IN THE HIGH COURT OF JUDICATURE AT PATNA C.R. No.626 of 2008 SAMANT BHADRA Versus KUMARI RASHMI PRIYADARSHNI@ANJALI & ANOR. ----------- 2. 19.9.2008 Heard counsel for the petitioner and the counsel for the opposite parties. This application has been filed against an order dated 24.1.2008 whereby and whereunder the court below has directed the petitioner to pay a sum of Rs. 2000/- per month by way of maintenance pendente lite and Rs. 3000/- consolidated by way of cost of litigation in terms of section 24 of the Hindu Marriages Act (hereinafter referred to as „the Act‟). Counsel for the petitioner would submit that the court below has not recorded any finding on “own income” of the petitioner and that whatever has been observed in the impugned order is more or less by way of surmises and conjectures. It has further been submitted that the petitioner is an unemployed person and that merely because his family members had owned shop and agricultural land will not constitute his “own income”. 2 This Court would find that the application under section 24 of the Act came to be filed by the petitioner seeking divorce from his wife, opposite party. Such application having been filed the wife after her appearance had filed an application on 4.8.2006 wherein she had stated the following facts: ^^ xjho ijoj lyker lnj xqtkfjÓ gS fd jslikUMsUV ,d xjhc vkSjr gS oks vius eka cki ds lkFk fnYyh esa rFkk ;nk & dnk xkWao ij jgrh gS oks bldks mijksDr eksdnek yM+us dh {kerk iSls dh vkHkko esa ugha gS oks blds firk dh Hkh vkenuh ugha gS oks lks;y dkQh iSlk okyk O;fDr gS vkSj izfrfnu 1000@:i;s dh vkenuh lk;y dks gS vkSj lk;y dk viuk fofg;ka cktkj esa futh edku esa fLFkr 10 nwdku gS ftlesa vkB nwdku HkkM+k ij pyrk gS ftlls 8000@:i;k fdjk;k vkrk gS rFkk nks futh nwdku gS ftlesa 500@:i;k izfrfnu dh vkenuh gS oks edku Hkh HkkM+k ij pyrk gS ftlls Hkh fdjk;k 1000@:i;k vkrk gS oks lk;y lwnh fdLrh dk dkjksokj Hkh djrk gS ftlls 10000@:i;k ekgokjh vk; gksrk gS lk;y dkQh iSls okyk O;fDr gS ysfdu jslikUMsUV dks esuVsu ugha djrk gS oks [kpZ Hkh ugha nsrk gS vkSj tku cq> dj xyr MkbHkkslZ dk eksdnek nk;j dj fn;k gS jslikUMsUV ds ikl ,d [kj eksgjk Hkh eksdnek yM+us ds fy, ugha gS A ** It is on record that when such application was filed the petitioner had 3 filed his rejoinder on 24.8.2006 wherein the plea taken by him with regard to his financial condition was taken in the following terms: ^^ 2- ;g fd okLrfodrk ;g gS fd vkosnd vius o`) firk ij iw.kZr% vkfJr gS A vkosnd ds firk dks isaÓu feyrk gS mlh ls vkosnd ds ekrk firk oks vkosnd dh fo/kok cgu vius rhu cPpksa ds lkFk mlh ij vkfJr gS A 4- ;g fd vkosnd dks dksbZ edku oks nqdku ugha gS cfYd eu vkosnd firk ds isaÓu ij vkfJr gS vkSj jkstxkj ds fy, ijh{kk ns jgs gSa A 5- ;g fd foi{kh ds }kjk dgs x;s nqdku vkSj fdjk;k dh vkenuh ds ckjs esa fcYdqy >wBk oks csyk cqfu;kn gS A vkosnd dks dksbZ vkenuh dk tfj;k ugha gS A ** From the pleadings therefore it would be clear that while wife was claiming that the petitioner had an income of Rs. 1000/- per day from ten shops out of which eight were on rent fetching monthly rental of Rs. 8,000/- and two shops in which business was being conducted by the petitioner fetching income of Rs. 500/- per day, in addition to the rents from the house of Rs.1,000/- as also some business of money lending fetching another income of Rs. 10,000/-. When the petitioner came to deny this aspect all that he accepted that he was 4 dependent on his father, was appearing in competitive examination and that have no such income as alleged in the application. It is not in doubt that the fact regarding to an income is a fact within the special knowledge of the person concerned and burden to prove under section 106 of the Evidence Act would squarely lay on such person. When the lady, ousted from the house not living over there claiming maintenance due to divorce case had made out a specific case with regard to there being eight shops on rent, two shops for the family business and other source of income for the family, it was the duty of the petitioner to at least set out the correct facts with regard to the family business, family income so as to exclude his involvement by way of his “own income”. This Court would find that the petitioner has purposely concealed his income and had not placed the relevant materials on record. At this stage it would be relevant to note here that when this Court wanted the counsel for the petitioner to place on record the documents which have been referred to in the impugned order filed 5 by the petitioner before the court below that he had no income of his own, he has failed to produce any of such documents. In such situation, this Court would again draw adverse inference under section 114(g) of the Evidence Act which would mandate a person to produce documents/ information which is in his custody. It is thus apparent that the petitioner has not been coming out with a correct fact with regard to his own income. A question would arise as to what is the meaning of expression “own income” under section 24 of the Act. In India where the presumption of the family properties being in jointness is an accepted position in law every member constituting part of a Hindu Undivided Family (HUF) will have his defined share in the income from that H.U.F. properties and he cannot be said to have no income of his own from such H.U.F. properties. The limited expression of “own income” in Section 24 of Hindu Marriage Act has to be read and understood in the context of use of expression “independent source of income” in that very Section 26 of the Act 6 whereas the person claiming maintenance has to satisfy that he or she has no independent source of income, the person liable to pay compensation has to pay it from his own income. Therefore, this Court would hold that when there was substantial means in the family of the petitioner on the strength of which he got married, he has to share the burden of supporting his wife during the course of annulment of such marriage for which he has filed a divorce suit. This being so, this Court would not find any merit in the second part of the submission that as the marriage was solemnized by committing fraud, the same would disentitle the wife from claiming maintenance under section 24 of the Act. Such allegations are still only the allegations and have to be proved on the strength of which the marriage may be declared to be void or the decree of divorce may be granted or refused as well. At this stage merely because a husband will have a privilege to malign his wife by alleging that the marriage was solemnized by committing fraud that would 7 not absolve him from rigours of section 24 of the Act. This Court would thus find no merit in this application and the same is dismissed with a direction to the petitioner to pay the entire arrears and current amount within a period of one month from the date of receipt/ production of a copy of this order, failing which the court below will be entitled to take coercive steps against the petitioner. (Mihir Kumar Jha,J.) Surendra/