Court:MADHYA PRADESH HIGH COURT
Bench: JUSTICE U.L. Bhat
PRAMOD KAPLISH Vs. SMT. ALKA KAPLISH Decided on 3 August 1995
Law Point:
Circumstances — Statement of assessable income produced by revision petitioner — Proved his income increasing over years — Added circumstance of absence of specific denial in counter — Interim maintenance — Only for future and not past — Quantification made by Trial Court — Not perverse — But for the purpose of quantification granting interim maintenance — Should be governed by averments in plaint, written statement and documentary/oral evidence — Assurance by parties to co-operate with lower Court — Lower Court directed to dispose of suit expeditiously.
JUDGEMENT
Revision petitioner is the husband of the respondent. They were married on 22.1.1980. The husband allegedly deserted the wife on 14.9.1980 She filed a suit on 6.3.91 claiming post maintenance from 14.9.1990 the date of filing of the suit as also future maintenance at the rate of Rs. 10,000/- p.m. It is stated that the husband has filed written statement. The wife also tiled an interlocutory application seeking direction for payment of interim maintenance at the rate of Rs. 5,000/- p.m. till the disposal of the suit. This Court ordered payment of interim maintenance at the rate of Rs. 3,000/- p.m. This order is now being challenged in the present revision.
2. The husband moved for stay in this Court. This Court passed an ex-parte order for maintenance at the rate of Rs. 1,500.00 p.m. until further orders. This interim order continues to be in force.
3. Learned Counsel for the revision petitioner referred me to a large number of decisions. They indicate under what circumstances interim maintenance can be ordered to be paid and the factors to be taken into consideration in quantifying the maintenance. This case is governed by the provisions of Section 18 of the Hindu Adoptions and Maintenance Act, 1956, (for short the Act). According to Sub-section (1). a Hindu wife is entitled to maintenance during her lifetime. Sub-section (2) enumerates the conditions subject to which a Hindu wife shall be entitled to live separately from her husband without forfeiting her claim to maintenance. One of the conditions is where the husband is guilty of desertion. Section 23 of the Act deals with quantification of maintenance. The quantification shall be in the disecretion of the Court. Sub-section (2) requires the Court to have regard to various circumstances referred to therein in the process of quantification. They are :
(a) the position and status of the parties;
(b) the responsable 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 for such property, or from the claimant’s own earning or from any other source, and
(e) the number of persons entitled to maintenance under this Act.
4. In the affidavit in support of the application for interim maintenance, the wife asserted that her husband is a successful businessman, running a cement pipe and tank factory, a stone crushing unit in the name of Kaplish Brothers, a sewerage plant at Shahpur and a transport business by name New Bhopal Transport Co. She also alleged that he has joint family property and that he had sold some of the property sometime previously.
5. The husband filed a counter statement with a one line denial of all the averments contained in the material paragraphs and without traversing specifically each of the statements referred to earlier and without specifically denying any of those averments. The wife, in her affidavit, further stated that his monthly income is around Rs. 2 lacs from various sources. Even in regard to this important averment, the counter did not contain a specific statement, nor did the counter indicate what was his income for the previous year or his average income over all previous years. The wife produced in the lower Court a copy of the income return filed by the husband for the assessment year 1991-1992 showing total income of Rs. 1,11,636/-. The husband produced no documents in rebuttal. Having regard to all these circumstances, the lower Court came to the conclusion that the monthly income of the husband is such that he can be required to pay monthly maintenance of Rs. 3,000/- to the wife.
6. According to the learned Counsel, the lower Court should have considered the average income and not the income for a particular year. Alongwith the revision petition, he has produced a statement of income for various years from 1986 to 1992. The assessed income for these years was said to be Rs. 23,420/- 27,180/-, 39,130/-, 84,429/-, 73,470/- and 1,11,636/- respectively. This statement is not supported by an documents or the assessment orders. Copies or the assessment orders have not been produced even in this Court. The only supporting document is the photo copy of a certificate said to have been issued by Chartered Accountant. It is clear that the revision petitioner who must be in the custody of all the assessment orders of various years, is not prepared to place them before the Court.
7. Even going by the statement has been of assessable income produced in this Court by the revision petitioner, it is clear that his income has been increasing over the years except for a single year. There is the added circumstances of absence of specific denial in the counter filed in the lower Court of the averment regarding sources and income. It has to be remembered that interim maintenance is only for future and not for the past. The parties hail from respectable and affluent families. It is natural to conclude that the parties are accustomed themselves to a reasonable standard of living. Having regard to entirety of circumstances, I am not persuaded to agree that the quantification made by the lower Court is unreasonable or perverse, or is vitiated on account of reliance on irrelevant factors or ignoring relevant factors.
8. However, I would like to make it clear that the quantification made for the purpose of interim maintenance or the quantification made by this Court for the purpose of granting stay cannot furnish any basis for the Trial Court in fixing maintenance, if separate maintenance is to be decreed in disposing of the suit. At that stage, the matter should be governed only by the averments in the plaint, written statement and oral and documentary evidence to be placed by the parties before the Court. Both parties have assured me that they will get ready in the suit and cooperate with the lower Court in disposing of the suit expeditiously. Considering that this is matrimonial action, the lower Court should exert itself in ensuring that the suit is disposed of expeditiously.
9. The revision petition is dismissed but without costs.
Petition dismissed.
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