Wife Hid Income; Came to court with unclean hands. No Maintenance

Jammu And Kashmir High Court

JUSTICE Dhiraj Singh Thakur

Sujata Rajput Vs. Rajesh Baru On 13 December 2013

Law Point:
No details of income given by petitioner-wife with which her expenses could be compared by Court to determine her rights under Section 30 of Act — Looking to disparity in income between petitioner and respondent, petitioner ought to have produced evidence to enable Court to conclude that petitioner’s income not sufficient for supporting herself — Court below committed no illegality in passing impugned order.

JUDGEMENT

1. The present revision petition is preferred against the order dated 14.10.2010, passed by the learned Additional District Judge, Matrimonial Cases, Jammu, by virtue of which the petition/application filed by the petitioner herein under Section 30 of the Hindu Marriage Act (hereinafter called ‘the Act’) stands dismissed.

2. Following are the brief facts in the light of which the present controversy has arisen:

A petition under Section 9 of the Act came to be filed by the respondent herein for restitution of conjugal rights claiming that the petitioner herein was his legally wedded wife.

3. In response to the aforesaid petition under Section 9 of the Act, objections were filed by the petitioner herein wherein it was stated that the petition was liable to be dismissed as the Court, cannot in law, acknowledge a marriage solemnized under threat and pressure.

4. During the pendency of the aforementioned proceedings, an application came to be filed by the petitioner wife also under Section 30 of the Act for grant of maintenance pendente lite and expenses of proceedings. The said application came to be rejected by virtue of the order impugned by the Court below on the ground that no evidence, at all, had been led by the applicant-petitioner, who would have enabled the Court to come to a conclusion regarding entitlement of the petitioner in terms of Section 30 of the Act. It is this order which is challenged in the present petition.

5. Heard learned Counsel for the parties.

The crux of the argument of the Counsel for the petitioner was that the application under Section 30 of the Act was supported by an affidavit, which was sufficient to enable the Court below to pass an order for maintenance pendente lite as also for granting expenses of proceedings and that it was not a case where no evidence was on record.

6. From a perusal of the order impugned, it becomes clear that after filing of the application under Section 30 of the Act, which was supported by an affidavit, objections were filed by the respondent herein. It also appears that despite a number of opportunities given to the petitioner in that regard, evidence was not led and finally, the right to lead evidence in support of the aforementioned petition came to be closed upon the statement of the petitioner that she would have no objection if the evidence is closed. In those circumstances, the matter came to be posted for evidence of the respondent who also made a statement that he did not want to produce any evidence. The matter was, accordingly, posted for arguments.

7. The first issue that arises for consideration is as to whether the Court below was obliged to pass an order granting maintenance on the basis of the averments made in the petition/application under Section 30 of the Act, treating the averments therein as evidence only because the averments made in the application were supported by an affidavit.

8. The second issue is as to whether the petitioner was, at all, entitled to receive maintenance in view of her own earning capacity which was far better than that of the respondent-husband.

9. With a view to understand the first issue, it has to be borne in mind that there is a difference between the pleadings and proof. Any pleadings which are not proved, are invisible to the judicial eye unless they are admitted for which no proof at all is necessary and a judgment can follow in terms of Order 12 Rule 6 of the CPC. However, where the pleadings are not admitted as it was in the present case, they were required to be proved.

10. According to the amended provisions of the CPC, evidence was supposed to be led by affidavits in terms of Order 18 Rule 4 with copy supplied to the other side. In the present case, that opportunity was, in fact, given to the parties. Having failed to avail of that right, it was not open to the petitioner to claim a benefit simply on the basis of averments made in the petition under Section 30 of the Act, which averments were not proved in terms of the Evidence Act. The mere fact that the application under Section 30 of the Act was supported by an affidavit was, therefore, totally inconsequential. Pleadings cannot assume the shape of evidence in the absence of any specific order in that regard by the Court with due notice to the other party.

11. During the course of hearing of the present petition, both the parties were asked to state their income as it is admitted that both of them are employed. Respondent produced an income certificate which reflects that the gross salary received by the respondent in the year 2010 was approximately Rs. 10,000 per month as against the gross salary of Rs. 35,740 per month received by the petitioner for the year 2013.

12. Although, the salary statement of the respondent is of the year 2010, this disparity in the income is too conspicuous to be ignored. The powers exercisable by the Court in terms of Section 30 of the Act for ordering maintenance pendente lite has to be exercised only when it appears to the Court that the wife or the husband, as the case may be, has no independent income sufficient for her or his support and the necessary expenses of the proceedings. It is only in those circumstances that the Court on order maintenance pendente lite or the expenses to be paid. While doing this, due regard has to be kept to the petitioner’s own income as also the income of the respondent.

13. Looking to the disparity in income between the petitioner and that of the respondent, the petitioner ought to have produced evidence which would provide conviction to the Court below to come to a conclusion that the petitioner’s income was not sufficient for supporting herself and for taking care of the expenses on the proceedings under the Act. In the present case, all that is stated is that the petitioner does not possess sufficient resources to defend the proceedings and that she had hired the services of an Advocate, who has settled the Counsel fee at Rs. 35,000. Apart from this, the petitioner had prayed for Rs. 5,000 per month to defray the necessary expenses of the litigation. It was also stated in the petition that the petitioner was serving in the Institute of Music and Fine Arts and was handicapped to meet the litigation expenses and to pay the Counsel fee. It was alleged that the petitioner was putting up on a rented accommodation and paying Rs. 3000 per month in this regard and also bearing other expenses to look after her ailing mother.

14. However, no details of income had been given by the petitioner with which her expenses could be compared by the Court with a view to determine her rights under Section 30 of the Act. Material averments were, thus missing in the petition and in the absence of any evidence, subject to right of cross-examination by the respondent, it would have been impossible for the Court below to determine the rights of the petitioner in the petition/application under the aforementioned section.

15. In my opinion, the Court below appears to have committed no illegality or perversity in passing the order impugned in the facts and circumstances of the case.

16. This petition is, accordingly, found to be without merit and is dismissed.

DISCLAIMER: The above judgement is posted for informational purpose ONLY. Printout/ Copy from this website are not admissible citation in the Court of Law. For a court admissible copy contact your advocate.

You may contact me for consultation or advice by visiting Contact Us