IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED:04.03.2009 Coram: THE HONOURABLE MR.JUSTICE G.RAJASURIA C.R.P.(PD)No.3345 of 2008 and M.P.No.1 of 2008 P.Nageswaran ... Petitioner vs. T.R.Saraswathi @ Sajini ... Respondent Civil revision petition filed under Article 227 of the Constitution of India against the order and decreetal order passed on 29.07.2008 in I.A.No.4059 of 2007 in O.P.No.3608 of 2007 on the file of the First Additional Family Court, Chennai. For Petitioner : No appearance For Respondent : No appearance O R D E R
Inveighing the order dated 29.07.2008, passed by the First Additional Family Court, Chennai, in I.A.No.4059 of 2007 in O.P.No.3608 of 2007, this civil revision petition is focussed.
2. A summation and summarisation of the relevant facts which are absolutely necessary and germane for the disposal of this revision petition would run thus:
The revision petitioner herein filed O.P.No.3608 of 2007 in the Family Court, Chennai under Sections 11, 12(1) (a) (c) of the Hindu Marriage Act, 1955 for declaring the marriage which took place on 08.03.2007 as null and void. The respondent entered appearance and filed the counter. Subsequently, the respondent filed I.A.No.4059 of 2007 seeking monthly maintenance of Rs.5,000/- and litigation expenses of Rs.7,000/- from the respondent. The trial Court after hearing both sides, passed the order directing the revision petitioner herein to pay a sum of Rs.5,000/- per month towards interim maintenance and a sum of Rs.7,000/- towards litigation expenses.
3. Being disconcerted and aggrieved by the order of the lower Court, this revision has been filed on various grounds inter alia thus:
The lower Court fell into error in awarding such huge maintenance and litigation expenses when in fact there was no evidence on record to demonstrate and display that the husband was earning sufficiently and without giving opportunity to the revision petitioner to file necessary particulars regarding his earning, the Court simply passed such order which deserves to be set side.
4. Despite printing the names concerned, none appeared.
5. A plain poring over and perusal of the typed set of papers including the copy of the order of the lower Court would convey and portray, evince and exemplify that the revision petitioner filed the O.P. before the Family Court as against the respondent herein for getting declared that the marriage which took place between them as null and void and that the respondent is suffering from psychological problem etc. The wife contending that she has no source of income to maintain herself filed the I.A. by projecting and portraying that the husband is working at a high level in HCL and earning a sum of Rs.60,000/- per month. Whereas the husband would contend that he is not working in HCL, but he is earning only a sum of less than Rs.10,000/- per month and he prayed for setting aside the order of the lower Court.
6. By filing the typed set of papers, the revision petitioner would try to project as though he resigned his job in HCL on 04.06.2007 and that the sum of Rs.10,000/- which he was earning per month was not sufficient to meet his own needs and the needs of his aged parents.
7. The lower Court taking into consideration the status of the husband, awarded such interim maintenance and litigation expenses. It is pellucidly and palpably, apparently and appositely clear that the husband failed to act in accordance with Section 106 of the Indian Evidence Act which contemplates that in a case of this nature, the husband should prove his income by producing salary certificate, but he had not chosen to do. He would vaguely and also half heartedly admit as though he was earning a sum of less than Rs.10,000/- per month without furnishing any details. In such a case, by his own conduct, he paved the way for drawing adverse inference as against him relating to his financial capacity.
8. In the lower Court’s order at paragraph 2, presumably a typographical error crept in, as instead of typing Rs.60,000/- it was typed as Rs.16,000/-. In the affidavit of the respondent herein accompanying the I.A.No.4059 of 2007 she only averred that her husband’s income was Rs.60,000/- per month. The lower Court also at paragraph 8 correctly got it typed the said fact. As such, the revision petitioner is trying to make a mountain out of a mole hill by his legerdemain sophistry and casuistry as though the wife herself averred that the revision petitioner’s income as Rs.16,000/- per month, whereas, the Court assumed as though his monthly income would be Rs.25,000/-. The wife having no source of income to maintain herself is entitled to get maintenance from her husband during the pendency of the matrimonial proceedings.
9. At this juncture, my mind is redolent and reminiscent of the decision of the Hon’ble Apex Court reported in (2003) 10 SCC 228 [Amarjit Kaur vs. Harbhajan Singh]. An excerpt from it would run thus:
“8. Section 24 of the Hindu Marriage Act, 1955 empowers the court in any proceeding under the Act, if it appears to the court that either 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 proceeding, it may, on the application of any one of them order the other party to pay to the petitioner the expenses of the proceeding and monthly maintenance as may seem to be reasonable during the proceeding, having regard to also the income of both the petitioner and the respondent.”
10. As such, the precedent cited supra is squarely applicable in the facts and circumstances of this case. It is a common or garden principle of law that in certain cases, even half of the income of the husband could be awarded as maintenance and that too when the couple do not have children. Here, even as per the husband’s admission, he was earning around Rs.10,000/-, but the lower Court awarded only a sum of Rs.5,000/- per month as interim maintenance in addition to having awarded Rs.7,000/- towards litigation expenses. Even though there is no clinching evidence to prove that the husband was earning a sum of Rs.60,000/- per month, nevertheless his contention that he was earning only a sum of around Rs.10,000/- seems to be an unbelievable story.
11. Despite the fact that the petitioner has chosen to enclose a letter dated 22.08.2007 issued by HCL to him, nontheless, he had not chosen to enclose his earlier salary certificate evincing his actual monthly salary which he got from the earlier organisation HCL and that further exposes the attitude of the husband in not willing to disclose his real income and thereby it paves the way for drawing inference as against him relating to his financial status. No husband can plead that presently he has no job or he resigned his job and that he could not pay maintenance. Every husband is expected to exploit his ability and resources and earn and maintain his wife who has no income to maintain herself.
12. It is also a trite proposition of law that the wife is entitled to live in commensurate with the status of her husband and here the husband has not chosen to disclose anything about his designation, but the letter from HCL to him would convey the idea that he was not a lowly paid official. The respondent also has not highlighted that the petitioner is working in Shravan Engineering Enterprises Pvt. Ltd. and earning. Hence for all these reasons, I am of the opinion that there is no merit in this revision petition, accordingly the same is dismissed. No costs. Consequently, connected miscellaneous petition is closed.
gms
To
First Additional Family Court,
Chennai