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Madhya Pradesh High Court · body

2006 DIGILAW 818 (MP)

Manju Raghuvanshi v. Dilip Singh Raghuvanshi

2006-07-06

RAJENDRA MENON

body2006
ORDER 1. The case was taken up for hearing at 11 a.m. and thereafter it was passed over and thereafter taken up for hearing in the second round even then none has appeared for the respondents. Considering the fact that this petition is by a woman claiming maintenance and the case was adjourned on 4.5.2006 when also none appeared for the respondents and is listed for final hearing, again today this Court has no option but to proceed with hearing of the case in the absence of the respondent. 2. Petitioner and respondent Dilip Singh Raghuvanshi were married on 30th May, 1991. However, after the marriage the relationship got strained and it is the case of the petitioner that because of cruelty and the consistent demand for dowry made by the respondent and his family members, petitioner had to go and stay with her parents. On the ground of cruelty, the respondent husband has filed an application Annexure P-1 in the Court of Second Additional District Judge, Guna, in the year 2000 under section 13 of the Hindu Marriage Act seeking desolution of the marriage. Immediately on service of notice petitioner appeared and filed an application claiming maintenance under section 24 of Hindu Marriage Act. The aforesaid application for maintenance has been decided by the impugned order and feeling aggrieved by the meagre amount of maintenance granted to the petitioner in comparison to the earning of the respondent husband, so also being aggrieved by the date from which the maintenance is granted, petitioner has filed this petition for enhancement of the maintenance amount, so also for granting her maintenance from the date when the application under section 24 was filed. 3. Shri B.K. Agrawal, learned counsel representing the petitioner inviting my attention to the application filed under section 24 of the Hindu Marriage Act as contained in Annexure P-2 pointed out that from para three onwards specific particulars were given with regard to earning, property and assets of the respondent, which included his business transaction and it was the case of the petitioner that the annual earning of the respondent husband is Rs.5,26,725/- and accordingly, petitioner claimed maintenance of Rs.21,946/- per month. Accordingly, it is pointed out that even though elaborate detailed applications were filed claiming maintenance, a formal reply was submitted simply denying the averments made in the application. Accordingly, it is pointed out that even though elaborate detailed applications were filed claiming maintenance, a formal reply was submitted simply denying the averments made in the application. Thereafter, evidence were recorded, documents were exhibited and inspite of the fact that detailed materials were produced to show that the respondent was a affluent businessman with large agricultural land, a merge amount of Rs.4,000/- per month has been awarded as maintenance. Taking me through the facts available on record, so also placing reliance on the following judgments, Smt. Jasbir Kaur Sehgal v. District Judge, Dehradun and others [ AIR 1997 SC 3397 ], Smt. Archana Tiwari v. Yogendra Mohan Tiwari [ 1993(2) MPJR 325 ], Sarojbai (Smt.) v. Jai Kumar Jain [ 1994 JLJ 725 (Full Bench)], Nirmala Tiwari v. Shobharam Tiwari [1986(11) MPWN 118] and Chitra Sengupta v. Dhruba Jyoti Sengupta [ AIR 1988 Cal. 98 ], Shri B.K. Agrawal argued that the amount of maintenance is on the lower side and contrary to the well settled principles laid down for grant of maintenance. Shri Agrawal also pointed out that the maintenance should have been granted from the date of filing of the application and the reason given for grant of maintenance from the date of order is unsustainable. Bringing on record the various dates of hearing as contained in Annexure P-16, Shri Agrawal tried to establish that the petitioner had not sought adjournment in the case unnecessarily. The petitioner had sought adjournment only on two occasions whereas on all other occasions the case was adjourned for no cogent reasons which cannot be attributed to the petitioner. Shri Agrawal submitted that the respondent was not coming out with the true facts and if the petitioner was compelled to file applications for summoning of documents like income tax record, revenue records and other material to show the income of the husband, the same cannot be a ground for attributing delay on the petitioner and denying maintenance from the date of application. Accordingly, Shri Agrawal submits that the order passed granting maintenance from the date of order is also unsustainable. The petitioner, according to Shri Agrawal, is entitled to maintenance w.e.f. 4.8.2000 when the application was filed claiming maintenance. 4. In have heard the learned counsel for the petitioner at length and perused the record. 5. Accordingly, Shri Agrawal submits that the order passed granting maintenance from the date of order is also unsustainable. The petitioner, according to Shri Agrawal, is entitled to maintenance w.e.f. 4.8.2000 when the application was filed claiming maintenance. 4. In have heard the learned counsel for the petitioner at length and perused the record. 5. From the averments made by the petitioner so also in the application Anneuxre P-2 filed before the trial Court u/s 24 of the Hindu Marriage Act, it is clear that the petitioner had given various details pertaining to the source of income of respondent so also his assets and earnings from business and agricultural holding. Amongst other, petitioner had given the following particulars with regard to assets, income and other earning of the respondent : (i) The respondent husband is an income tax payee. He is a contractor and has received the following payments from the various Government departments as a contractor: 1998-99 Rs. 67-68 lacs 1997 -98 Morethan Rs. 30 lacs 1996-97 Rs. 9-10 lacs (ii) Respondent owns drilling machine No. MP07/D-1413 costing about Rs.20 lacs which was owned by him till 1.4.1998 and is transferred in Benami manner in favour of his cousin Lalit Kumar. Details of income from the aforesaid drilling machine is liable to be disclosed by the respondent. (iii) Net income @ Rs.500/- per day from bus No. MP08/1851 belonging to the respondent plied on Fatehgarh-Sironj route. (iv) Jeep No. MP08/C-2332 belonging to the respondent upto 19.3.1998 which is again transferred in Benami manner. Income from this jeep is liable to be disclosed by the respondent. (v) Income from triple stories building MIG 156, near Nehru Nagar Chauraha, Bhopal. Rental income Rs.36,000/- per annum. (vi) Plot ademeasuring 5280. sq. ft. on A.B. Road at village Kusmoda, District Guna within the municipal limits of Guna. (vii) Irrigated agricultural land in area 6.678 hectares in village Bharroli, Tehsil Ishagarh. Net income Rs.66,700/- per annum. (viii) Half share in an irrigated agricultural land in area 4.389 hectare in village Sarkhandi, District Guna with a net annual income of Rs.21,945/-. (ix) 4 hectare of agricultural land in village Mahugada, Tehsil and District Guna with net annual income of Rs.l0,000/-. (x) 2.440 hectare of agricultural land in village Bamnawar, Tehsil Isagarh with net annual income of Rs.12,000/- purchased by respondent on 3.6.2000 vide registered sale-deed for Rs.1,52,500/-. (ix) 4 hectare of agricultural land in village Mahugada, Tehsil and District Guna with net annual income of Rs.l0,000/-. (x) 2.440 hectare of agricultural land in village Bamnawar, Tehsil Isagarh with net annual income of Rs.12,000/- purchased by respondent on 3.6.2000 vide registered sale-deed for Rs.1,52,500/-. (xi) Block No. 12,13 and 14 comprised in survey No.457 within the municipal area Guna admeasuring 1100 sq.ft. purchased by the respondent vide registered sale-deed for Rs.3 lacs on 14.9.2000. (xii) Plot No.4 in area 25x50 ft., plot No. 151 in area 12x18 ft. and plot No. 164 in area 12x18 ft. situated at Yatayat Nagar, Guna. (xiii) 4.337 hectares of agricultural land purchased by respondent vide 4 registered sale-deeds on 21.12.2002 for Rs.4,35,000/- situated in village Piproda Khurd, Tehsil and District Guna. (xiv) 9.048 hectares of agricultural land situated at village Behta Ghat, Tehsil and District Guna purchased by respondent on 12.7.2002 for Rs.7,32,888/- vide registered sale-deeds. (xv) 1.965 hectares of agricultural land in Municipal area of Ashok Nagar District purchased by respondent for RS.8lacs on 5.5.2003. (xvi) Taxi permit registered on 21.11.2001 in respect of Accent GVS car. 6. After giving all these particulars when the summary enquiry was ordered in the matter, petitioner entered the witness box as a witness and supported her application. Apart from the aforesaid, she examined three more witness namely Maherban Singh, Mahendra Singh and Harveer Singh. She also produced documents in support of her claim and these documents have been admitted in evidence and have been exhibited on record, as is evident from the impugned order Annexure P-58 dated 13.4.2004. Inspite of the fact that all these materials were produced by the petitioner, the annual income of the respondent is assessed as Rs.2 lacs per year by the learned Court below only on the basis of the income tax return for the year 2001-2002 and 2002-2003. 7. It is relevant to mention here that in the income tax return filed by the respondent he had only indicated his income from the commission received from Government contract. He had not indicated the income received from agricultural sources and other activities undertaken by him. 7. It is relevant to mention here that in the income tax return filed by the respondent he had only indicated his income from the commission received from Government contract. He had not indicated the income received from agricultural sources and other activities undertaken by him. A perusal of the order passed by the learned Court below indicates that after considering the objection raised by the respondent husband to the effect that petitioner is an educated lady able to maintain herself, finding is recorded by the learned Court below that petitioner is not earning any amount and is unable to maintain herself. Accordingly, in para 12 of the impugned order it has been held that petitioner's financial condition is not good, she is not earning anything and is unable to maintain herself. Thereafter, the learned Court has proceeded to assess the annual income of the respondent husband and the income is assessed at Rs.2 lacs per year. 8. The petitioner by making a detailed averment in her application u/s 24 has indicated that the annual income of respondent is Rs.5,26,725/and had indicated the source and the income derived from such source in her application, as reproduced hereinabove. In rebuttal respondent has not produced any evidence to discard the contention of the petitioner, he only says that petitioner is taking tuition for students and is able to maintain herself by doing some stitching and other tailoring work. His financial condition is not good, he has 5-6 member in his family to be looked after, his mother is always sick and has to spend Rs.20,000/- every month on her treatment and the responsibility of looking after his children are also on him. Except for giving his own statement respondent Dilip Singh has not led any evidence to establish his contentions. In that view of the matter the income alleged by the petitioner in the application has to be held as correct. 9. As indicated hereinabove, assessment of annual income of the respondent husband is based only on the income tax return. However, while assessing the annual income the earnings of respondent from various other sources as indicated in the record has been totally ignored. In the impugned order the learned trial Court from para 15 onwards has proceeded to assess the earning of the husband. However, while assessing the annual income the earnings of respondent from various other sources as indicated in the record has been totally ignored. In the impugned order the learned trial Court from para 15 onwards has proceeded to assess the earning of the husband. It is seen from the record that EX.D1 is the Land Revenue records of the year 1995-2000 of village Barauli and in this revenue record owner of agricultural land is indicated and name of the respondent husband is indicated as Bhoomswami. Similarly, EX.D-2 is land records of village Sarkhandi, EX.D-3 is the revenue records of village Mahugarh and EX.D-8 is the revenue records of village Kushmauda. In all these records it is indicated that respondent is owner of agricultural land. Similarly, EX.D-20 to D-24 are the revenue records indicating availability of agricultural land in the name of respondent in village Marauli and other places. So also in EX.D-31 to D-38 respondent husband is shown to be owner of various agricultural land in different places. It is the case of the petitioner that in all the total area of agricultural land comes to more than 30.00 hectares and therefore, the respondent is earning a substantial amount from these agricultural land. Although learned Court has taken note of this fact and has indicated that as per the revenue records respondent is owner of various agricultural lands, income from these agricultural lands has not been taken into consideration while assessing the annual income of the respondent. That apart it has been indicated in para 16 of the order that sale-deeds Ex.D-6, 7, 9, 13, 14, 15, 16, 17, 18 and 25 are sale-deeds executed showing purchase of various lands by the respondent husband. In the order it is further indicated that Ex.P-10 to P-12 are documents showing running of passenger bus No. MP08/8151 in the name of respondent husband so also another bus namely MP08/C/2332. EX.D-39 is the document showing ownership of house in Bhopal situated in Kotra Sultan in the name of respondent husband and house in Transport Nagar, Guna. Similarly, EX.D-26 to 30 are documents showing filing of applications by respondent husband under section 138 of the Negotiable Instruments Act claiming amount from various persons on account of dishonour of cheques. EX.D-39 is the document showing ownership of house in Bhopal situated in Kotra Sultan in the name of respondent husband and house in Transport Nagar, Guna. Similarly, EX.D-26 to 30 are documents showing filing of applications by respondent husband under section 138 of the Negotiable Instruments Act claiming amount from various persons on account of dishonour of cheques. It is surprising that inspite of all these overwhelming material available on record to show that the respondent husband is owner of various agricultural lands, has purchased property vide sale-deeds more than ten in number detailed in para 16 of the order, is owner of buses, owner of house in Bhopal and has also initiated proceeding claiming various amount and penalty under section 138 of Negotiable Instrument Act, the learned Court has assessed the annual income of respondent husband only at Rs.2 lacs per year is totally perverse and unreasonable finding recorded by the Court below. The applications filed by respondent under section 138 available on record at Ex.D-26 to D-30 indicate that in all these cases, the amount of cheque which was dishonoured are more than one lac in each case. In some cases it is more than Rs.3,50,000/- and in one case Ex.D-30 it is about ten lacs. If the respondent husband is owner of two buses, a large number of property , including agricultural lands measuring more than thirty hectares it is beyond apprehension that his income would be only Rs.2 lacs per year. I am of the concerned view that in the facts and circumstances of the case, the annual income assessed at RS.2 lacs is too low and the finding recorded assessing the annual income at Rs.2 lacs is a perverse finding which cannot be sustained in the facts and circumstances of the case. It is to be accepted that the annual income of the respondent husband is to be the one as claimed by the petitioner in her applications Annexure P-2 if not more and this is sufficient ground in holding that the annual income of respondent husband is more than five lacs as claimed by the petitioner. 10. It is the considered view of this Court that while assessing annual income of the respondent husband the learned Court below has committed material irregularity and has recorded a perverse finding which requires interference in this proceeding under Article 227 of the Constitution. 11. 10. It is the considered view of this Court that while assessing annual income of the respondent husband the learned Court below has committed material irregularity and has recorded a perverse finding which requires interference in this proceeding under Article 227 of the Constitution. 11. Having held so, the next question would be as to at what rate the maintenance is to be granted to the petitioner. In the case of Archana Tiwari (supra), it has been held by a bench of this Court that for granting maintenance allowance pendente lite several facts have to be taken into consideration. It has been held by the learned Judge that no hard and fast rule should be applied for allowing 1/5th and 1/3rd of the husband's income as maintenance. It is indicated in the aforesaid judgment that reasonable discretion should be exercised by the Court in the facts and circumstances of each case and no fixed rule can be applied in such manner. It has been indicated by the learned Judge that while awarding alimony under section 24 of the Hindu Marriage Act, the Court must keep in view that one cannot live like a lord and the other like a maid nor one can live like a princess and the other like a servant. It has been indicated that there must be some balance. It is clear from the aforesaid judgment that while granting relief of maintenance a balance has to be struck and the status of the husband and wife has to be taken note of. In the case of Chitra Sengupta (supra), it is held that the amount which can be regarded to be sufficient to support the wife would depend on the status of the husband, the word "income sufficient for her support" indicated under section 24 it has been held is that such amount which would be sufficient for the wife to meet out the expenditure for existence in a substantial level, keeping in view her status to which she is entitled. Similarly, in the case of Nirmala Tiwari (supra), it has been held by this Court that the maintenance is to be granted after taken note of the income of the husband and in this case it has been held that the wife is entitled for maintenance at the rate of 1/2 of the husband's income. Similarly, in the case of Nirmala Tiwari (supra), it has been held by this Court that the maintenance is to be granted after taken note of the income of the husband and in this case it has been held that the wife is entitled for maintenance at the rate of 1/2 of the husband's income. The principle on the basis of the aforesaid judgment clearly indicates that maintenance is to be granted, not only based upon the income of the husband but it is also correlated to the social status of the parties. 12. From the material that has come on record it is clear that the petitioners husband is a affluent businessman and an agriculturalist with large number of agricultural holding, property and houses in Guna and Bhopal, a car and other vehicles of his own, so also is owner of passenger bus, accordingly, it is to be held that petitioner's husband and the petitioner belongs to the upper class of the society and enjoying a status high in the social structure of the community. That being so petitioner is also entitled to a maintenance correlated to such status, so that she can maintain herself reasonably in a manner expected of a person coming from such a well to do family with a respectable social status. There is no hard and fast rule of assessment of the quantum of maintenance to be granted, it depends on the facts and circumstances of each case. Undoubtedly, the economic conditions of the parties are the most important factor to be considered for determining the quantum of maintenance, the other factors including status of the parties, so also their conduct, no arithmetical formula is applicable for determination of the quantum of maintenance. The Court is required to take all the circumstances of the case into consideration and the broader guidelines mentioned hereinabove are to be applied. Under these circumstances, the amount of maintenance at Rs. four thousand per month is far too much on the lower side, even though petitioner has claimed the maintenance of Rs.21,946/-, in the facts and circumstances of the case, maintenance at the rate of Rs.15,000/- per month would be a reasonable amount. Accordingly, it is held that in the facts and circumstances of the case, the petitioner is entitled to a maintenance of Rs.15,000/- per month. Accordingly, it is held that in the facts and circumstances of the case, the petitioner is entitled to a maintenance of Rs.15,000/- per month. To that effect the petition is allowed and the order impugned granting maintenance to the petitioner to the tune of Rs.4,000/- is interfered with and the amount of maintenance is enhanced to a sum of Rs.15,000/- per month. 13. Having held so, the next question would be as to from what date the petitioner is entitled to this maintenance, whether from the date of filing of the application that is 4.8.2000 or from the date of the order that is 13.4.2004. The learned Court below has granted maintenance to the petitioner from the date of order on the ground that the petitioner is responsible for much of the delay caused in deciding the application. This in my view is a perverse and illegal finding and the reasoning recorded by the Court below to the effect is unsustainable. The particulars of the dates of hearing as contained in Annexure P-60 indicates that the application for maintenance was filed by the petitioner on 4.8.2000 and she has not taken adjournment on more than two or three occasions. On the contrary various applications were filed for summoning of documents and records and this has been construed as adjournments at the behest of petitioner, this was not the correct approach to be adopted by the learned Court in the peculiar facts and circumstances of this case. Petitioner in her application Annexure P-2 filed under section 24 had given specific details pertaining to income and property of the respondent, but the respondent simply denied the same. This compelled the petitioner to file applications in the Court seeking information from the respondent with regard to his income and particulars of the property. Various applications were filed by the petitioner for summoning of records including income tax return and particulars of the agricultural land and other details of the passenger bus owned by the respondent but the respondent did not cooperate in the matter and, therefore, the petitioner was compelled either to get the documents summoned from the Income Tax Department, Transport Department and the Revenue Department or to file certified copy of these documents to establish her claim. That being so, the delay, if any, for producing these materials on behalf of the petitioner cannot be attributed as delay on the part of the petitioner, as it was necessary for the petitioner to prove her claim and if the respondent was not cooperating in coming out with the true facts and if petitioner was compelled to file applications for summoning of documents and took time for getting certified copy petitioner cannot be held responsible for the delay. In that view of the matter, the delay attributed to the petitioner is wholly unreasonable and unsustainable. 14. The full bench of this Court in the case of Saroj Bai (Smt.) v. Jai Kumar Jain [ 1994 JLJ 725 (Full Bench)], has considered the question of granting maintenance from a particular date and in para 15 of the aforesaid judgment after considering various judgments it has been held by the Court as under : "Even in a civil suit for future maintenance, the Court is required to pass decree for maintenance from the date of the suit. Ordinarily, Courts look to the state of affairs, prevailing on the date of the suit. Where a litigation is prolonged unduly, either on account of the conduct of the opposite party, or on account of the heavy docket in Court or for other unavoidable reasons, it would be unjust and contrary to the very purpose of the provision to postpone the effectuation of the order to the date of the order. Such postponement deprives the claimant of the benefit of the fruits of a decree which he or she could have obtained through a civil Court. Looking at the matter from this perspective also, there is justification to say that ordinarily the claimant who seeks an order for maintenance under section 125 of the Code shall obtain the relief from the date when she or he approached the Court i.e., the date of application and only where there are circumstances justifying a contrary view, it can be postponed to the date of the order." 15. It is clear from the aforesaid judgment that when litigation is prolonged unduly on account of conduct of the opposite party of on account of unavoidable reason, benefit cannot be denied to the claimant. It is clear from the aforesaid judgment that when litigation is prolonged unduly on account of conduct of the opposite party of on account of unavoidable reason, benefit cannot be denied to the claimant. Applying the principle laid down by the Full Bench as indicated hereinabove, it has to be held that in the facts and circumstances of the case, the petitioner is entitled to maintenance from the date of filing of the application that is 4.8.2000. Considering the same, this application is allowed. The order impugned Annexure P-58 dated 13.4.2000 is quashed and modified to the extent that petitioner shall be entitled to maintenance at the rate of Rs.15,000/- (Rupees fifteen thousand only) from the respondent and the said amount shall be paid to the petitioner with effect from 4.8.2000, when she fi1ed the claim application before the Court below. Petitioner is also entitled to further cost of Rs.5,000/- (Rupees five thousand only). Accordingly, petition stands allowed with the aforesaid directions and costs. ...........................