F.A. No.179 of 2001

20th July, 2006

Petitioner Counsel: FAUJDAR RAI, C. K. RAI, S. K. UPADHAYAY, BRIJ RAJ SINGH,,R. P. SINGH
Respondent Counsel: ATUL SRIVASTAVA

Cases Cited:
Vinod Kumar Rai Vs. Smt. Manju Rai, 2006(6) ALL MR (JOURNAL) 1 [Para 13]
Chandrika Vs. M. Vijaykumar, (1996)1 Mad LW 695 [Para 13]

JUDGMENT

JUDGMENT :- A wife's suit for maintenance has been decreed by the Addl. District Judge, Ghazipur in her and daughter's favour which brings her husband in appeal here.

2. From time immemorial, the husband has been recognized as a bread earner of the family and Section 18 of the Hindu Minority and Guardianship Act, 1956, hereinafter called the 'Act' incorporates the said principle. It may be noted that unlike section Section 125 of Criminal Procedure Code, the 'Act' recognizes only the husband as the maintainer of the family irrespective of the consideration whether the wife is able to maintain herself or not.

3. The only obstruction in granting of maintenance is provided in various sub-clauses of sub-clause (2) of Section 18 of the Act, which is as follows :-

"(2) A Hindu wife shall be entitled to live separately from her husband without forfeiting her claim to maintenance :-

(a) if he is guilty of desertion, that is to say, of abandoning her without reasonable cause and without her consent or against her wishes, or of willfully neglecting her;

(b) if he has treated her with such cruelty as to cause a reasonable apprehension in her mind that it will be harmful or injurious to live with her husband;

(c) if he is suffering from a virulent form of leprosy;

(d) if he has any other wife living;

(e) if he keeps a concubine in the same house in which his wife is living or habitually resides with a concubine elsewhere;

(f) if he has ceased to be a Hindu by conversion to another religion;

(g) if there is any other cause justifying her living separately."

4. In the case in hand what has to be seen is whether any of the circumstances enumerated therein exist as to bar the respondent's (Smt. Manju Rai) right to receive the maintenance.

5. The evidence in the case consists of merely the oral statement of the husband and the wife who have reiterated their respective contentions.

6. In this case, there is little difficulty in holding that the husband has treated the wife with cruelty because he has hurled the charges of infidelity against her and that is conduct cruel enough to justify the wife's demand to live separately and to receive maintenance.

7. The only other thing which has to be examined is whether the wife is unchaste as provided in Clause 3 of Section 18 of the Act as noted below :-

"(3) A Hindu wife shall not be entitled to separate residence and maintenance from her husband if she is unchaste or ceases to be a Hindu by conversion to another religion".

8. It is for the husband to prove that the wife is unchaste because it is he, who levels the allegations and in accordance with Section 101 of the Evidence Act, it is on him to prove the same. It is no doubt true that it is difficult to prove unchastity but it is also true that it is easy to level such allegations.

9. When a matter comes to the Court, proof is required because proof is the corner-stone of the Court Procedure. It is not possible to the Court to accept any such allegation without proof. In the case in hand, there is no proof whatsoever except a bare allegation. It is not possible, therefore, for the Court to accept the husband's contention of unchastity against the wife-respondent. The hitch placed by sub-clause (3) of Section 18 of the Act, cannot, therefore, obstruct the grant of maintenance to the wife.

10. The controversy, whether the daughter is a legitimate child of the husband-appellant is irrelevant for the purposes of the case because Section 20 of the Act makes no discrimination between a legitimate or illegitimate child for the grant of maintenance.

11. The only question, which therefore, remains is that of quantum of maintenance to be granted to the wife. The trial Court has granted Rs.1,500/- per month to the wife-respondent and Rs.500/- per month to minor daughter.

12. Section 23 of the Act provides some guidelines for determination of question of maintenance. In the present case, wife has no source of income. We have only to see the income of the husband for determining the amount of maintenance. The husband is a Sepoy in the Army. He has not produced any document with regard to the amount of his salary, which he could and should have done and has only stated that he gets Rs.5,000/- per month as salary. The wife-respondent on the contrary says that his salary is Rs.7,800/- per month. The trial Court accepted the wife's contention that his salary is Rs.7,800/- and that seems to be the right in view of these circumstances. Without having any specific percentage or proportion been prescribed the fixing of the amount of maintenance has, of necessity to be a little arbitrary.

13. In the other First Appeal No.182 of 2001, (Vinod Kumar Rai Vs. Smt. Manju Rai) [reported in 2006(6) ALL MR (JOURNAL) 1] 20th July, 2006 by the husband which has been allowed by this Court, a decree of divorce has already been granted in his favour. It is now well settled that a Court may suo motu grant maintenance, even if it has not been claimed. Reference may be made in this connection of the case of Chandrika Vs. M. Vijaykumar, (1996)1 Mad LW 695 where it has been so held. There is as such, no legal bar in the Court raising the amount of maintenance. In a case one Judge may grant Rs.5,000/- per month while another Judge may grant Rs.10,000/- per month and both may be right because no specific guidelines for determination of quantum have been provided in the Act. In the case in hand, we have to notice that the girl is around 16-17 years old and the provision has to be made for her marriage also besides her education and other living expenses. The amount granted by the trial Court is, therefore, manifestly meagre and needs to be multiplied 5 times, amounting to Rs.2,500/- per month. The amount granted to the wife also needs to be raised a little so as to Rs.2,500/- per month instead of Rs.1,500/-. The husband/appellant will of course bear the expenses of the marriage of his daughter when the time comes.

O R D E R

The result is that the appeal of the husband-appellant stands dismissed and he is directed to pay Rs.2,500/- per month as maintenance to the respondent-Manju Rai till she survives and Rs.2,500/- per month to his daughter till she is married by him. The amount, at this rate, shall be deducted, from his monthly salary from the date of this order because fixation of any earlier date for the same will cause adjustment problem. Necessary directions shall be issued to the authorities responsible for the payment of salary to the appellant-husband.

Appeal dismissed.