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1983 DIGILAW 133 (GUJ)

Shardaben Sitaram Patel v. Patel Ramjibhai Bhagwanbhai

1983-07-20

A.P.RAVANI

body1983
JUDGMENT : A.P. Ravani, J. This revision application has been preferred by the original opponent wife in H. M. Petition No. 8 of 1981 of the court of Civil Judge (S. D.), Mehsana. The said petition was filed by the opponent herein (husband) praying that the decree of divorce be passed in his favour on the ground that the petitioner-wife-original opponent had deserted his society without any reasonable cause. It appears that the suit was filed sometime in January 1981. The petitioner-wife appeared in the petition and resisted the same and also filed an application Exh. 6 on February 22, 1981 under section 24 of the Hindu Marriage Act and prayed that the opponent-husband should he directed to pay maintenance at the rate of Rs.500 per month and also should be directed to pay Rs. 1,000 to meet with the cost of litigation. In the application the petitioner-wife stated that she had no independent source of income and that she was staying with her brother and mother. On the other hand, she stated, the opponent-husband had considerable income and he was earning about 1,000 per month and that his rental income was Rs. 40,000 per year and his income from agriculture was to the tune of Rs.15,000 per year. The petitioner-wife filed affidavit in support of the aforesaid allegations. 2. The application was resisted by the opponent-husband. The opponent-husband inter alia submitted that his income was only to the extent of Rs. 1 5,000 per year by way of rent from landed property. He also contended that the petitioner-wife was earning Rs,300 to Rs.350 per month from tailoring work. The trial Court did not believe the version of the opponent-husband that the petitioner-wife was earning Rs. 300 to Rs 350 per month or that she was earning anything at all. The trial Court also did not believe the version of the opponent-husband that his income was only Rs. 1,500 per year by way of rent. Therefore the trial court held that the petitioner-wife had no independent income sufficient to maintain herself and to meet with the necessary expenses of the litigation. Therefore the trial court held that the petitioner-wife was entitled to claim maintenance and was also entitled to claim amount of expenses for litigation. 1,500 per year by way of rent. Therefore the trial court held that the petitioner-wife had no independent income sufficient to maintain herself and to meet with the necessary expenses of the litigation. Therefore the trial court held that the petitioner-wife was entitled to claim maintenance and was also entitled to claim amount of expenses for litigation. However, the trial court ordered that the opponent-husband should pay Rs-100 per month by way of maintenance pendente lite with effect from February 23, 1981 and should pay Rs. 250 towards the cost of litigation to the petitioner-wife. The trial court passed this order on July 18, 1981. It is this order which has been challenged in this revision application by the petitioner-wife praying that the amount awarded should he enhanced. 3. It is the allegation of the petitioner-wife that the opponent-husband is staying in America and he is earning about 1,000 per month. It is also alleged that the opponent-husband owns 10 Vighas of agricultural land. The trial court has not believed that the income of the opponent-husband is only Rs. 1,500 per year. Once the trial court has not believed this version of the opponent-husband, it is not understood as to on what basis the trial court arrived at a figure of Rs. 100 per month for awarding maintenance to the petitioner-wife. The trial court has not taken into consideration the following two important aspects : 1. The opponent-husband could go to America and do business there and that even according to the admission of the opponent-husband, the rental income from his property is Rs.1,500 per year." A person who could go to America and who owns this much property must be having other income and his status in the society (where the status is measured by ones' possession and ownership of property) would he very high. The parties belong to the Patel community and they appear to be hailing from reasonably higher strata of the society. It does appear that the opponent-husband is a man of means. In this view of the matter, the maintenance amount awarded by the trial court requires to be enhanced. 4. The parties belong to the Patel community and they appear to be hailing from reasonably higher strata of the society. It does appear that the opponent-husband is a man of means. In this view of the matter, the maintenance amount awarded by the trial court requires to be enhanced. 4. Counsel for the opponent-husband submitted that in view of the finding given by the trial court that there was no further affidavit, filed by the opponent-husband, of any other person who could have got the clothes tailored through the petitioner-wife, the opponent-husband should have been given any opportunity to lead evidence on this point and the matter should be remanded to the trial court and if the matter is remanded to the trial court, both the sides will have opportunity to lead proper and further evidence as regards their respective income and resources. However, this contention of the counsel for the opponent-husband cannot be accepted in view of the fact that the application for the interim maintenance has been decided on the basis of the affidavits filed by the respective parties. It was not prayed before the trial court by the opponent- husband that he wanted to lead further evidence. In this view of the matter this contention fails. 5. Counsel for the opponent-husband further contended that no affidavit- in-rejoinder has been filed by the petitioner-wife and therefore her say regarding her earning should not be accepted. There is no substance in this contention also in view of the fact that the affidavit filed by the petitioner-wife is held to be believable by the trial court and I have also no reason to differ with the reasoning adopted by the court. The question in this revision application is only with regard to the quantum of maintenance to be awarded. This has to be awarded by keeping in mind the status of the opponent-husband in the society and his resources and income. Having regard to all the facts and circumstances of the ease, it would be quite reasonable to direct the opponent-husband to pay Rs. 400 per month by way of maintenance instead of Rs.100 per month awarded by the trial court. Further in these days of inflation it will be quite reasonable to direct the opponent-husband to pay Rs.750 towards the cost of litigation instead of Rs. 250 awarded by the trial court. 6. 400 per month by way of maintenance instead of Rs.100 per month awarded by the trial court. Further in these days of inflation it will be quite reasonable to direct the opponent-husband to pay Rs.750 towards the cost of litigation instead of Rs. 250 awarded by the trial court. 6. In the result this revision application is allowed and the order passed by the trial court is modified to the extent that the opponent-husband instead of Rs.100 awarded by trial court is directed to pay Rs.400 per month instead of Rs.100 awarded by trial court by way of maintenance pendente lite with effect from February 23, 1981 and he is also directed to pay Rs.750 instead of Rs 250 awarded by the trial court towards the cost of litigation. The opponent-husband is directed to pay the difference of arrears within a period of three months from today and to go on depositing in the trial court the amount of maintenance regularly on or before 10th of the every month failing which the petitioner-wife will be entitled to execute the order with the help of the court. Rule made absolute to the aforesaid extent with no order as to costs as far as this revision application is concerned. Revision allowed.