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2002 DIGILAW 299 (KAR)

UMAMAHESHWAR MAHABALESHWAR HEGDE v. SHARADA

2002-04-19

D.V.SHYLENDRA KUMAR, T.S.THAKUR

body2002
( 1 ) IN this appeal filed by the husband against the judgment and decree of Civil Judge (Senior division), Sirsi, the respondent-wife has filed an application for payment of interim maintenance for herself and her minor son. Litigation expenses of Rs. 15,000/- have also been claimed. ( 2 ) THE petition filed by the husband for divorce on the ground of cruelty and desertion has been dismissed by the Court below. During the pendency of the proceedings before the said Court, an amount of Rs. 3,500/- per month had been awarded towards maintenance to the respondent-wife and her minor son. With the filing of the present appeal, the respondent-wife filed an application for payment of maintenance during the pendency of the proceedings in this Court at the rate originally ordered by the Court below. That application has not been heard and disposed of finally although orders regarding payment of the arrears calculated at the rate awarded by the family Court were passed from time to time. l. A.-II was in the meantime filed by the respondent-wife for a suitable enhancement in the amount of maintenance from Rs. 3,500/awarded by the Trial Court to Rs. 15,000/- per month. ' Litigation expenses of Rs, 15,000/- were also as stated earlier demanded in the said application. The affidavit accompanying the application inter alia states that the appellant is working as a Training Manager in M/s. Wipro systems Company and is earning Rs. 60,000/- to Rs. 70,000/- per month. A furnished house and a car has been according to the affidavit provided by the company to him. The appellant is also according to the affidavit of the wife giving private tuition at home to students and making money out of the same. In addition, he has an income of more than Rs. 2,10,000/- from landed property owned by him. His financial condition, therefore, is sound enough to enable him to spare a sum of Rs. 15,000/- towards maintenance of the respondent-wife and her minor son. ( 3 ) IN the objections filed by the appellant-husband to the above application, the allegation that the wife needs a sum of Rs. 15,000/- towards maintenance per month has been denied. It is also stated that the appellant is not earning Rs. 60,000/- to Rs. 70,000/- as alleged by the wife. The allegation that the husband is earning Rs. 2,10,000/- from landed property has also been denied. 15,000/- towards maintenance per month has been denied. It is also stated that the appellant is not earning Rs. 60,000/- to Rs. 70,000/- as alleged by the wife. The allegation that the husband is earning Rs. 2,10,000/- from landed property has also been denied. It is stated that the rate of arecanut has gone down considerably with the result there is no income from landed property. The affidavit goes on to state that out of the salary drawn by the appellant, he is spending substantial amount towards food and clothing apart from Rs. 1,000/being given by him to his aged mother for her treatment, The application made by the wife is not according to the objections filed by the appellant is not maintainable and deserves to be dismissed. ( 4 ) WHEN the application came up for hearing before us on 16th of April, 2002, we noticed that although the appellant had in the objections filed by him denied that he was drawing nearly Rs. 70,000/- per month as salary, yet he had not indicated his gross emoluments and the perks which the employer company had provided to him. A direction was, therefore, issued to the appellant to remain present in person and to file a certificate indicating his gross emoluments as also the perks being enjoyed by him. That direction has not been complied with nor has any certificate indicating the gross emoluments drawn by the appellant been filed as directed. Mr. Hasyagar, counsel for the appellant submitted that he was unable to communicate the order to the appellant although the appellant's place of work and residence is in Bangalore City only. In that view, therefore, we had to hear the application without any evidence contradicting the version given by the respondent-wife that the appellant was earning Rs. 60,000/- to Rs. 70,000/- per month from the salary being paid to him by one of the leading software companies , in this country. ( 5 ) ON the question of the income of the appellant, we need only add that although the appellant had an opportunity to disclose his real income from the salary, he has not chosen to do so either in the objections filed by him or in the form of any other material. Despite a direction issued in that regard by us. Despite a direction issued in that regard by us. Since the appellant has withhold the material that could disclose his true income, we are inclined to draw an adverse inference that if the said material had been produced it would have gone against him. The income of the appellant can, therefore, be said to be anything between Rs. 60,000/- to Rs. 70,000/- per month as alleged by the respondent-wife. ( 6 ) IN addition to the income from the salary, the appellant is also receiving income from his landed property. The order passed by the Trial Court has noticed that he owns five acres of agricultural land partly covered by arecanut garden and partly covered by a coconut garden. The income from the said gardens was assessed by the Trial Court at Rs. 2,10,000/- per annum. Although according to the appellant, the income has gone down because of the fall in the market price of arecanut, no material in support of that allegation has been produced. We are, therefore, inclined to believe that the appellant's income from the landed property should be in the neighbourhood of Rs. 20,000/- per month. All told, the appellant's income exceeds Rs. 80,000/per month. An amount of Rs. 10,000/- towards maintenance of the respondent-wife and her son, therefore, appears to be perfectly justified. ( 7 ) MR. Hasyagar however argued that the Trial Court having considered the question of maintenance and having fixed the same at Rs. 3,500/-, there was no justification for directing any enhancement. He even suggested that this Court had no power to increase the amount awarded by the Trial Court. We, however see no merit in that contention. The order passed by the Trial court would hold good only during the pendency of the proceedings before it. The income of the appellant during the period the proceedings were pending before the Trial Court was in the neighbourhood of Rs. 10,000/- or so per month apart from income from the agricultural land. That income has now gone up substantially. Similarly, the cost of living has also gone up. We, therefore, see no reason why the wife and the son born out of the wedlock should continue to suffer in penury nor do we see any merit in the contention that this Court cannot make a suitable alteration in the amount of maintenance even when there are good reasons for doing so. We, therefore, see no reason why the wife and the son born out of the wedlock should continue to suffer in penury nor do we see any merit in the contention that this Court cannot make a suitable alteration in the amount of maintenance even when there are good reasons for doing so. ( 8 ) MR. Hasyagar next argued that the appeal could be disposed of at an early date. This Court had at one stage directed that the appeal may itself be posted for final hearing. But because of one reason or the other, the matter could not be finally heard for disposal. The intervening summer vacation would make it difficult for this Court to take up the matter for hearing for another two months or so. We, therefore, see no reason why the application for maintenance cannot be considered and appropriate orders passed on the same. ( 9 ) IT was next argued by learned Counsel for the appellant that maintenance for the child was not permissible Under Section 24 of the Hindu Marriage Act. There is indeed no doubt about the correctness of that proposition. Section 26 of the Hindu Marriage Act however in unequivocal terms empowers the Court to pass interim orders from time to time as regards custody, maintenance and education of the children. That power is wide enough to be invoked in appropriate cases for awarding maintenance to the child where the child and the mother with whom he is staying are incapable of maintaining themselves. The decisions relied upon by Mr. Hasyagar to the effect that Section 24 has no application to claims for maintenance by children, therefore, do not lend any assistance to him. The fact that the present application purports to be one Under Section 24 only does not in our opinion make any difference as the substance of the application and the source of power is what is important and not the label given to an application. ( 10 ) IN the totality of the above circumstances, therefore, we allow. A.-II and direct the applicants to deposit in this Court or to pay directly to the respondent-wife maintenance at the rate of Rs. 10,000/- per month with effect from the date of the said application. e. , 16th of october, 2001 onwards. ( 10 ) IN the totality of the above circumstances, therefore, we allow. A.-II and direct the applicants to deposit in this Court or to pay directly to the respondent-wife maintenance at the rate of Rs. 10,000/- per month with effect from the date of the said application. e. , 16th of october, 2001 onwards. ( 11 ) WE further direct the appellant to deposit in this Court or directly pay to the respondent-wife a sum of Rs. 10,000/- towards litigation expenses in connection with the present appeal. The arrears of maintenance payable at the rate mentioned above less the amount already paid shall be deposited by the appellant within six weeks.