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PETITIONER: KULBHUSHAN KUMAR

       Vs.

RESPONDENT: RAJ KUMARI & ANR.

DATE OF JUDGMENT: 20/10/1970

BENCH: MITTER, G.K. BENCH: MITTER, G.K. RAY, A.N.

CITATION:  1971 AIR  234            1971 SCR  (2) 672  1970 SCC  (3) 129

ACT: Hindu   Adoptions   and  Maintenance  Act  (78   of   1956), s. 23 (2) --Amounts received by wife Monthly from, father-If could  be  taken into account  in  determining  maintenance- Husband’s   ’free  income’,     how   determined-Amount   of maintenance and date from which payable.

HEADNOTE:  The appellant and the respondent were married in May  1945. Sometime  after  the marriage the husband did not  want  the wife  to live with him, and there was complete  estrangement between  them.  A daughter was born to them in August  1946. In  1951, the respondent sent a registered  letter  claiming maintenance, for herself and the daughter, and in 1954,  she filed the suit for maintenance. The  High Court in appeal, fixed the maintenance payable  to the  respondent, under s. 23(2) of the Hindu  Adoptions  and Maintenance Act, 1956, at Rs. 250 subject to a limit of  25% per  mensem  of the income as determined by  the  income-tax authorities, and Rs. 150 as the maintenance of the daughter. The  High  Court, in doing so, took into account  the  facts that  the  appellant was a Reader in  Medicine  receiving  a salary of about Rs. 700 and more than Rs. 250 per mensem  by way of private practice.  The date of the institution of the suit  was fixed by the High Court as terminus a quo for  the payment of the maintenance to the respondent. In  appeal  to  this Court on the  question  of  maintenance payable to the wife. HELD  : (1) Even if the wife received some amounts from  her father  regularly it was only a bounty and not  her  income. Therefore  it  could  not be taken  into  account  under  s. 23(2)(d)   of   the  Act  in  determining  the   amount   of 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  each  case and the  Judicial  Committee,  in  Mt. 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  the  circumstances of this case, no exception  could  be

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taken  to the amount fixed by the High Court as well as  the date.  from  which the maintenance would be  claimable.   In determining  the  limit at 25% of the ’free income’  of  the appellant,  amounts payable towards income  tax,  compulsory provident  fund,  and expenses for maintaining the  car  for professional   purposes  as  allowed  by  the   income   tax authorities,  should  be  allowed  as  deductions  from  the husband’s total income. [680 A-C, F-G] Mt.   Ekradeshwari  v.  Homeshwar,  A.I.R.  1929  P.C.   128 applied.               673

JUDGMENT: CIVIL  APPELLATE JURISDICTION : Civil Appeals Nos. 2564  and 2589 of 1966. Appeals from the judgments and decrees dated March 10,  1965 of  the Allahabad High Court, Lucknow Bench in  First  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 from  two  judgments  and decrees of the High Court of Allahabad granting  maintenance to the wife and daughter of the common appellant in both the appeals. Counsel  for the appellant did not contest the right of  the respondents to claim maintenance.  His argument was directed only  against  the quantum fixed in both the  cases  on  the ground  that the principles laid down in s. 2 3 (2)  of  the Hindu  Adoptions  and  Maintenance Act, 1956  had  not  been followed  by  the High Court.  The Act had come  into  force before  the  date of the trial court’s judgment on  the  1st June 1957 and it is the common case of the parties that  the Act governs the rights of the parties herein.  The  relevant portion of s. 23 runs as follows :-               "  ( 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  con-               siderations set out in sub-section (2) or sub-               section (3), as the  case  may be, as  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 parties;               (b)   the reasonable wants of the claimant;               (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;               674               (e)   the   number  of  persons  entitled   to               maintenance under this Act. As  it  was  contended  on  behalf  of  the  appellant  that practically all the provisions of the sub-clauses of  sub-s. (2)  were disregarded by the High Court, it is necessary  to

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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  in  the first  appeal  took place in May 1945 at Gujranwala  now  in Pakistan.   The  father-in-law  of the  appellant  ’who  was examined  as a witness in the maintenance suit filed by  the respondent gave evidence to the effect that he had worked as an agent of the Standard Vacuum Oil Company with agencies at Gujranwala  and  neighboring districts and that  his  annual income  at  the date of the marriage of the  respondent  was 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  at  Premonitory Refugee  Camp  but  could not  engage  himself  actively  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  had  a Rs. 0-2-6 share; he  had  never  seen  the accounts of the business and was content to accept  whatever was  given to him by his partners which varied  between  Rs. 50/-  and  Rs.  200/- per month.  He had to  leave  all  his property  in Pakistan and had not received any  compensation in  lieu thereof at the date when he was examined in  court in March 1956. There  is  some dispute about the period  during  which  the parties  in the first appeal had lived together as  man  and 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  wife  sent  a  layer’s   notice   claiming maintenance  on  July  28, 1951 and filed  a  suit  for  the purpose  adding a claim to ornaments which according to  her 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 but  the latter had refused to accept it, that the wife had been sent by  the appellant to Gujranwala for the confinement in  1946 and all her stridhana jewellery, silk clothes etc. had  been 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 month  by  way  of  private practice: besides income from agricultural lands, the wife’s claim  to  maintenance  was laid at the  rate  of  half  the earnings of the husband inclusive of the maintenance of  the 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  April  27, 1954 by the wife claiming besides the value of the ornaments a  decree  for  arrears  of  maintenance  amounting  to  Rs. 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  of  the 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 would  not

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be  liable  at any time to pay more than 25%  of  the  total income  as accepted by the income-tax authorities by way  of maintenance.   With regard to the daughter, the  High  Court fixed  the  amount  of maintenance at Rs.  1501-  per  month subject  to a similar limit as in the case of the wife,  the quantum  being  directed not to exceed 15%  of  the  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.  We  have 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-  before  the marriage  of his daughter.  The appellant who had  qualified himself  in medicine had goneJr to Gujranwala  from  Lucknow for  the  marriage.   The appellant’s mother  had  seen  the 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 for  very  brief periods  from  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 family  because her mother-in-law was disappointed with  the dowry brought by her. From  the oral and documentary evidence it appears that  the husband  was never anxious to have the company of  the  wife and her attempts to make the married life a normal one  by going  to  Lucknow  three times did  not  have  the  desired effect.  The husband used to write to her but stopped  doing so  some  two  months after the birth  of  her  daughter  in August,  1946.  She had written a number of letters  to  her husband  from 1946 to 1949 without receiving any reply.   On the  last  occasion  when she had gone  to  the  husband  at Lucknow  the latter was absent from home for four  days  and she could not find out whether he ’was attending his college during  that time.  The husband had met her at Lucknow  when 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 little  education  whereas he had been given  to  understand that  she  had  taken a master’s degree  in  arts.   He  had however  tried  to  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 keep  her with  him.   He  had kept up correspondence  with  her  till 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  received  the lawyer’s  notice.   At  the 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  at  the time of his ,giving evidence in court was Rs. 620/- plus 10% by  way  of dearness allowance.  He also  had  some  private

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practice  which  came  to no more than  Rs.  25,000  to  Rs. 30,000/-  during the entire period from 1945 to  1957.   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.  He  had 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  of  his father-in-law. A few letters which passed between the husband and the  wife and  exhibited  in  this case show that  from  May  1945  to