IN THE HIGH COURT OF JUDICATURE AT PATNA C.R. No.338 of 2008 VIKASH KUMAR DUBEY @ VIKASH DUBEY @ SAROJ DUBEY Versus SAVITA DEVI ----------- C.R. No.660 of 2008 VIKASH KUMAR DUBEY @VIKASH DUBEY@SAROJ DUBEY Versus SAVITA DEVI ----------- For the petitioner : Mr. Y.V.Giri,Sr.Adv., Mr. Ashok Kumar Dubey For the O.P. : Mr. Awadhesh Kr.Mishra, Mr. C.B.Upadhya. 4. 15.9.2008 Heard counsel for both the sides. The two Civil Revision applications directed against the two parts of the same order have been heard together and are being disposed of by this common order. In C.R.No. 338/2008 the petitioner has assailed the order under Section-24 of the Hindu Marriage Act granting maintenance pendentilite @ Rs. 1,000/- per month for the wife opposite party and @ Rs. 1,000/- per month each for the two minor sons. The court below in impugned order in fact has discussed all the pros and cons pertaining to the income of the parties and has come to a conclusion that the wife opposite party does not have a source of income to maintain herself and her two dependent minor sons. It 2 has also gone to discuss the source of income of the petitioner and has come to a finding that a sum of Rs. 6,000/- per month can definitely be said to be the income of the petitioner and therefore, he must pay a sum of Rs. 3,000/-, for three persons, namely, wife and two sons. Mr. Yaduvansh Giri, learned Senior counsel appearing on behalf of the petitioner, however, would submit that the court below has committed an apparent error on the face of record in allowing such claim of the wife opposite party who belongs to a very rich family and has huge property from which she can derive sufficient income for maintaining herself and the two minor sons. In this context the Sheetanchor for submissions of Mr. Giri is only a plaint of title partition suit in which the mother-in- law, i.e. mother of the wife of the petitioner, has sought partition of the family property and from the schedule of the property to the said plaint it has been suggested that the wife of the petitioner had a defined share from she was deriving sufficient income so as to maintain herself 3 and her two dependent children. This Court however is not in a position to accept such submission for the simple reason that the said partition suit is still pending and no decree has been passed so as to infer separate possession of the share of the wife of the petitioner in respect of the suit property. That apart from the reading of the plaint of the partition suit it would be clear that there is a dispute for partition of family properties between the two wives of the father of the wife of the petitioner and that the stepbrothers of the wife opposite party being sons from second wife are enjoying the suit property exclusively by denying the claim of the wife of the petitioner. As a matter of fact in paragraph no. 12 and 13 of the plaint, the mother of wife opposite party has clearly alleged that she was deprived of her share as would be apparent from the following averments :- 12. ;g fd eu eqnb;k ds eqnfr ls dbZ ckj dgh oks dgyokbZ dh eu eqnb;k dk fglk fdlh vehu ls ukih tks[kh djkdj vyx vyx dk;e dj ns oks otfj;s fdlh rjhdk ds mijksDr caVokjk dks fyf[kr :I ls la?k`r dk;e dj 4 nsa ysfdu eqnk0 ,d u ,d cgkuk cukdj Vkyrs eVksyrs vk jgs gSA 13- ;g fd eqnk0 ds xfr fof/k ls ;g tkfgj gks jgk gS fd cxSj eksdnek caVokjk dk fd;s eu eqnb;k dk fglk eqnkysge caVokjk ds tfj;s ugha djkuk pkgrs gSa ysgktk ukScr ukfyl gktk dh gqbZA In this regard the Court below has also gone into issue of income of the wife opposite party and its finding in the impugned order is as follows : - “It is pleaded that Suresh Tiwari father of the wife got certain lands and shops in the partition. The applicant has given the details of those lands. The applicant has shown that his father in law is no more and his wife is in joint legal possession of the lands of herd father. The applicant has given the details of those lands. The applicant has shown that his father in law is no more and his wife is in joint legal possession of the lands of herd father. The applicant husband has not quantified the 5 income coming to the hands of the wife. As against it the wife has also sworn affidavit and has stated on oath that the lands of his father are under litigation with various co-sharers and coparceners of the property and she does not derive any income out of those lands. The applicant husband has pleaded that the wife has certain interest in certain lands of his father. Section 24 of the Hindu Maintenance act stipulates that either the wife or the husband as the case may be, has no independent income sufficiency for her or his support (Emphasis applied by me). Section 24 of the Hindu marriage act clearly stipulates independent income and not properties. The applicant who has sworn affidavit has simply stated that the father of the wife has 6 got certain lands and the wife is a successor and in joint possession of the fathers properties. The affidavit does not show that the wife has got any income independently. The affidavit does not speak about the sufficiency of the income. The affidavit files by the applicant husband only goes to show that wife of the father has got certain landed properties. There is no evidence on the record that the wife is actually deriving any income from those lands. Having some interest in the properties is something else whereas having actual income from those properties is something else. Even if I assume that the father of the wife has certain lands and as per the law the wife may have some share in those lands I do not have any reason to assume that the wife is actually deriving some income from those 7 lands. Further more I do not have any reason or base to assume that such income is sufficient for the living and maintenance of the wife who is maintaining her two sons along with her. Needless to say that the requirement of a mother of a wife for her living would include requirement of her minor children. After all a mother having two minor children has to provide for the fooding, clothing, education, medical care and incidental expenses for her children. These are the natural liabilities of a mother and the funds required by the mother for the maintenance of the minor sons are the natural requirements of the mother herself. This has come on the record that the wife has the custody of the two children; one is aged about nine or ten years and another is aged about seven years. Both have to be given proper education but the 8 O.P. husband has failed to show to the court at wife has any independent income which is sufficient for her maintenance and for the maintenance of the two minor children. In that view of the matter, it cannot be said that the wife of the petitioner has already got a fixed income out of the suit property. That being so, this Court would not find any reason to interfere with the finding of fact of the court below that the wife of the petitioner had no such sufficient independent source of income so as to be denied payment of maintenance from her husband, the petitioner. This Court does not also find any fault or error in the impugned order fixing the amount of income of the petitioner of Rs. 6,000/- per month. That being so, this Court will have no reason to interfere with the quantum of amount of maintenance which is quite reasonable taking into consideration that three persons have to survive on this fixed amount of Rs. 3,000/- per month i.e.. 9 As with regard to the second part of the order which is the subject matter of C.R. 660/2008, whereby and whereunder the prayer of the petitioner for custody of his two minor sons has been rejected, this Court would notice that the court below has taken two things primarily into consideration for allowing both of them to live under the guardianship of their mother, the wife of the petitioner. The first thing is the age of those minor sons being 10 years and 7 years which automatically makes them closer to the mother. The finding of the court below that if these two young children are taken away from the custody of the mother, there would be possibility of complete psychological and emotional breakdown for them, cannot be said to be vitiated by any error. It is quite natural for these two sons to have developed intimacy with their mother especially when the father from the year 2003 is contesting the matrimonial case seeking divorce and has never shown any affection or care for their sons. That apart the court has also recorded the statement of the two sons who 10 had wholly heartedly conveyed their wishes to remain with their mother. Normally such conduct of the minor children may not be very relevant because that may be only on account of long stay with their mother but then what would really irk this Court is that on one hand the petitioner says that he does not have even money to pay maintenance for these children and on the other hand he is pressing for their custody on the ground of their welfare. The learned counsel for the petitioner has infact failed to satisfy this Court as to how the welfare of the two children would be secured in the hands of the petitioner. The whole aspect has been analysed by the Court below at a great length while recording its following findings :- “Although the husband has prayed for the custody of the children but no where he has stated in his application that he has the means to provide for the education and other necessary facilities of the minor children. The order sheet dated 12.08.2004 goes to show 11 that the husband showed the willingness to have the custody of the children but took a stand that he has no income of his own. After 12.8.04 we are in the year 2008 January. The two children were and are still in the custody of their mother. She has nurtured the minor children. She has been claiming maintenance allowance from her husband for the two minor children but for the last three years the husband never showed any sign that he ever bothered about the welfare of the minor children. The O.P. wife who is the mother of the two children is discharging the burden of maintenance of the two children and the applicant husband is almost a silent looker. In his application dated 26.11.2007 the husband has not whispered about his means to maintain the children. It appears that the applicant husband is not serious 12 and honest about the welfare of the children. I have a brief talk with the two children. The elder son Mukul Kumar Dubey is aged about nine or ten years old whereas the younger one is six or seven years old. The children are living with their mother for the last four or five years or more than that. During my talks with the children I found that they are very attached to their mother and they were not willing to accompany with their father. They showed their willingness to live with their mother and they were afraid of any thought about going to the father. In fact both the children wanted to live with their mother. The two children are quite young. Eldest is nine or ten years old and younger is six to seven years old. The two children are attached with their mother. They are not willing to stay away from their mother. They 13 are not willing to live with their father. In such a circumstances if the two children are separated from their mother; it may adversely effect their psychological development. They may suffer psychological or emotional break down the custody of the minor children can not be given to the father in present case because the father does not appear to be honest to the children. He has brought a case for divorce against his wife as early as in the year 2003 but he says that he has no means or no income. I have gone through the affidavit and the application of the husband dated 26.11.2007. It appears that the applicant father is a retired teacher. It appears that the applicant was in possession of some motor cycle but he says that he does not have any means and is unable to maintain himself. It appears that 14 the applicant father of the minor and husband of the O.P. wife has not come to the court with clean hands. It appears that the petition of the applicants father dt. 26.11.2007 is only an attempt to avoid the payment of maintenance to the minor child tan. It appears that the application of the husband dt. 26.11.2007 is not bonafide. Keeping in view the discussions made above by me I hold that the minors are naturally attached to their mother. They are still of tender age. His mother has somehow nurtured the two minor sons whereas the husband father and applicant has neglected to maintain the minor children and did not care about the welfare of the minor and has not come to the court with clean hands. It appears that according to his own averments he has a motor cycle. A 15 person enjoying a motor cycle riding and his father being a retired teacher and whose family is said to be possessed of substantial landed properties come to the court with a prayer that he has no means to spare for the minor children. Such a father has disqualified himself from being the custodian of the minor children.” Such finding being neither perverse nor illegal nor even suggested to be error of record cannot be interfered by the court in exercise of its revisional power specially when the paramount important issue being the welfare of the two minor sons have been sought to be protected by the Court below. That being so, this Court would not find even any error in the second part of the impugned order as with regard to the custody of two children. Consequently both the civil revision applications are found to be wholly misconceived and are dismissed with a direction to the court below to ensure that 16 the amount both arrears and current are realized from the petitioner in case he fails to pay the amount within a period of one month from the date of receipt/ production of a copy of this order. (Mihir Kumar Jha,J.) Surendra/