IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA: FAO.No.298/2003. Date of Decision: 11th November ,2008. Smt.Santosh. …Appellant. Versus: Sohan Lal. …Respondent Coram: The Hon’ble Mr. Justice Sanjay Karol, Judge. Whether approved for Reporting?1 Yes. For the appellant: Mr.Neeraj Gupta, Advocate with Ms.Charu Gupta, Advocate. For Respondent. Mr.Bimal Gupta, Advocate. Sanjay Karol, J(Oral) . Both husband and wife have assailed the impugned judgment and decree dated 27th August, 2002 passed by Senior Sub Judge, Solan, District Solan, H.P. in Case No. 9/3 of 1997 titled as Smt.Santosh Vs. Sohan Lal. The wife-appellant (hereinafter referred to as the ‘plaintiff’) filed a suit for maintenance and separate residence against the respondent-objector (hereinafter referred to as the ‘defendant’). The court below decreed the plaintiff’s suit awarding maintenance at the rate of Rs. 500/- per month and also holding the plaintiff entitled for a separate residence from the defendant. I have heard learned counsel for the parties and also perused the record. 1 Whether reporters of Local Papers may be allowed to see the judgment? 2 Certain undisputed facts which emerge from the record are as under: 1. The parties were married as per Hindu rites and customs in the year 1986. The marriage took place in village Kather, Tehsil and District, Solan, H.P. 2. From the wedlock two children were born. From 1995 plaintiff started residing with her parents in a different village as certain disputes had arisen between the parties. 3. Some time in the year 1996 plaintiff did visit the defendant but, however, after a short stay again had to leave the matrimonial house and reside at her parental house and since then the parties are admittedly living separately. 4. On the plaintiff’s complaint, F.I.R.No. 103/1996 dated 5th May, 1996 under Sections 498-A, 323, 506 I.P.C. was registered and the proceedings in relation thereto were pending before this Court. 5. The plaintiff filed another complaint and with the intervention of the police officials of Police Post, Saproon, District Solan, the matter was compromised. Compromise (Ext.PW-4/A also marked as mark-A) was arrived at between the parties in the presence of the certain respectable residents of the village. 6.The plaintiff filed a suit for maintenance and separate residence in September, 1997 which was decreed in terms of the impugned judgment. 3 Both the plaintiff and defendant are aggrieved by the same, of course, for the different reasons. On the pleadings of the parties, the trial Court framed the following issues: 1. Whether the plaintiff is entitled for the maintenance from the respondent as alleged/claimed?. OPP. 2. Whether the defendant has contracted second marriage with Smt.Vidya Devi as alleged, if so its effect?. OPP. 3. Relief. Opportunity was afforded to the parties to lead evidence. Based on the material on record (oral and documentary), the trial Court decided the issues by holding that the plaintiff had reasonable and justifiable cause from withdrawing the matrimonial house and society of the defendant and, therefore, in law the defendant was duty bound to not only maintain the plaintiff but also provide for a separate residence. Accordingly, a sum of Rs. 500/- was awarded towards maintenance with a further direction that the defendant shall provide for a separate residence to the plaintiff. It is a matter on record that in different proceedings initiated under Section 125 Cr.P.C. by the plaintiff, she has been awarded a sum of Rs. 1200/- per month as maintenance. The same was done vide order dated 4 28th February, 2008 passed by Additional Sessions Judge, Fast Track Court, Solan, District Solan, H.P. in Revision Petition No. 29 FTC/10 of 207 titled as Smt.Santosh Vs. Sohan Lal. It is also a matter of fact that in spite of the impugned judgment and decree passed by the court below in favour of the plaintiff, the defendant has failed to provide a separate residence to the plaintiff. This Court had not stayed the operation of the execution of the impugned judgment. In order to prove her case, the plaintiff examined Sh.Fhiyaz Khan (PW-1), plaintiff-Santosh examined herself as PW-2, Sh.Anil Kumar (PW-3), Sh.Tulsi Ram (PW-4) and Sh.Ashok Kumar (Pw-5). They have proved on record the registration of F.I.R.No. 103 of 1996 dated 5th May, 1996 (Ext.PW-1/A) and also the compromise (Ext.PW-4/A) arrived at between the parties. In rebuttal, the defendant examined himself as RW-1 and his relative Sh. Mohan Lal (RW-2). That criminal proceedings were initiated against the husband, pursuant to the registration of the F.I.R. (Ext.PW-1/A) stands admitted by the defendant. The same in any event stands proved by Ext.PW-1/A, PW-2 and PW-3. That the plaintiff is hale and hearty also stands admitted by the defendant in his examination-in-chief. The plaintiff has deposed that the defendant used to beat her. She was turned out of the matrimonial house as the defendant had got married to Smt. Vidya Devi. PW-2 and PW-4 have 5 corroborated the same. The factum of second marriage is evident from the compromise (Ext.PW-4/A). Importantly, the defendant has admitted the execution of this document. The defence taken, however, is that he was made to sign the papers without having known the contents thereof. I am afraid that the defence taken is unbelievable. It is an after though only to wriggle out of the terms of compromise. The execution of the compromise (Ext.PW-4/A) stands proved by an independent witness PW-3 and also PW-4, who is the Up-Pradhan of the area and had no reason to falsely depose against the defendant. Further, the defendant never objected to the execution of the said document prior to the filing of the reply in the proceedings initiated by the plaintiff. In the said document, the defendant admitted the fact that he got married to one Smt. Vidya Devi and would provide a separate residence, pay maintenance and also bear all expenditure for the medical treatment of the plaintiff. He agreed to provide for two rooms to the plaintiff where she could independently reside with her children. This document bears the signatures of the plaintiff, defendant, his mother as also other independent witnesses. I see no reason to disbelieve the same. The defendant has admitted that said Smt. Vidya Devi resides with him at his house, not in her capacity as a wife but to take care of his aged mother. Even this defence appears to false and concocted as neither Smt.Vidya Devi nor 6 the mother have been examined to prove the exact status of the lady. It is the plaintiff’s case, evident from the testimonies of PW-2 and PW-4, that on demand certain dowry articles were given to the defendant even after the solemnization of the marriage. PW-4 has deposed that on the defendant’s demand he got constructed two rooms in the defendant’s village. Importantly, the witness has not been cross-examined at all on this point. On the question of separate residence the defence taken by the defendant is that his mother is the owner of the land and the house and he is staying with her along with his children. It is not the defendant case that he has other brothers and sisters who also reside jointly with the mother. It is also not his case that he is dependant upon his mother for financial assistance. It is also not his case that his mother alone manages the land and looks after the household affairs. . Therefore, presumably he is the only child and entitled to the entire property allegedly owned by his mother. That his mother owns land and residence is not disputed by the defendant. It is also not in dispute that after her marriage plaintiff started resided in village Kather where the matrimonial house and the property is situate. The defendant has not placed on record any revenue documents to prove that his mother is the owner of the matrimonial house or the land. Therefore the defence taken is sham. 7 It is settled law that the maintenance includes the residence and money for necessary expenditure {Mangat Mal (Dead) and another Vs. Punni Devi (Smt) (Dead) and others (1995) 6 SCC 88}. While fixing the amount of maintenance to be awarded to the wife, the status of the parties , the mode of life the wife was used to live and the husband’s capacity to pay has to be taken into account. The maintenance should permit reasonable comfort to the wife. In Jasbir Kaur Sehgal (Smt) Vs. District Judge, Dehradun and others (1997) 7 SCC 7 the apex court held that where diverse claims were made by the parties with regard to the income, some conjecture and guesswork by court was permissible. The court further held: “No set formula can be laid for fixing the amount of maintenance. It has, in the very nature of things, to depend on the facts and circumstances of each case. Some scope for leverage can, however, be always there. The court has to consider the status of the parties, their respective needs, the capacity of the husband to pay having regard to his reasonable expenses for his own maintenance and of those he is obliged under the law and statutory but involuntary payments or deductions. The amount of maintenance fixed for the wife should be such as she can live in reasonable comfort considering her status and the mode of life she was used to when she lived with her husband and also that she does not feel handicapped in the prosecution of her case. At the 8 same time, the amount so fixed cannot be excessive or extortionate”. In B.P.Achala Anand Vs. S.Appi Reddy and another (2005) 3 SCC 313, the apex Court reiterated the aforesaid ratio of law and held as under: “23 It has been held in India that right to maintenance arises out of the status as a wife and not by way of a contract or otherwise. In Sri Raja Bommadevara Raja Lakshmi Devi Amma Garu V. Sri Raja B.Naganna Naidu Bahadur Zamindar Garu Spence, Officiating C.J., stated: (ARI p.757). “The obligation of a husband to maintain his wife is one arising out of the status of marriage. It is a liability created by the Hindu law, in respect of the jural relations of a Hindu family. When there is no contract between the parties to a marriage, as among Hindus, a suit for maintenance is not a suit based upon contract, but it is a suit arising out of a civil relation resembling that of a contract, which is specially provided for in Article 128 of the Limitation Act. (Headnote).”. In the present case, the wife has no income. Bald assertion on the part of the defendant that his wife used to stitch clothes, therefore, presumably she is earning, cannot be accepted. With regard to the actual income of the defendant, the plaintiff through PW-3, PW-4 and in her own deposition has stated that the defendant is running a canteen near the H.R.T.C. workshop at village Chambaghat. In 9 addition he is also selling milk and, therefore is having an income of Rs. 6000/- to Rs.7,000/- per month. As against this, the defendant has deposed that he is working as a labourer. He has not disclosed the exact amount of income which he is earning. He has denied the suggestion that he is earning about Rs.5,000/- to Rs.6,000/- per month. RW-2 has deposed that his shop is just at a distance of about 500 metre from the matrimonial house. He is related to RW-1. Yet he has falsely deposed that Smt. Vidya Devi does not reside with RW-1 which fact stands admitted by RW-1. Therefore his testimony is unbelievable. Keeping in view the attending facts and circumstances, in my view, the version of the wife appears to be more plausible. The defendant must be having some income from the agriculture land also. Even though, there is no documentary proof to establish that the defendant has set up a canteen near the H.R.T.C. workshop at Chambaghat, but, however, the fact of the matter is that the defendant has been paying Rs.1200/- per month as maintenance to his wife since long. It is not his case that he has been borrowing the same to pay his wife. He has been maintaining his grown up sons. It is not his case that he is living in a state of penury. In my view, the stand taken by the wife appears to be true and reasonable. The question, however, is what should be the exact amount of maintenance which should be awarded to the plaintiff particularly when the children are residing with the 10 husband and the defendant, as suggested to him by the plaintiff, would be earning between Rs.5,000/- to Rs.6,000/- per month. Admittedly, the children are living with the defendant. Therefore, in my view, Rs.1500/- per month as maintenance is just, fair and reasonable. It is clarified that the same would be adjusted against any other sum awarded towards maintenance in other proceedings. The defendant in addition thereto, of course, has to provide for a separate residence to the plaintiff. Taking into account the compromise which was arrived at between the parties, it is directed that the defendant shall provide two rooms to the plaintiff in the matrimonial house, which shall be exclusively used by her as her residence. Of course, if the children decide to reside with their mother, it shall always be open for them to do so. The residence shall be provided within a period of three months from today. It is clarified that the defendant shall not part with the possession of the same to third party for any reason. The issue with regard to succession has neither been urged nor considered and decided. For the aforesaid observations, the present appeal is partly allowed and cross objections are dismissed. (Sanjay Karol), Judge. November 11, 2008(R) 11