IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA R.F.A. No. 135/2007 Judgment reserved on 30.8.2010. Date of decision: 3. 9. 2010 Smt. Raj Kumari ….Appellant Versus Sh. Brahm Dass ……Respondent Coram: The Hon’ble Mr. Justice Surinder Singh, J. Whether approved for reporting ?1 Yes. For the Appellant: Mr. P.C. Sharma, Advocate. For the respondent : Mr. Sanjeev Bhushan, Advocate. Mr. Anshul Bansal, Addl. Advocate General with Mr. J. S. Rana, Assistant Advocate General for the State. Surinder Singh J. Appellant-wife filed a suit for maintenance as an indigent person, against the respondent-husband which was decreed with costs by the learned District Judge and awarded maintenance @ Rs.1200/- per month inclusive of Rs.500/- per month already granted under Section 125 of the Code of Criminal Procedure w.e.f. 1 Whether the reporters of Local Papers may be allowed to see the judgment? - 2 - 1.1.2004 and this maintenance amount was ordered to be the first charge over the landed property comprised of khata khatauni No. 4/4 being khasra Nos. 48, 219, 219/1 and 322 situated in village Manoh, Mauza Mewa, Tehsil Bhoranj, District Hamirpur, H.P. owned by the respondent-husband as per Jamabandi for the year 1996-97. He was further ordered to pay court-fee on the amount of Rs.9, 60,000/-. 2. Appellant-wife felt dissatisfied by the impugned judgment and decree and claimed enhancement in the maintenance amount @ Rs.8000/- per month in this appeal, on the ground that respondent-husband was promoted as Superintendent Grade-II and his gross salary had gone up to Rs.16000/- per month. Her husband had no liability, even his son born from the appellant was also living with her. 3. This court had tried to reconcile the matter inter se the parties. Various modalities were suggested but it did not end in success. 4. I have heard the learned counsel for the parties and have gone through the evidence on record. - 3 - 5. When the suit was filed by the appellant- wife, respondent was working as Senior Assistant in the Office of Divisional Forest Officer, Gohar, District Mandi, H.P. Although, appellant alleged his salary to be Rs.15000/- per month besides having earning from his landed property and a house in the native village but during the trial of the case, respondent himself admitted his gross salary to the tune of Rs.14,229/- out of which Rs.9899/- per month was carry home salary after deducting G.P.F. etc.. Learned trial Court took into consideration this fact and also that he had also to maintain his old mother. Whereas the appellant was only getting Rs.500/- per month as maintenance amount which was awarded in the proceedings under Section 125 of the code of Criminal Procedure in the year 1999, thus came to the conclusion that respondent- husband could easily spare Rs.1200/- per month which would also include Rs.500/- per month awarded to the appellant, as aforesaid. 6. Now the learned counsel for the appellant submitted that the mother of the respondent has expired and respondent stands retired from the service as Superintendent Grade-II. He also got the retrial benefits out of which nothing - 4 - was paid to the appellant. It is submitted that the salary of the respondent had gone up to Rs.16000/- per month till his retirement. The respondent is legally bound to maintain his wife who is residing separately in the house of her parents. He is also under obligation to provide a separate residence to her as it has become difficult for her to maintain herself with such a meager amount of Rs.1200/- per month, keeping in view the rising price-index her old age, the need of clothing and medicines, as she remains ill. Thus, the amount is sought to be enhanced reasonably. It is also contended that respondent has kept another lady as his wife and had purchased a house for her therefore; it is difficult for her even to live with him. 7. Contra, learned counsel for the respondent argued that the respondent also remains ill and in addition to the maintenance of the property, he is required to afford the medical expenses for himself. Therefore, it is not possible for him to pay anything more to the appellant but the respondent is ready and willing to keep her with him in his old age, to which the appellant has refused without any reasonable cause. - 5 - 8. It is proved on record that parties to the lis had solemnized marriage in the year 1975. During this marriage, appellant gave birth to a son from the loins of respondent who, at the time of the filing of the suit was studying in BA- Part one. 9. The appellant had also filed a complaint under Section 498-A against the respondent. She alleged that the respondent was living with another lady in her house and even a house had been purchased by the respondent for her, whereas appellant was kept without any maintenance ultimately she had to knock the doors of the Court. 10. It is evident from the evidence on record that the marriage inter se the parties ran into a rough weather. Now it has become difficult for them to reconcile. 11. As a matter of fact, husband is under a personal obligation to maintain his wife, whether he possesses property or not. Under the Hindu law a husband is also under a personal obligation to maintain his wife, “even if he has to do a hundred things which ought not to be done” as Maharashi Mannu says. The Hindu Adoptions and Maintenance Act 1956 was enacted to amend the codify the law relating to adoptions and - 6 - maintenance among Hindus, and it defines maintenance in Section 3 (b) to include (i) in all cases, provision for food, clothing, residence, education and medical attendance and treatment. The apex court in Komalam Amma versus Kumara Pillai Raghavan Pillai and others (2008) 14 SCC 345 while relying upon Mangat Mal versus Punni Devi (1995) 6 SCC 88 considered the question of maintenance and held that the maintenance, inter-alia, encompasses a provision for residence also. The maintenance is given, so that, a lady can live in the manner, more or less, to which she was accustomed. The concept of maintenance must, therefore, include provision for food and clothing and the like and taken into account the basic need of roof over the head. The provision for residence may be made either by giving a lump sum in money, or property in lieu thereof. It may also be made by providing, for the course of the lady’s life, a residence and money for other necessary expenditure. Thus In this relationship, obligation is legal and imperative one- not merely moral and optional because of their relationship. - 7 - 12. Therefore, fixing quantum of maintenance, in fact, should not be a matter of mathematical calculation but it is required to be fixed in such a way and is not to keep wife in a luxury and make separation profitable and the husband becoming destitute. Contra it is equally good as far as wife is concerned. She is also required to be provided maintenance by her husband to live a life with dignity and enable her to keep her body and soul together with reasonable amount, so that, she is not destituted to a mere scrap to heap of society. The reasonability of amount depends on various facts upon a gathering together of all the facts of the situation, the amount of free estate, the past life of the married parties and the families, a survey of the conditions and necessities and rights of the members and a reasonable view of the change of circumstances possibly required in future, regard being of course, to the scale and mode of living and to the age, habits, wants and class of life of the parties- Determination of the quantum of maintenance is not left to caprice but to the exercise of sound discretion by the Court. - 8 - 13. In the instant case, appellant has been deserted. She is living in the house of her parents. Respondent has not provided any separate residence to her. She is in old age. She remains ill. 14. Keeping in view over all aspect of the matter, status of the parties, and also the fact that the respondent also got retrial benefits, now he is getting pension. He is also earning from his agricultural property and also the fact that the respondent-husband remains ill and requires money for his medical treatment also, at the same time looking to the plight of the appellant-wife, who is in her old age and requires adequate food and proper maintenance, the reasonable amount of maintenance which is required to be paid to the appellant-wife would be Rs.3000/- per month inclusive of Rs.500/- which was awarded under Section 125 of the Code of Criminal Procedure to the appellant-wife in the present when the minimum wages are Rs.3000/- per month. 15. For the reasons aforesaid the findings of the learned trial Court on issue No. 1 are required to be modified to the above extent. Thus it is held that the respondent is liable to pay the amount of Rs.3000/- per month from the date of filing of the - 9 - suit, i.e. 1.1.2004 with costs and this maintenance shall be the first charge over the landed property of the respondent-husband as ordered/decreed by the learned trial Court. 16. In addition to above, respondent shall also pay the court fee as ordered by the learned trial Court which shall be recovered by the State Government as provided under Order 33 Rule 14 of the Code of Civil Procedure. 17. Let a copy of this judgment be sent to the Collector concerned by the Registry of this Court, for favour of information and necessary action at his end in view of Para 16 above. 18. The judgment and decree passed by the learned trial Court stands accordingly modified to the above extent. The appeal stands allowed to the aforesaid extent. September 3, 2010 (Surinder Singh), (cm) Judge