Please find Bombay High Court Division Bench and Supreme Court Division bench decisions on the subject. I hope these judgements would help you.
Rahul Bhupinder Luthra vs Mrs. Rashmi/Ria Rahul Luthra on 25 September, 2009
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Mumbai High Court
Bench: P B Majmudar, R V More
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
FAMILY COURT APPEAL NO. 91 OF 2009
with
CIVIL APPLICATION NO. 145 OF 2009
Rahul Bhupinder Luthra ) aged 28 years, occ. Business, residing at 155, Saket Nagar, ) Indore, M.P. 452 018 )...Appellant versus
Mrs. Rashmi/Ria Rahul Luthra ) Age 27 years, Occ. Housewife, ) 4B,601/2, Powai Vihar Complex, ) Powai, Bombay400 076 )...Respondent Mr. Y.R. Shah for the appellant.
Smt. T.F. Irani for the respondent.
WITH
FAMILY COURT APPEAL NO. 99 OF 2009
Mrs. Rashmi/Ria Rahul Luthra ) Age 27 years, Occ. Housewife, ) 4B,601/2, Powai Vihar Complex, ) Powai, Bombay400 076 )...Appellant versus
Rahul Bhupinder Luthra ) aged 28 years, occ. Business, residing at 155, Saket Nagar, ) Indore, M.P. 452 018 )...Respondent Smt. T.F. Irani for the appellant.
Mr. Y.R. Shah for the respondent.
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CORAM: P.B. MAJMUDAR &
R.V. MORE, JJ.
DATE: SEPTEMBER 25, 2009.
ORAL JUDGMENT: (Per P.B. Majmudar, J.)
With the consent of learned counsel appearing for both sides, these appeals are decided finally at the admission stage itself. Both the Appeals are accordingly admitted. Respective learned counsel appearing for the parties waive service.
2. Both these appeals are directed against the judgment and order passed by the Family Court in Petition No. A2441/2007 by which the Family Court dissolved the marriage by a decree of divorce by mutual consent and granted Rs. 8,000/ per month to the wife and Rs. 4,000/per month to the daughter towards their maintenance from the date of the petition.
3. The wife instituted the said petition before the Family Court at Bandra, Mumbai against her husband for a decree of divorce under Section 27 (d) of the Special Marriage Act, 1954 on the ground of cruelty. The marriage between the appellant and the respondent was solemnised on 16th November, 2005 at Bandra, Mumbai under the Special Marriage Act, 1954. Out of the said wedlock, a female child viz. Tiesha was -3-
born on 27th November, 2006. The custody of the said child is with the wife. During the pendency of the said petition, the parties entered into consent terms by which it was decided to take divorce by mutual consent and the question about maintenance and stridhan was agreed to be decided on merits by the Family Court. The Family Court accordingly decided the question regarding return of stridhan as well as the claim of the wife regarding maintenance for herself and her daughter. By the impugned order, the learned trial Judge passed a decree dissolving the marriage by mutual consent. The prayer of the wife regarding return of stridhan was rejected by the learned trial Judge. So far as the question of permanent alimony is concerned, the learned Judge of the Family Court directed the husband to pay Rs. 8,000/ per month to the wife and Rs. 4,000/ to the daughter towards maintenance payable from the date of the petition i.e. 20th November, 2007. It is the aforesaid order of the Family Court, Mumbai, dated 17th February, 2009, which is impugned at the instance of the husband in Family Court Appeal No. 91 of 2009, to the extent of seeking reduction of the maintenance at Rs. 2,000/ per month.
4. So far as the wife is concerned, she has also filed a separate appeal being Family Court Appeal No. 99 of 2009, against the rejection of her claim by the trial Court regarding return of stridhan, claim for separate residence and maintenance at the rate of Rs. 30,000/ per month.
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5. Since common point is involved in both these appeals, these appeals were taken up for hearing and are being disposed of by this common order. We have also heard the learned counsel appearing for the parties. We have gone through the evidence produced by the parties before the Family Court and have gone through the record and proceedings of the case.
6. Since the issue about divorce is already concluded by consent of the parties before the Family Court, in the present appeals this Court is required to consider the question as to whether the maintenance amount granted by the Family Court is required to be reduced or enhanced or to be maintained as it is. Since the point regarding separate residence is also raised by the wife, the Court is also required to consider as to whether the wife is entitled to have a separate residence and whether she is entitled to a decree for return of stridhan.
7. During the course of argument, Ms. Irani, learned counsel for the wife, submitted that in the petition before the Family Court, the wife had prayed that the husband may be directed to provide security of Rs. One crore towards inheritance claim of the minor child. She is not pressing the said prayer at this stage and seeks liberty to file separate proceeding in connection with the said prayer. In our view, since Family Court has also not gone into this question, this Court is not required to consider the said question. Liberty is, therefore, granted to the wife to take out separate proceedings in this behalf. -5-
8. The wife had claimed Rs. 30,000/ per month before the Family Court towards the maintenance for herself and her child. In order to prove her case, the wife has also tendered her evidence in the form of an affidavit. We have gone through the oral and documentary evidence on record with a view to find out as to whether the amount awarded by the Family Court is required to be enhanced or is required to be reduced or it is required to be kept as it is.
9. Before analysing the evidence, it is necessary to incorporate the consent terms arrived at between the parties before the Family Court. The same reads thus:
"1. Both the parties shall withdraw all the allegations made against each other in the above said Petition.
2. Both the parties have got married to each other on 16th November, 2005 and they are staying separately from each other since 24th April, 2007.
3. There is one female child born from this wedlock namely Tiesha, who is one year and five months old. At present custody of the daughter is with the petitioner mother and will continue to remain with the petitioner mother. Respondent Father shall avail access once in a month on Sundays at Bombay as per convenience of both the parties and the daughter.
4. Respondent has agreed to return all the articles and ornaments to the Petitioner as per list agreed by the Respondent. On next court date before the Marriage Councillor and the issue of remaining articles and ornaments may be decided by the Honourable court on merits.
5. Issue of maintenance/alimony may be decided by the -6-
Honourable Court on merits."
9. It is the case of the appellantwife that her husband is the Chairman of Imperial Academy located at Indore and is the owner of an export house of cars in Dubai and has various other businesses. In her affidavit, she has stated that the monthly income of the husband is Rs. 15 lakhs. It is the case of the wife that her husband is a NonResident Indian (NRI) and is travelling to Dubai every now and then in connection with his business. In her affidavit, she has stated that she has travelled to Dubai on three occasions by business class along with him for which she has also produced her passport to substantiate her say. As per the say of the wife, her husband is having two storeyed house at Indore, a house in Delhi, a lavish house in Dubai and two houses in Mumbai for which reference is made to incometax returns of the husband. It is also the say of the wife that under the Protection of Women from Domestic Violence Act, 2005, the husband is required to provide her with a house/place of residence which she has prayed in her separate application dated 21st April, 2008, under the said Act.
10. In the cross*xamination she has admitted the fact that she was working since 2007 and getting salary of Rs. 10,000/ per month. It is pointed out to the Court that in the typed copy it is wrongly transcribed thus: "I am working in Call Centre since June, 2007". The learned Judge has also accepted -7-
the said version and has found that she was working at the Call Centre in the past. In the cross*xamination she has denied the suggestion that she is the partner in the business with her father. In the cross*xamination, she has reiterated her say that the husband is working in Imperial Academy at Indore. She has denied the suggestion that he was getting Rs. 20,000/ per month and that he is not doing any other job. She has denied the suggestion that she received the articles which were given to her at the time of marriage. In order to substantiate her claim about stridhan, she had produced bills on record. In the cross*xamination she denied the suggestion that the said bills are false and bogus. On behalf of the wife, her father was also examined at Exh. 31. In his examinationinchief he has pointed out that a newspaper advertisement was given for the marriage of his daughter and on that basis ultimately the appellant and the respondent decided to marry. In the examinationinchief he has stated that at the time of marriage, a reception card was printed in which various businesses have been mentioned. The said witness has stated that a list of jewellery was shown to him. Nothing substantial has been brought out in the cross*xamination of the said witness. On behalf of the wife, one Rajinder Kapoor was examined at Exh. 38 in order to prove that the disputed jewellery was purchased from his shop. The said witness has said that the petitionerwife is his niece and that he is doing jewellery business in the name and style of Daulat Ram & Sons, Karol Baug, New Delhi. The said witness has produced original bill receipt book at Exhs. 40 and 41 and filed xerox copies of carbon -8-
copies of bills on record. The said witness has stated that the items at Exhibits35 and 36 are purchased from his shop. The price of jewellery at Exhibits35 and 36 i.e. photographs of the jewellery is Rs. 1,03,000/ as well as Rs. 50,000/. The said witness has pointed out that one bracelet was also given to the petitionerwife weighing 40 grams. The price of the same was around Rs. 50,000/. The said witness has stated that the said jewelleries were given to the petitioner after polishing the same and it was weighing 168 grams. In the cross*xamination, the said witness has admitted that he was not aware as to whether the marriage was performed on 16th November, 2005 under the Special Marriage Act at Bandra, Mumbai. He has stated in the cross examination that he had prepared the jewellery after receiving cash in advance. He has admitted the fact that in Exh. 41 it is mentioned that the D.D. was received on 6th December, 2005. He has denied the suggestion that he had prepared bogus bills.
11. On behalf of husband, affidavit in lieu of oral evidence was tendered wherein he has stated that the ornaments and articles were under the custody of the petitioner and the petitioner was using the same. It is his case in the affidavit that the petitioner took away some of her ornaments and articles to Mumbai and some of the articles were left behind at Indore. He has stated that he has signed the consent terms and accordingly agreed to return the list of the articles of the petitioner lying at Indore and no article left behind by the -9-
petitioner is lying at Indore which are either with him or with any of his family members. In his affidavit he has stated that his monthly income is Rs. 14,000/, which is reflected in the incometax returns produced along with the list of documents. He has stated that he is not the Chairman of Imperial Academy or any business of exporting of cars in Dubai. He has stated that he is not having any houses at Delhi, Mumbai, Indore or Dubai. In the affidavit he has stated that he is willing to pay maintenance to his daughter at the rate of Rs. 2,000/ per month which is as per his capacity. In his cross*xamination, he has stated that he has no idea as to what ornaments were given from his side to his wife. He has stated that he has no idea as to what articles she has taken with her. In paragraph 8 of the cross*xamination, he has stated that he can produce documents to show that he has obtained the house on rent. In paragraph 9 of the cross*xamination, he has stated that he is an NRI due to his father and whenever he went to Dubai, he stayed at his friend's house. He has further stated that his mother is having custody of house at Dubai and he cannot produce the papers. He has also stated in the cross*xamination that his mother is the owner of the Company which is mentioned in Exh. 48. In the cross examination, he has stated that his father has prepared a will and he can produce the same. He has stated in the cross*xamination that in his incometax returns, income from business is shown but he is not doing any kind of business. He has admitted the fact that an amount of Rs. 37,591/ is shown towards telephone expenses in the incometax returns. He has also stated in his cross -10-
examination in paragraph 10 that he has closed the accounts of three banks which he had shown in the incometax returns. He has stated that the amount towards the loan was shown for adjustment of the accounts when his father was alive.
12. On behalf of the wife, documentary evidence is produced in the form of email I.D. which is produced on record by the wife. The same is at Exh. 26 on the record. As per the same, the husband has given the following particulars " Rahul Luthra available for chat, male, Dubai, United Arab Emirates". In the said email account, his education is stated as Masters Decree, occupation as export house of cars in Dubai. Job descripttion is shown as "I own my Company". It is also mentioned that he is Chairman of Imperial Academy and is a great man. In the descripttion of home town it is stated as Indore, Mumbai, Delhi and Dubai. In the passion it is shown as cars and bikes. Musichiphop, rock. In the column of City, it is written as Dubai, United Arab Emirates. The wife has also produced incometax returns at Exh. 43. The copy of the incometax returns are made available to the Court in a small compilation by the learned counsel for the wife. At page 18 of the said compilation, his address is shown as Rahul Luthra, 9, Dhankunj, M.A. Road, Andheri (West), Mumbai. The incometax returns were filed from Mumbai. For the incometax assessment for the year 20052006, in the particulars about his capital account, in the column of particulars, an amount of Rs. 12,30,610/ is shown to have been received by -11-
way of gift in dollars and an amount of Rs. 12 lakhs is shown to have been gifted to the mother and father. In the said balancesheet, in the column of investment, Rs. One lakh towards N.S.C. is also shown. Telephone bill is also shown on the particulars of expenditure as Rs. 37,591/. Relying on the same, it is submitted by the learned counsel for the wife that the appellanthusband is a multimillionaire having huge properties at Indore, Mumbai as well as at Dubai. It is submitted that the learned Judge of the Family Court gravely erred in awarding only Rs. 8,000/ as the wife is entitled to have the same style of living at par with the life style of the husband. It is submitted that looking to the cost of living and looking to the fact that she is required to spend considerable amount towards the child and looking to the income of the husband which according to her is not less than Rs. 15 lakhs per month, the amount of Rs. 30,000/ claimed was most reasonable and the Family Court should have granted the same.
13. It is submitted by the learned counsel for the wife that the Family Court has not considered the voluminous evidence on record and though it has been found that the husband is not telling the truth before the Court in the matter of disclosure of his correct income, the learned Judge is erred in awarding only Rs. 8,000/ to the wife and Rs. 4,000/ to the child. The learned counsel submitted that there is no reason for the wife to make false case about the ornament and stridhan and in view of the independent evidence of the -12-
person who has sold the jewellery, the Family Court should have passed an order of handing over the said stridhan to the wife. It is submitted by her that the Family Court has gravely erred in rejecting the claim for residence altogether. In the consent terms it is clearly provided that the question of maintenance is kept open for consideration of the Court and that the prayer for separate residence can be said to be included in the prayer for maintenance and since the question of maintenance was required to be decided by the Family Court, the Family Court should have considered the claim for residence and should not have rejected the same on the ground that the said prayer has not taken care of in the consent terms. It is submitted by her that though separate proceedings have been taken under the Protection of Women from Domestic Violence Act, 2005, during the pendency of these matters, it came to the knowledge of the wife that the said prayer was rejected by the Family Court on the ground that it has become infructuous. The copy of the order dated 17th February, 2009 is kept on record of this Court which was also shown to the other side and even that order is part of the record and proceedings of the present case. The learned Judge by the order of even date on which day the main petition was decided, disposed of the same by a cryptic order stating that since the parties had agreed to take divorce by mutual consent, the application which is filed by the wife is an interim application, the same is not tenable. The application was, therefore, rejected on the ground that it is not tenable. -13-
14. The learned counsel for the wife vehemently submitted that since providing residence to a wife is required to be considered along with the maintenance, the Court should have considered the question about separate residence at the time of deciding the question about maintenance. In order to substantiate her case, she relied upon the decision of the Supreme Court in the case of Komalam Amma vs. Kumara Pillai Raghavan Pillai and others, reported in AIR 2009 S.C. Page 636 wherein it has been observed in para 9 as under. "9. Maintenance, as we see it, necessarily must encompass a provision for residence. Maintenance is given so that the 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 take into account the basic need of a roof over the head. 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. Where provision is made in this manner, by giving a life interest in property for the purposes of residence, that provision is made in lieu of a preexisting right to maintenance and the Hindu lady acquires far more than the vestige of title which is deemed sufficient to attract Section 14 (1)."
15. The learned counsel for the wife submitted that from the evidence on record it is established that the husband is having large properties and is a very wealthy man, yet he has tried to deprive the wife and the child in the matter of payment of appropriate maintenance amount.
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16. Mr. Shah, learned counsel appearing for the husband, on the other hand, submitted that the father of the appellanthusband was having large businesses and was having his business at Dubai also. However, according to him, after the death of his father, the business at Dubai was closed. Learned counsel further submitted that he was employed in the Imperial Academy and was getting salary of Rs. 14,000/. He has subsequently left that job. An additional affidavit is filed before this Court on 25th August, 2009 wherein he has stated that he is residing with his mother and he is not holding any landline telephone connection in his name. He has stated that he is having mobile connection bearing No. 9826377777 and he is paying the bills for the same. He has stated that he did not have any means to make payment at the rate of Rs. 12,000/ per month as ordered by the Family Court. However, as per the initial order of this Court, for payment of the arrears, he has borrowed a sum of Rs. 2,28,000/ from his friend Mr. Nalin Dave from Indore for which he has agreed to pay in instalment from his income with interest at the rate of 24 per cent per annum. In para 8 of the said additional affidavit he has stated that now he is not working with Imperial Academy and he has taken up a new job with M/s. Parkhya Solution as a Web Developer for a salary of Rs. 8,000/ per month. The said affidavit is filed obviously with a view to see that the amount granted by the Family Court at the rate of Rs. 12,000/ per month can be reduced. Mr. Shah has further submitted that the husband used to go to Dubai and after his father's death he had gone with his mother for the purpose of closing down -15-
the business as the business was run and managed by his mother. Learned counsel further submitted that before the death of his father, he executed a will and bequeathed all his properties to his mother. Learned counsel further submitted that the husband is willing to maintain his daughter for which he is ready to pay Rs. 2,000/ per month and since his wife is earning, she is not entitled to get any maintenance. Learned counsel further submitted that the wife is earning Rs. 10,000/ per month from a Call Centre and, therefore, no maintenance amount is required to be given to her. Mr. Shah has further submitted that the Family Court has rightly held that the evidence produced by the wife regarding stridhan is not believable and, therefore, rightly rejected the said claim.
17. We have gone through the evidence on record. In order to appreciate the real income of the husband, there are certain factual aspects which are required to be taken into consideration. Firstly, the following aspects are required to be taken into consideration.
(i) It is not in dispute that the husband is having NRI status and on perusal of the passport which is placed on record, it is clear that he is regularly visiting Dubai. Even after the death of his father he has regularly visited Dubai and the last entries in the passport are of June, 2009. (ii) From the email profile, copies of which are on record, it is clear that he -16-
himself has stated that he is doing business at Dubai and his occupation is mentioned as export house of cars in Dubai and he is the owner of his Company. He is also shown as Chairman of Imperial Academy and that he is having houses in four cities at Indore, Mumbai, Delhi and Dubai. (iii) The husband has not produced any evidence to show that the business at Dubai was run in the name of his father nor any evidence is produced to show that the ownership of the said business premises belongs to some one else.
(iv) In the incometax returns, it is clearly established that he was having considerable investment and that he had received gift of Rs. 12,34,610/ in dollars.
(v) Even in his incometax return, his address is shown as his Bombay premises at Andheri which house, according to the husband, belongs to his father.
(vi) No account books are produced prior to period 2005. Subsequent record is produced only when it was realised that the matrimonial proceedings are likely to be initiated against the husband.
(vii) Learned counsel for the respondent has fairly submitted that he is not in a position to point out as to when he had resigned from Imperial Academy where he was employed by his mother. It is not possible for us to believe that a person will leave the job in which he was getting salary of Rs. 14,000/ and will accept the job with a salary of Rs. 8,000/ per month. -17-
The said fact is stated by way of additional affidavit and it is obvious that only with a view to see that the amount granted by the Family Court is not enhanced by this Court that such additional affidavit is filed for which no particulars are given as to whether he was required to resign or whether he was removed from the earlier employment. Socalled will produced on record is highly doubtful as it is an admitted fact that the testator i.e. his father has not stated anything about his son and daughter. There is no reference about the son or daughter in the will at all. There is no reference of other properties in the said will. The said document seems to have been created only for the purpose of creating evidence to show that the appellanthusband has no business or income worth the name. The said will, as stated above, is an unregistered one and no probate of the same is obtained.
18. From the facts and circumstances of the case as well as on going through the oral and documentary evidence, we are satisfied that the appellant husband has resorted to falsehood and has tendered false evidence with a view to deprive his wife and daughter for getting reasonable amount of maintenance. It is relevant to note that in the additional affidavit filed before this Court, it is stated that the husband has paid arrears of maintenance of Rs. 2,28,000/ for which xerox copy of the promissory note is produced. As discussed earlier, the husband continued to visit Dubai from time to time and even after his father's -18-
death he visited Dubai. On the face of the evidence on record, as stated above, in our view, the reasonable inference which can be drawn is that the respondenthusband is having his own business at Dubai. Admittedly he is a N.R.I. So far as Imperial Academy is concerned, it is a big institution at Indore wherein, according to the wife, he is a Chairman. The learned advocate for the husband fairly pointed out that there is nothing on record to suggest that he was having any strained relationship with his father and mother. Considering the totality of the evidence, therefore, in our opinion, the husband has tried to fabricate the evidence in the form of socalled will of his father and an additional affidavit which is filed before this Court that he has taken loan for paying the maintenance arrears to his wife. The learned counsel for the appellanthusband has fairly admitted that the husband is not in a position to explain as to why no evidence regarding income prior to the year 2005 is produced nor any incometax returns prior to 2005 are produced. The will in question is not even exhibited. Even otherwise, no weightage can be given to the said document as it hardly inspires any confidence and even no probate is obtained to prove the socalled will. In the instant case, it is unfortunate that the husband who is having number of businesses has tried to deprive his child and wife of reasonable amount of maintenance. Even if there is no direct evidence, the Court can draw an inference from the evidence on record and also from the facts and circumstances of the case. It is also required to be noted that the husband is well qualified as he is B.E. in Computer Science and M.B.A. -19-
Unfortunately, he has filed an additional affidavit before this Court stating that he has left the services where he was serving under his mother at Imperial Academy and now he has joined at M/s. Parkhya Solutions, for which no evidence has been led and it is difficult to comprehend that a person will leave the job where he was getting higher salary and join for a job with lesser salary. He has not given any explanation at all in this behalf. This affidavit is filed only with a view to deny the wife and the child of reasonable amount of maintenance and cannot be accepted at all. It is also required to be noted that the respondent has not produced any appointment order showing that he was ever appointed in the Imperial Academy on the salary of Rs. 14,000/ per month. As pointed out earlier, if the business at Dubai was of his father, he could have led documentary evidence to show that the shop was in the name of his father at Dubai. The husband has not produced any documentary evidence about the Imperial Academy to show as to who was the Chairman of the said institution. As per the evidence, the husband was a N.R.I. and he is having resident permit of Dubai. It is also required to be noted that it has come in evidence that the wife was initially serving in the Call Centre and was earning Rs. 10,000/ per month but that job she has left and, therefore, in our view, on the date of the application she was not having any employment worth the name. Even as per the bank pass book produced by the wife, it is shown that she was earning Rs. 10,000/ per month only upto 2nd November, 2007 and not thereafter. Considering the totality of the evidence on record, we are of the opinion that the -20-
Family Court has rightly found that the respondent has not stated the correct facts. In paragraph 32, the Family Court has observed as under: " I have already held that the respondent has suppressed his income from the Court. When he is NRI and has several assets, in such circumstances it can be said that she is entitled for maintenance at the rate of Rs. 8,000/per month for herself. The daughter is hardly of two years old and, therefore, I grant maintenance to the daughter at the rate of Rs. 4,000/ per month and answer point No.3 in the affirmative and pass the following order."
19. Considering the said aspect, we do not find any substance in the appeal filed by the husband. However, in our view, from the evidence on record it is clear that looking to the income of the husband, the wife is entitled to get reasonable amount towards maintenance for herself and for her daughter as she is entitled to have the same standard of living which she was having at the time of subsistence of her marriage. Looking to the fact that the wife is also required to spend regularly for the education of the child and also the fact that when she was in the matrimonial home she had visited the husband thrice to Dubai in the business class, in our view, the claim made by the wife for the maintenance at the rate of Rs. 30,000/ per month is just and reasonable and is in consonance with the earning of her husband. Considering the said aspect, the order of Family Court granting Rs. 12,000/ to the wife and her daughter is, in our view, is required to be interfered with as from the evidence it is evident that the husband who is having sufficient income is required to maintain his -21-
wife so that she can continue to live in the same manner in which she used to stay while she was in the matrimonial home. In this view of the matter, we direct the husband to pay an amount of Rs. 30,000/ which would include maintenance for herself as well as for her daughter i.e. Rs. 25,000/ per month for the wife and Rs. 5,000/ per month for the daughter from the date of the filing of the application before the Family Court.
20. The next question is about return of stridhan. In this connection the wife has led evidence that part of the stridhan was received by her at the time of entering into compromise but for remaining stridhan her claim was kept alive and she was permitted to prove the same before the Family Court. In her evidence, she has clearly stated that part of stridhan for which evidence was led in the form of evidence of the shopkeeper from whom the ornaments were purchased is placed on record. Simply because the jewellery was purchased from the relative, it cannot be said that he is giving false evidence in this behalf. In his oral evidence at Exh. 38, the jeweller has brought the original receipt book and filed xerox copies of carbon copies of the bills on record at Exhibits40 and 41. The said witness has stated that items at Exhibits35 and 36 were purchased from his shop. The said witness has clearly stated in his evidence that he had given gold jewellery to the petitioner wife after polishing the same and it was weighing 168 grams. The said witness has stated that he was present at the time of marriage. Simply because a receipt is prepared in -22-
advance and when, according to the said witness, the ornaments were given at the time of marriage, the version of the said witness cannot be said to be not believable. Even if the parents of the wife had not personally visited the shop is no ground for coming to the conclusion that such ornaments must not have been given to the petitioner at the time of marriage. The said witness has also stated that he was not aware as to whether her marriage was performed under the Special Marriage Act but the fact remains that there was a marriage function held at Indore for which invitation cards were also produced on record. Therefore, there is nothing wrong, if the said witness has brought the ornaments with him at the time of attending the said function. It has come in evidence that the total weight of the said ornaments is 168 grams. Considering the evidence on record, the claim for the same is required to be allowed.
21. It is required to be noted that the learned Judge has negatived the claim about separate residence on the ground that in the consent terms she has not specifically mentioned this claim. In our view, the said finding cannot be upheld as in view of the judgment of the Supreme Court in the case of Komalam Amma (supra) maintenance includes claim for residence. However, since there is no satisfactory evidence on this point, we deem it proper to remit the matter so far as the aforesaid claim of residence to the Family Court with a direction to decide the said claim de novo, after allowing the parties to lead evidence in this behalf. The claim of the residence has not been examined at all by the Family -23-
Court and in this view of the matter, the matter is required to be remitted to the Family Court in this behalf. We may, however, clarify that our observations about the socalled will in question is only tentative and it will have no bearing in any other proceedings, if taken out in this behalf such as probate proceedings, etc. Our observations shall be confined only to the present proceedings in connection with granting appropriate amount to the wife and her daughter towards maintenance.
22. So far as the claim of the wife regarding depositing of Rs. One crore towards the benefit of the minor's estate is concerned, since the Family Court has not gone into that question and even otherwise that point cannot be decided in the present proceedings, it will be open to the appellant wife to take out separate proceedings in this behalf before the appropriate forum.
23. In view of the above, these appeals are disposed of by passing the following order.
(i) Appeal filed by the husband i.e. Family Court Appeal No. 91 of 2009 is dismissed.
(ii) Appeal filed by the wife i.e. Family Court Appeal No. 99 of 2009 is partly allowed and the wife is entitled to receive maintenance at the rate of Rs. 25,000/ per month for herself and Rs. 5,000/ per month for her -24-
daughter from the husband from the date of her filing of the application before the Family Court.
(iii) It is directed that the husband shall return to the wife stridhan articles weighing 168 grams or value of the same as per today's market rate on the aforesaid 168 grams of gold;
(iv) The matter is remitted to the Family Court for the purpose of deciding the claim of the wife towards separate residence. The Family Court shall allow both the parties to lead evidence in this behalf and decide the said aspect de novo within a period of six months from today. (v) Writ to be send down to the Family Court along with the record and proceedings forthwith.
24. In view of the above, no orders are required to be passed in Civil Application No. 145 of 2009. The same is accordingly disposed of.
25. At this stage, the learned counsel for the husband prayed that this order may be stayed for a period of four weeks from today. The said request is granted and the present order shall remain stayed for a period of four weeks from today.
P. B. MAJMUDAR, J.
R.V. MORE, J.
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Komalam Amma vs Kumara Pillai Raghavan Pillai & ... on 14 November, 2008
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The Indian Penal Code, 1860
Section 3 in The Indian Penal Code, 1860
Section 14 in The Indian Penal Code, 1860
Section 39 in The Indian Penal Code, 1860
The Hindu Succession Act, 1956
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Mr. V.Vasu, Aged 67 Years, ... vs Mr. Muralidharan, S/O.Manian on 13 January, 2009
Ashish Gupta vs Nalini Gupta on 13 April, 2009
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Supreme Court of India
Bench: A Pasayat, M Sharma
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. OF 2008
(Arising out of S.L.P. (C) No.3670 of 2005)
Komalam Amma .....Appellant Vs.
Kumara Pillai Raghavan Pillai and Ors. .....Respondents JUDGMENT
Dr. ARIJIT PASAYAT, J.
1. Leave granted.
2. Challenge in this appeal is to the judgment of a learned Single Judge of the Kerala High Court dismissing the second appeal filed in terms of Section 100 of the Code of Civil Procedure, 1908 (in short `the Code'). 1
The second appeal was filed by the appellant, who was defendant No.1 in O.S. No.426 of 1986 on the file of learned first Additional Munsiff's Court, Thiruananthapuram. She and the present respondent Nos. 2 and 3 were the defendants and respondent No.1 was the plaintiff, who is the husband of the appellant and father of respondent Nos. 2 and 3. The Suit was one for declaration of title in respect of Plaint-A Schedule Property where the defendants were residing and for recovery of possession with mesne profits.
3. The Trial Court as well as the first appellate court concurrently decreed the suit finding title over the plaint-A Schedule property with the plaintiff-husband. They held that Plaint-A Schedule property was purchased by him under Exh.A-1 (sale deed) utilising his own funds and the funds for the acquisition of the property were not provided by the present appellant- wife. The concurrent decrees passed by the courts below were assailed before the High Court.
4. Stand of the appellant and the present respondent nos.2 and 3 was that being the wife of the plaintiff, the present appellant is entitled to 2
reside in the matrimonial home situated in the plaint schedule property. It was also pointed out that she had already obtained a charged decree for maintenance over the schedule property as per the decree in OS No.139 of 1977. It was, therefore, her stand that the decree passed in the present case will result in conflicting decrees defeating the statutory charge under Section 39 of the Transfer of Property Act, 1882 (in short `the TP Act').
5. The High Court was of the view that even if the appellant had obtained a decree for maintenance against the husband, the decree passed in the case for recovery of possession does not in any way, defeat the right of the wife to enforce the charge. Section 39 of the T.P. Act will have operation only if the charged property is transferred in which case, the transferee who is not a bona-fide transferee for value without notice will be liable for the charge. The High Court further held that in view of the factual setting in the case when the relationship between the husband and the wife is estranged, the wife cannot still claim a right of residence in the matrimonial home so as to resist a decree for possession. Therefore, the second appeal was dismissed.
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6. Learned counsel for the appellant submitted that the view expressed by the High Court runs counter to the decision of this Court in Mangat Mal (Dead) and Anr. Vs. Punni Devi (Dead) and Ors. (1995 (6) SCC 88).
7. Learned counsel for respondent No.1, on the other hand, supported the judgment of the High Court.
8. In Mangat Mal's case (supra), this Court was considering the question whether maintenance encompasses a provision for residence. The case was considered in the light of Section 14(1) of The Hindu Succession Act, 1956 (in short `the Act').
9. Maintenance, as we see it, necessarily must encompass a provision for residence. Maintenance is given so that the 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 4
like and take into account the basic need of a roof over the head. 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. Where provision is made in this manner, by giving a life interest in property for the purposes of residence, that provision is made in lieu of a pre-existing right to maintenance and the Hindu lady acquires far more than the vestige of title which is deemed sufficient to attract Section 14 (1).
10. Mulla's Hindu Law (Sixteenth Edition) sets out the position in law prior to the Act. The Manager of a joint Mitakshara family is under a legal obligation to maintain all male members of the family, their wives and their children. On the death of any one of the male members he is bound to maintain his widow and his children. The obligation to maintain these persons arises from the fact that the Manager is in possession of the family property (para 543). An heir is legally bound to provide, out of the estate which descends to him, maintenance for those persons whom the late proprietor was legally or morally bound to maintain (para 544). A wife is 5
entitled to be maintained by her husband, whether he possesses property or not. When a man with his eyes open marries a girl accustomed to a certain style of living, he undertakes the obligation of maintaining her in that style (para 554). A widow who does not succeed to the estate of her husband as his heir is entitled to maintenance out of his separate property as well as out of property in which he was a co-parcener at the time of his death (para 559). A Hindu widow is, in the absence of special circumstances, entitled to reside in the family dwelling house in which she lived with her husband (para 562). The maintenance to be allowed to a widow should be such an amount as will enable her to live consistently with her position as a widow, with the same degree of comfort and reasonable luxury as she had in her husband's house, unless there are circumstances which affect, one way or the other, her mode of living there. In determining the amount of maintenance the Court should have regard, inter alia, to the provision and status of the deceased husband and of the widow and the reasonable wants of the widow, including not only the ordinary expenses of living, but what she might reasonably expend for religious and other duties incidental to her station in life (para 566). Where an undivided family consists of two or 6
more males, related as father and son or otherwise, and one of them dies leaving a widow, she is entitled to reside in the family dwelling house in which she lived with her husband. If the house is sold by the surviving co- parceners without necessity, the sale does not affect her right, and the purchaser cannot evict her until another suitable residence is found for her (para 573). A widow who is entitled to maintenance may sue, inter alia, for a charge on a specific portion of her husband`s estate for her maintenance and residence (para 579).
11. The Hindu Adoption & Maintenance Act, 1959, was enacted to amend and codify the law relating to adoptions and maintenance among Hindus, and it defines maintenance in Section 3 (d) to include "(1) In all cases, provision for food, clothing, residence, education and medical attendance and treatment."
12. In B.P. Achala Anand Vs. S. Appi Reddy and Anr. (2005 (2) SCALE 105) it was observed as follows:
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"Having said so generally, we may now deal with the right of a wife to reside in the matrimonial home under personal laws. In the factual context of the present case, we are confining ourselves to dealing with the personal law as applicable to Hindus as the parties are so. A Hindu wife is entitled to be maintained by her husband. She is entitled to remain under his roof and protection. She is also entitled to separate residence if by reason of the husband's conduct or by his refusal to maintain her in his own place of residence or for other just cause she is compelled to live apart from him. Right to residence is a part and parcel of wife's right to maintenance. The right to maintenance cannot be defeated by the husband executing a will to defeat such a right. (See: MULLA, Principles of Hindu Law, Vol. I, 18th Ed. 2001, paras 554 and 555) The right has come to be statutorily recognized with the enactment of the Hindu Adoption and Maintenance Act, 1956. Section 18 of the Act provides for maintenance of wife. Maintenance has been so defined in clause (b) of Section 3 of the Hindu Adoption and Maintenance Act, 1956 as to include therein provision for residence amongst other things. For the purpose of maintenance the term 'wife' includes a divorced wife."
13. These aspects have not been considered by the High Court. It will be appropriate for the High Court to consider the issues by re-hearing the appeal in the light of what has been stated in Mangat Mal's and B.P. Achala Anand's cases (supra).
14. We make it clear that we have not expressed any opinion on the merits by remitting the matter to the High Court. 8
15. The appeal is disposed off accordingly without any order as to costs.
..........................................J.
(Dr. ARIJIT PASAYAT)
..........................................J.
(Dr. MUKUNDAKAM SHARMA)
New Delhi:
November 14, 2008
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