rs. 250/- p.m. even if given to therespondent re· _gularly was nother incomebut was only a bountyfrom her fatherwhich she might or mightnot continue to get. It is hardly believablethat the father who accordingto his ·own evidence ·was getting no more than Rs. 200/- p.m. out of thepartnership businesscould affordto give Rs. 250/-p.m. to hisdaughter. It wouldappear this statement was false and onlymadewith a view to strengtheninga claimfor therecovery of the amount from the. husband. If itweretrue that the wife had inherited anypropertyfrom her fatherthere certainly was .ample oppor tunityfor thehusbandto have affirmed an affidavitto that effectduring th~ last ten years. Such affidavitcould have been usedevenbefore the HighCourt of Allahabadwhich heard the appeal in 1965. Withregardto sub-cl. ( c)theevidencemakes it quiteclear ·that it was· the husband who didnot wantthe wife to livewith . ~him. Thehusbandnever seemedto have cared for .the daughter bornto him.The fact thata registered letter was sentto him afterthe birthof thedaughter shows thatthere was complete estrangementbetween the parties even before that day. N:e1ther 'in the letterswritten to hernorin the evidenceadduced by the 'husband fa illlY reasondisclosed as to why he tooka dislike to ·the wife unlessit be a factthat he was disappointed in his wife and cherisheda feeling that she was not possessedof cultnreand educationof theexpectedstandard.There does not appear to be anysubstance in the wife'sallegationthat indifferenceof herhusbandstemmedfrom disappointment to the dowry brought by her. Counselfor the appellant also relied on sub-cl.( e) to sub-s. (2) onthegroundthat he had to maintain his agedmother. Unfortunatelyhowever the husband had laidno groundto such son of his motherand 'it appearsfrom the evidence given by a claimin his testimonybefore the court.He was not the only himthat his familyownedsome landswhichwere being· looked after by the mother.In theabsenceof any express statement by the husbandhimself in his examinationno reliancecan be placed on the claim madeon hisbehalf. Reference was madeon behalf of theappellant to the deci· sion of theJudicial Committee in Mt.Ekradeshwari v. Homesh ivar(') wherethe Boardhad to deal with the caseof a widow '(1) A. I. R. [1929] P. C. 128. A B c D E F G H B c D F G KULBHUSHAN v. RAJ. KUMARI (Mitter, J.) 679 of a deceasod in the junior line of the well-known Darbhanga family in Bihar. The trial courthad found in that case that the gross income of the estate was Rs. 1,50,000 per annum, but the net income was only Rs. 33,000 per annum after pay ment of the interest on the heavy encumbrances on the estate in respect of which litigation was pending between the estateand the Maharajaof Darbhanga.In rejecting the claim of the widow to an annual maintenance of Rs. 18,000/- and uphold- ing the concurrent findings of the courts in Indiathat the main tenance allowance should be fixed at Rs. 4,200/- per annum the Board approved of the observations of the Subordinate Judge to the effect that the said sUlli. would enable the lady "to live as far as may be consistently with the position of a widow in some thing like the same degree of comfort and with the same reason able luxury of Jife as she had in herhusband's lifetime" Accord ing t-0 the Board maintenance depended. "'upon a gatheringtogether of all the facts, of the situation, the amount of free estate, the past life of the mamed parties and the families, a survey of the condi tions and necessities and rights of the members, on a rea- sonable view of change of circumstances possibly re quired 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." With respect we are in entire agreement wit)i the above dictum and in our view sub-s.(2) of s. 23 makes no departure from the principles .enunciated by the Board, exeept perhaps to a limited extent envisaged in sub. els. (d) and ( e) of the said sub-section. It was argued before us that inasmuch as the Board allowed as quantum of maintenance 1/Sth of the ne.t income of the estate we should adoptthe same rate.In our view the Board laid down no principlerelated to the proportion of the free income allowable by way of maintenance from the estate. It is to be borne in mind thatthe maintenance claim was by a widow of a Brahmin family although highly placed in liie. Here we have the case of a wife who was neglected by her husband not in affluent circumstances but certainly with means to supporta wife on a reasonable scale of comfort. It was further argued before us that the High Court went wrong in allowing maintenance at 25 % of the income of the appellant ,as found by the Income-tax Department in assessment proceedings H under the Income-tax Act. It was contended that not only should a deduction be made of income-tax but also ofhouserent, elec tricity charges, the expenses for maintaininga par and the con- 680 surREME COURT REPORTS [1971] 2 S.C.R. tributionout of salary to theprovident fund of theappellant.In our view some of these deductions are notallowablefor the pur poseof assessmentof "ftee income" as envisaged by the Judicial Committee.Income-tax would certainly be deductibleand so would contributionsto theprovidentfund whichhave to bemade compulsorily.No deduction is p.:rmissible for paymentof house rentor electricity charges, The expenses formaintainingthe carferthe purpose of appellant'spractice as a physician would be deductibleonly so far as allowed by the income-taxauthorities i.e. in casetheauthoritiesfound that it was necessaryfor the appellant to maintaina car. Thequestion as to thedatefromwhichmaintenancewould beclaimable was also mootedbefore the JudicialCommittee in the above case. TheHighCourthad turneddown the widow's claimto arrearsof maintenlnce. Examiningthe severaldecisions citedbeforeit theBoardtook the view that the widow was en titledto maintenancenot from the date of the decree as found by thecourtsbelow nor fromthe dateof thesuitin April1922 but from1st of January 19 22 in view of thefactthat it was towards theendof theyear 1921 when the widow hadmadeup hermind tostayon at herfather'splace. In this case, as already noted, the claimto maintenance was first laid by a lawyer'snotice of 1951 but the suit was filed in 1954.The trialcourtdecreed maintenancefrom the dateof thedecreein 1957but the High Courtthought fit to allow maintenance from the dateof theinsti tutionof the suit. No exceptioncan be takento the fixing ofthe date of institution ofthesuit as the termirrus a quo forthemain tenanceclaimed by the respondent. A sum of Rs. 250/- permonthfor themaintenanceof the wife of a personoccupyingthe position of theappellant cannot be saidto erron theliberal side. TheHighCourtin ouropinion veryrightly fixed that sum makingit subjectto the limit of 25 percentof the income as found by the Income-taxauthorities. We have no reason to take any different view. Subject to our observationas to thedeterminationof theincomeof theappel- lant,the appealagainstthe wife is dismissed with costs. As regardsthe appealin thecaseof thedaughter,the High Court fixed theamountof monthlymaintenance at Rs. 150 /- till suchtime as she marriesbut so as not to exceed 15% on the averagemonthlyincome of thefather.No ground was shown as A B c D E F G ~o why we shouldmake a vai'iation in the amount fixed in her case. We upholdthe finding of the High Court in this respect.H Therewill be one set of hearing fee. V.P.S. Appeal dismissed Y.•ith modifications. |
