Inveighing the order 23.10.2008 passed in I.A.No.163 of 2007 in HMOP No.89 of 2007 by the Family Court, Salem, this civil revision petition is focussed.
2. The gist and kernal, the pith and marrow of the relevant facts, which are germane for the disposal of this revision petition, would run thus:
The revision petitioner herein filed the FCOP.No.89 of 2007 before the Family Court, Salem, seeking divorce under Section 13(1)(i-a) of the Hindu Marriage Act on the ground of cruelty. The respondent filed the I.A.No.163 of 2007 under Section 24 of the Hindu Marriage Act seeking interim maintenance for herself and in favour of the minor child born to the petitioner and the respondent. During enquiry, the revision petitioner examined one Yuvaraj as R.W.1. Ultimately the Family Court awarded Rs.5000/- per month payable by the revision petitioner in favour of the respondent towards interim maintenance of the respondent and the minor child, in addition to having awarded a sum of Rs.5000/- towards litigation expenses payable by the husband to the wife. Being disconcerted and aggrieved by the order of the Family Court, this revision is focussed on various grounds, inter alia thus:
The order of the Family Court is against law and weight of evidence, as without any material evidence to prove the financial wherewithal of the husband, he was directed to pay such a huge sum as interim maintenance and costs. Even though the revision petitioner disowns the minor child as that of his, nonetheless the Family Court simply ordered maintenance to be paid by the revision petitioner in favour of the respondent and the minor child. The Family Court failed to take into account that every citizen had to file nil income tax returns and that simply because Income Tax returns are alleged to have been filed by the revision petitioner, there is no presumption that he had huge income.
4. Heard the learned counsel for the petitioner. However, despite printing the name of the counsel for the respondent and the name of the respondent, no one appeared.
5. A poring and perusal of the relevant records including the copy of the order of the Family Court would amply make the point clear that the relationship between the revision petitioner and the respondent is an admitted one; however the revision petitioner would disown his paternity towards the minor child; he would also contend that his monthly income is only Rs.1,500/- and that the respondent is earning a sum of Rs.4,500/- per month.
6. At this juncture my mind is redolent and reminiscent of the following decision:
(2003) 10 SCC 228 Amarjit Kaur vs. Harbhajan Singh, an excerpt from it would run thus:
8. Section 24 of the Hindu Marriage Act, 1955 empowers the court in any proceeding under the Act, if it appears to the court that either the wife or the husband, as the case may be, has no independent income sufficient for her or his support and the necessary expenses of the proceeding, it may, on the application of any one of them order the other party to pay to the petitioner the expenses of the proceeding and monthly maintenance as may seem to be reasonable during the proceeding, having regard to also the income of both the petitioner and the respondent.
7. The above said decision would squarely be applicable to the facts of this case. Simply because the husband disowns the paternity of the child imputing adultery on the part of the wife, virtually, the Family Court is not handicapped in awarding interim maintenance. The contentious issues are to be decided only in the main FCOP and not in the interim application.
8. I would like to refer to
Section 112 of the Indian Evidence Act, which is extracted here under for ready reference:
"112.Birth during marriage, conclusive proof of legitimacy.-The fact that any person was born during the continuance of a valid marriage between his mother and any man, or within two hundred and eighty days after its dissolution, them other remaining unmarried, shall be conclusive proof that he is the legitimate son of that man, unless it can be shown that the parties to the marriage had no access to each other at any time when he could have been begotten."
9. A bare perusal of the averments in the FCOP itself would indicate and evince, that during the wed lock of the petitioner and respondent alone the child was born. As such, while considering the interim application for maintenance, the contention of the revision petitioner that the child was not born to him cannot be an embargo for awarding maintenance payable by the revision petitioner in favour of the minor child and it is for the revision petitioner to prove his plea during the enquiry in the main FCOP. As such, the liability of the revision petitioner to pay interim maintenance to his minor child subsists, as correctly and appositely held by the lower Court.
10. Ground No.10 of the grounds of revision is extracted here under for ready reference:-
"10.The Court below failed to see that every citizen had to file at least NIL income returns and that filing tax returns would not pre-suppose a huge income."
11. I am at a loss to understand as to how such a ground could be set out before this Court. A mere reading of the relevant provisions of the Income Tax Act would demonstrate and indicate that there is no necessity that every citizen had to file Income Tax returns. If at all the income of a person exceeds a particular limit, only such person should file return irrespective of the fact whether income tax is due and payable or not relating to an assessment year. As such, the revision petitioner's implied admission would evidence that he is an income tax assessee and there is no shard or shred of reasons available as to why he has not filed any of the copies of the returns before the lower Court to highlight his actual income.
Section 106 of the Indian Evidence Act would warrant the revision petitioner to produce such evidence, but he failed to do so. Hence, in such circumstance, adverse inference could rightly be drawn to the limited extent that the revision petitioner did not want to disclose his real income. Whereas, the respondent/wife would come forward with the categorical statement that she is not working any where and earning. In such a case, the burden of proof is on the petitioner to prove the place in which she is working and earning. In the absence of such evidence, I could see no infirmity in the order passed by the lower Court.
12. The affidavit of the wife, accompanying the I.A.No.163 of 2007, would display and indicate that the petitioner is doing business and earning. We cannot expect a hapless and helpless wife and child to run from pillar to post to gather particulars relating to the income of the husband. The Family Court considering the over all circumstance involved in the case felt that the husband i.e. the revision petitioner is capable of paying a sum of Rs.5,000/- per month as interim maintenance towards the respondent and the minor child.
13. It is a trite proposition of law that the wife and child of an individual is entitled to live incommensurate with the status of the person concerned. Here my discussion supra would show that the husband is an income tax assessee, but he has not chosen to disclose his actual income. In such a case, it could rightly be understood that the revision petitioner's wife and child are entitled to lead a decent life. In the present day cost of living, the wife and the child would not be able to live even without a sum of Rs.65/- to Rs.70/- per day, which would include all expenses towards food, shelter and clothing and they should also meet their travelling expenses, medical expenses and other unforeseen expenses. As such, even taking the least, each one of the petitioners would require at least a sum of Rs.65/- per day and accordingly if worked out it would come to Rs.1950/- per month. Towards unforeseen expenses each of them would require additionally a sum of Rs.50/-per month and as such, each of them requires at least a sum of Rs.2000/- per month.
14. In the result, the sum of Rs.5000/- awarded by the Family Court towards maintenance in favour the wife and the minor child is reduced to Rs.2000/-per month in favour of each of them, totalling to Rs.4000/- per month.
15. The awarding of a sum of Rs.5000/- towards cost of litigation could be reduced to Rs.3000/-, as in a matter of this nature, awarding such amount would meet the ends of justice.
16. Accordingly, the civil revision petition is partly allowed to the extent of reducing the maintenance from Rs.5000/- to Rs.4000/- per month and reducing the cost of litigation from Rs.5000/- to Rs.3000/- and the rest of the Family Court's order would require no interference. No costs. Consequently, connected miscellaneous petition is closed.
Msk To The Family Court, Salem