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2006 DIGILAW 1766 (RAJ)

UMED SINGH v. JYOTI

2006-05-19

R.P.VYAS, RAJESH BALIA

body2006
Judgment R. P. VYAS, J. ( 1 ) THIS miscellaneous appeal is directed against the judgment and decree dated October 6, 2004, passed by the Judge, Family court, Jodhpur, whereby the application moved by the wiferespondent under Section 18 of the Hindu Adoptions and maintenance Act, 1956 (hereinafter referred to as the Act, 1956), against the husband-appellant has been allowed and he has been ordered to pay a sum of Rs. 1200/- per month to the wife-respondent from the date of filing the application, i. e. , january 17, 1998. ( 2 ) BRIEF facts, giving rise to the instant appeal, are that Smt. Jyoti (plaintiff before the trial Court and respondent before this court) filed an application under Section 18 of the Act, 1956 against Shri Umed Singh Inda (defendant before the trial Court and appellant before this Court) in the Family Court, Jodhpur, claiming maintenance @ Rs. 2000/- per month. It was averred in the plaint that their marriage was solemnized on 28. 11. 1993, at jodhpur, according to the Hindu customs and usage. After the marriage, they lived together as a husband and wife. Thereafter, the appellant deserted her without any cause. It was also averred in the plaint that the wife was treated with cruelty and was given beating by the appellant and his other family members as her parents failed to satisfy the demand of dowry. ( 3 ) ON 25. 12. 1994, Smt. Jyoti was turned out from the matrimonial house by the appellant and since then, she is residing with her parents at Jodhpur. It was averred in the plaint that the appellant has contracted a second marriage with the daughter of Bahadur Singh in January, 1995, without getting a decree of divorce. Smt. Jyoti the wife of appellant has no source of income. The appellant is earning Rupees eight-nine thousand per month. He is also having an earning of Rupees five six thousand from the source of Private Dispensary and agricultural land. Therefore, a sum of Rs. 2000/- per month was claimed as maintenance commensurating with status and income of her husband. ( 4 ) THE husband-appellant resisted the suit of the wiferespondent, denying all the allegations alleged in the plaint. He stated that the behaviour and conduct of the wife respondent, immediately after the marriage was intolerable. She was stickler and always used to stickle with the appellant without any cause. ( 4 ) THE husband-appellant resisted the suit of the wiferespondent, denying all the allegations alleged in the plaint. He stated that the behaviour and conduct of the wife respondent, immediately after the marriage was intolerable. She was stickler and always used to stickle with the appellant without any cause. She left the house many a times without any reason. He also denied of contacting a second marriage. In the written statement, he also stated that he is paying Rs. 500/- per month to the wife as maintenance fixed by the Family Court with mutual consent of the parties. It was also stated on behalf of the husband that the wife is earning a sum of Rs. 1,000/- per month by tailoring at her paternal house. ( 5 ) ON the basis of the pleadings of the parties, three issues were framed by the Family Court, Jodhpur that whether, after the marriage, the wife was treated with cruelty, as averred in the plaint and she was not paid maintenance allowance; and whether the wife-respondent is entitled to claim maintenance from the husband-appellant. If so, to what extent and the relief, if any. ( 6 ) IN support of her claim, the wife-respondent examined five witnesses, including herself and the husband-appellant, in order to substantiate his case, examined himself and two other witnesses. ( 7 ) AFTER hearing the final submissions of the parties and examining the evidence produced on record, the learned Judge, family Court, Jodhpur, passed judgment and decree dated october 6, 2004, in favour wife-respondent, as mentioned above. ( 8 ) BEING aggrieved by the judgment and decree dated october 6, 2004, the husband-appellant has filed the instant appeal. It is submitted by the learned counsel for the appellant that while passing the impugned judgment and decree against the appellant, the learned trial Court has acted erroneously and contrary to the question of facts and law. ( 9 ) IT is further submitted by the learned counsel for the appellant that while deciding issue No. 1 in favour of the respondent-wife, solely on the basis of the statements given by pws 1, 2 and 5, the learned trial Court also acted contrary to the provisions of the law. ( 10 ) IT is also submitted by the learned counsel for the appellant that the respondent-wife is getting Rs. ( 10 ) IT is also submitted by the learned counsel for the appellant that the respondent-wife is getting Rs. 500/- per month as maintenance fixed by the trial Court with the mutual consent of the parties, so, according to the appellant, this amount is sufficient to carry on her livelihood. Apart from that, the wife has miserably failed to prove the allegation of having contacted second marriage by the husband (appellant) Thus, it is submitted that the finding given by the learned trial Court is perverse and unreasonable, so the impugned judgment and decree passed by the trial Court may be quashed and set aside. ( 11 ) ON the other hand, it is submitted by the learned counsel for the respondent that the impugned judgment and decree passed by the trial Court is perfectly justified and is based on sound reasonings and appreciation of the evidence on record. The trial Court has decided all the issues in favour of the respondent-wife with all objective considerations and after subjective satisfaction. Therefore, the finding given by the trial court cannot be said to be erroneous or contrary to the provisions of law. ( 12 ) IT is further submitted by the learned counsel for the respondent that the learned trial Court has given a correct finding against the appellant that since the husband-appellant was harassing his wife and making a demand for dowry, she was compelled to leave the matrimonial house and file a case against the appellant under Sections 498a and 494 of the Code of Criminal Procedure. ( 13 ) IT is also submitted by the learned counsel for the respondent that the learned trial Court has given finding that the appellant (husband) was treating respondent (wife ) with cruelty , therefore, it was not possible for her to live in the matrimonial house and she was compelled to live with her parents. ( 14 ) ACCORDING to the learned counsel, Smt. Jyoti has stated in her statement that the appellant (husband) is running a Dispensary in village Nandvan. Apart from that, he is also having an income from agricultural land. Similarly, PW 3 Babulal has stated that he has seen Ummed Singh (appellant) working on the dispensary. PW 4 Madan Mohan Joshi and PW 5 Panney Singh have given the statements on the same lines. Apart from that, he is also having an income from agricultural land. Similarly, PW 3 Babulal has stated that he has seen Ummed Singh (appellant) working on the dispensary. PW 4 Madan Mohan Joshi and PW 5 Panney Singh have given the statements on the same lines. Ummed Singh (appellant) has himself admitted in the cross-examination that he is receiving the rent of two shops Rs. 500/- per month. Apart from that, he has also admitted during the course of crossexamination, that he is receiving Rs. 1800/- per month by working on the medical shop. Thus, he himself has admitted that in the year, 2002, he had been earning Rs. 1800/- per month from medical shop and Rs. 500/- per month as rent of both the shops. In this view of the matter, the learned counsel for the respondent contended that the salary of the appellant as well as rent must have increased by now. Though, NAW 2 neelam has stated that the appellant is an unemployed man and NAW 3 Mahendra Singh has stated that the appellant (husband) used to work on his kirana shop and he used to make a payment of Rs. 1000/- per month, for which he used to maintain a copy (record), but the copy (record) has not been produced by him. However, it is clear from the statement of the appellant (husband) himself that he has been getting Rs. 1800/-per month from the medical shop. In that view of the matter, the learned trial Court has rightly held NAW 3 Mahendra Singh Puri as a cooked up witness. ( 15 ) HEARD learned counsel for the parties and examined, evaluated and scrutinized the material available on record. The learned trial Court has rightly given a categorical finding that in the year, 2002, the appellant (husband) was earning, in all, rs. 2300/- per month. On the basis of the statement of PW 2 soylen Kumar, the trial Court has given a finding that respondent (wife) also does carry on some domestic work (jaaru, poche, bartan) and earns Rs. 400-500/- per month. ( 16 ) THUS, looking to the monthly earning of the appellant (husband)and keeping in view the fact that the respondent (wife) is also earning a bit amount, for her livelihood, the trial Court has rightly awarded Rs. 1200/- per month to the respondent (wife)from the date of the application, i. e. , 17. 400-500/- per month. ( 16 ) THUS, looking to the monthly earning of the appellant (husband)and keeping in view the fact that the respondent (wife) is also earning a bit amount, for her livelihood, the trial Court has rightly awarded Rs. 1200/- per month to the respondent (wife)from the date of the application, i. e. , 17. 1. 1998. The contention of the learned counsel for the appellant that the respondent-wife is getting Rs. 500/- per month as maintenance fixed by the trial court with the mutual consent of the parties and this meagre amount, is sufficient for the wife, does not hold good and is not sustainable in the eye of law. 16. It may be mentioned that the appellant (husband) has treated the respondent (wife) with such a cruelty as to cause a reasonable apprehension in her mind that it will be harmful or injurious for her to live with the husband (appellant ). Apart from that, the amount of maintenance is not a punitive in nature. The maintenance allowance should be to aid the wife to live in a similar style as she enjoyed in the matrimonial home. However, there cannot be mathematical exactitude in the matters. But, the court has to take a general view and try to fix the amount which would be, by and large, acceptable to both the parties. The amount of maintenance should not be so low as to make the order meaningless. ( 17 ) IN this case, the wife has established and proved her case that the appellant (husband) has abandoned her without any reasonable cause and without her consent and against her wishes. Apart from that, he has treated the wife with such cruelty to cause a reasonable apprehension in her mind that it will be harmful or injurious to live with appellant. The respondent (wife) has succeeded in establishing a justifiable cause for living separately from her matrimonial home under compelling circumstances. It may be pointed out here that the respondent (wife) has levelled the allegation against the appellant of having contacted second marriage in January, 1995 with one Tara Kanwar, daughter of Bahadur Singh Champawat, but she has not been able to establish, prove and substantiate this allegation, by any cogent and convincing evidence. It may be pointed out here that the respondent (wife) has levelled the allegation against the appellant of having contacted second marriage in January, 1995 with one Tara Kanwar, daughter of Bahadur Singh Champawat, but she has not been able to establish, prove and substantiate this allegation, by any cogent and convincing evidence. However, it is established and proved beyond reasonable doubt that in the year, 2002, the appellant (husband), in all, was earning at least rs. 2300/- per month. This amount must have increased by now. ( 18 ) KEEPING in view all the facts and circumstances, award of rs. 1200/- passed as maintenance to respondent wife is not excessive to call for interference at this stage. Consequently, the appeal fails and the same is, therefore, dismissed. It may be pointed out that in this appeal, on 17. 11. 2005, notice was issued to the respondent (wife), subject to the condition of depositing a sum of Rs. 5,000/- by the appellant to meet the provisional cost of litigation. The amount was ordered to be deposited with the Deputy Registrar (Judicial)of this Court within 15 days, which was deposited through Cash challan No. 312 dated 1. 12. 2005 with the State Bank of India and a xerox copy of the challan was produced as a proof of the deposit and was placed on record. The aforesaid amount is now, ordered to be released in favour of the respondent (wife) as a cost of litigation to be provided to respondent. The appeal stands dismissed, as indicated above.