S.K. Sahoo, J.
"Marriage is that relation between man and woman in which the independence is equal, the dependence mutual and the obligation reciprocal."
-Louis K. Anspacher
1. Both the appeals arise out of a common judgment and order dated 27.07.2010 of the learned Judge, Family Court, Cuttack passed in C.P. No. 835 of 2008 and C.P. No. 382 of 2008.
The appellants in MATA No. 66 of 2010 i.e., Dipti Mohanty @ Kanungo (appellant No. 1) and Saktiswaroop Mohanty (appellant No. 2) have challenged the judgment and order dated 27.7.2010 of the learned Judge, Family Court, Cuttack passed in C.P. No. 835 of 2008 in dismissing the application filed by them u/s 18 of Hindu Adoptions and Maintenance Act, 1956 (hereinafter for short "Maintenance Act") wherein prayer was made for a direction to the respondent to pay Rs. 15,000/- per month towards the maintenance of the appellants as well as educational expenses of appellant No. 2 with effect from December 2007.
The appellant in MATA No. 67 of 2010 i.e., Dipti Mohanty @ Kanungo has challenged the same judgment and order dated 27.7.2010 of the learned Judge, Family Court, Cuttack passed in C.P. No. 382 of 2008 in allowing the petition filed by the respondent u/s 9 of Hindu Marriage Act, 1955 for decree of restitution of conjugal rights and directing the appellant to return to her matrimonial home with her son Saktiswaroop Mohanty within three months and further directing her to resume conjugal life with the respondent in three months.
Since both MATA No. 66 of 2010 and MATA No. 67 of 2010 arise out of a common judgment, both the appeals were heard analogously and common judgment is passed.
MATA No. 66 of 2010
2. It is the case of the appellants in MATA No. 66 of 2010 that the marriage between the appellant No. 1 and the respondent was solemnized on 28.4.1999 as per Hindu customs and rites at Cuttack and at the time of marriage, cash of Rs. 3 lakhs, gold ornaments of about 200 gms and other household articles were given and after the marriage, the appellant no. 1 came to stay at her in-law''s house at Jatni where she and the respondent lived together as husband and wife and their marriage was consummated. The respondent was serving as an Art Teacher in Jawahar Navodaya Vidyalaya at Zinc Nagar in the district of Sundargarh and after two months of marriage, the respondent took the appellant No. 1 to his service place where the couple lived together. During such stay, the appellant No. 1 was neglected and tortured by the respondent, for which the father of appellant no. 1 brought her back to his house in the month of November 1999. By that time the appellant no. 1 was pregnant and she was physically and mentally weak due to non-providing of proper food by the respondent and she was also not getting proper care and moral support from the respondent. Appellant no. 2 was born on 20.2.2000 at the parental house of appellant no. 1 and the respondent did not pay a single pie towards the medical treatment or the expenses as was incurred during child birth and also during 21st day celebration and all the expenditure were borne by the parents of appellant no. 1. In the month of July 2003, the respondent was transferred to Jawahar Navodaya School at Jharsuguda and with much reluctance, the respondent took the appellants to Jharsuguda wherein they stayed inside the school campus. During such stay, the respondent persuaded the appellant no. 1 to bring a cash of Rs. 5 lakhs from her parents to purchase a vehicle for business purpose and the father of the appellant no. 1 was compelled to pay such amount to the respondent so that the appellant no. 1 would live peacefully. The respondent persuaded the appellant no. 1 to start business to maintain herself and opened a stationary shop and S.T.D. Booth in the said school campus which was managed by the appellant No. 1. Even though the appellant No. 1 was looking after the business but the respondent was handling the cash and taking away all the profits and most of the time, the appellants were remaining without food and their health condition deteriorated. The respondent also maintained distance from appellant No. 1 and in spite of repeated persuasion of the appellant No. 1, the respondent did not change his attitude. The respondent compelled the appellant No. 1 to bring cash from her father to have a building or land at Cuttack town in his name. As the appellant No. 1 did not agree with such demand of the respondent, she was threatened to be killed. Ultimately the appellants were brought from Jharsuguda and they lived in a rented house at Rajendra Nagar, Cuttack and the household articles were also shifted from Jharsuguda to Cuttack. The respondent did not pay any amount to the appellants towards their day to day expenses and house rent. When the appellant No. 1 asked the respondent to pay the house rent, he told her to bring money from her father. The respondent was transferred from Jharsuguda to Nayagarh but he did not take the appellants with him and accordingly the appellants continued to maintain a very miserable and sorrowful life at Cuttack. Due to continuous physical and mental torture of the respondent, finding no other way out, the appellants came back to the parent''s house of appellant no. 1 with much mental agony but the appellant no. 1 was always apprehending danger to her life from the respondent. The appellant No. 2 was admitted in a School and the respondent used to threaten the appellant No. 1 to take away appellant no. 2 forcibly. Due to mental shock on account of the misbehavior of the respondent, the father of appellant no. 1 died and since 1st week of December 2007, the respondent finally deserted the appellants without any just reasonable cause. According to the appellants, the respondent was drawing a salary of Rs. 28,000/- per month as a Senior Art. Teacher in Jawahar Navodaya Vidyalaya, Nayagarh and he was having a homestead land and building. On the other hand, the appellant no. 1 was having no independent source of income to maintain herself and her child and accordingly they prayed for a direction to the respondent for payment of Rs. 15,000/- per month towards their maintenance as well as educational expenses of appellant no. 2 with effect from December 2007. The application was filed on 31.10.2008.
3. The respondent filed his written statement denying he allegation leveled against him by the appellants and stated that he was maintaining the appellants properly and comfortably and that he has spent all the amount at the time of birth of appellant no. 2 and also towards the medical expenses and for celebration of 21st day of appellant no. 2. The respondent took the appellant no. 1 to his different service places and both of them also visited many historical places and all the expenses were borne by the respondent. The respondent paid a sum of Rs. 2 lakhs through Demand Draft to the father of appellant No. 1. It is stated that without any just and reasonable cause, the appellant no. 1 left the rented house with appellant No. 2 and shifted all the household articles to her parental house without the knowledge and consent of the respondent and since 26.3.2008 there is no marital relationship between the appellant no. 1 and the respondent. The appellant no. 1 being misguided by one Nrupesh Biswal @ Babu was not keeping any relationship with the respondent. The respondent denied the quantum of his salary to be Rs. 28,000/- and further stated that he had to maintain his aged parents and unmarried sister and had also to incur expenses for their medical treatment. The respondent claimed to be paying installments regularly towards the loan amount incurred for the purchase of one Bolero XLI and one TATA load body standing in the name of the appellant No. 1.
MATA No. 67 of 2010
4. It is the case of the respondent in MATA No. 67 of 2010 that after his marriage with the appellant on 28.4.1999, they lived together in the official residence in the campus of Zinc Nagar, Sundargarh and out of their wed-lock a son was born on 20.2.2000. The matrimonial life was very happy and peaceful and in the year 2003 the respondent was transferred from Sundargarh to Jharsuguda and he shifted his family to the official residence at Jharsuguda and their son was admitted in a local school. As both the parties were not happy with the educational system at Jharsuguda, they decided to admit their son in a good school at Cuttack and accordingly a rented house was taken at Rajendra Nagar, Cuttack in the month of December 2007 with the help of one Nrupesh Biswal who was known to the appellant previously. The respondent was staying at Jharsuguda and the appellant and their son were staying at Cuttack and the said Nrupesh was regularly coming to the rented house. The respondent marked abnormal behavior of the appellant and requested the appellant not to entertain Mr. Biswal in the house but she did not oblige. The respondent was transferred to Nayagarh and when he suggested the appellant to accompany him to stay there, the appellant straightway denied to the suggestion of the respondent and continued to stay at Cuttack. It is further indicated in the application that the appellant made a false and frivolous allegation against the respondent and even though he requested his father-in-law and other family members of the in-law family to convince the appellant to shift to the newly transferred place at Nayagarh, they also misbehaved with the respondent for which the application for restitution of conjugal right was filed by respondent with a prayer for a direction to the appellant to return to the company of the respondent.
5. The appellant filed her written statement denying the averments made in the petition filed by the respondent and reiterated about the physical and mental torture given to her by the respondent and she further indicated that the respondent was always demanding money from her parents and accordingly prayed for dismissal of the petition filed by the respondent.
6. The learned Judge, Family Court, Cuttack tried both the cases i.e., C.P. No. 835 of 2008 and C.P. No. 382 of 2008 analogously.
From the side of the appellants, three witnesses were examined. The appellant no. 1 examined herself as P.W. 1, one Smt. Kalyani Kanungo, who is the mother of appellant no. 1 was examined as P.W. 2 and one Laxmi Narayan Hota was examined as P.W. 3. From the side of the respondent, the respondent examined himself as O.P.W. 1. Numbers of documents were exhibited from both the sides.
Analysis of materials in MATA No. 67 of 2010
7. Let us first analyze whether the learned Judge, Family Court was justified in allowing the respondent-husband''s petition for restitution of conjugal rights in C.P. No. 382 of 2008.
The learned counsel for the appellant submits that the learned Judge, Family Court should not have allowed the restitution of conjugal rights application, particularly when the conduct of the respondent was such that it was not possible on the part of the appellant no. 1 to live with him under the same roof.
The learned counsel for the respondent on the other hand supported the impugned judgment and submitted that the learned Family Court has analyzed the oral as well as documentary evidence in proper perspective and considered the submission raised by the respective parties correctly and rightly held that the appellant no. 1 has withdrawn from the society of the respondent without any reasonable excuse and the appellant no. 1 has failed to discharge the burden of proving the reasonable excuse for withdrawal from the society of the respondent.
Section 9 of the Hindu Marriage Act, 1955 which deals with restitution of conjugal rights reads as follows:-
"9. Restitution of conjugal rights.-When either the husband or the wife has, without reasonable excuse, withdrawn from the society of the other, the aggrieved party may apply, by petition to the district Court, for restitution of conjugal rights and the Court, on being satisfied of the truth of the statements made in such petition and that there is no legal ground why the application should not be granted, may decree restitution of conjugal rights accordingly. "
The section requires that if one of the party i.e. either the husband or the wife withdraws from the society of the other and that too without any reasonable excuse, then the petition for restitution of conjugal rights filed by the other side would be maintainable and once the Court holds that there was no reasonable excuse for withdrawal of one of the party from the society of the other, it may pass the decree of restitution of conjugal rights accordingly. It is the party withdrawing from the society of the other has to prove that there are reasonable excuses for him/her for such withdrawal and the burden of proof would lie on him/her.
A wife cannot be compelled to stay with her husband or with her in-laws under adverse circumstances, particularly when she has been physically and mentally tortured and has not been properly treated with love and affection by her husband and in-laws'' family members. She has to live her life in a dignified manner in the house of her in-laws and any kind of willful conduct on the part of the husband or her in-laws particularly affecting her character would be sufficient for the wife to withdraw from the society of her husband and to stay separately. No doubt, the burden is on the party who has withdrawn from the society of the other to prove the reasonable excuses, but strict proof of such matter should not always be insisted upon, in as much as what would be the proper reasonable excuse for a party to withdraw from the society of the other would depend upon the facts and circumstances of each case and no straight jacket formula can be laid down. It may vary from house to house or to person to person. It all depends upon the type of life the parties are accustomed to or their economic and social conditions. It may also depend upon their culture and human values to which they attach importance. In some cases, even a single incident would be sufficient for a party to withdraw from the society of the other. For example, if a wife does not feel safe in the company of her husband and in-laws and her life is in danger and she is physically and mentally tortured in connection with the demand of dowry or the husband brings unfounded allegations against her character or keeps illicit relationship with another lady then the wife would certainly be justified in withdrawing from the company of the husband. These grounds are not exhaustive, but have been given by way of illustration. Of course, the other side can adduce evidence to negative the grounds of reasonable excuse of withdrawal.
The terms ''reasonable excuse'' have not been defined under the Hindu Marriage Act, 1955. The aspect of ''reasonable excuse'' is a question of fact and each case is to be considered independently with reference to the facts and circumstances of that case. The petitioner in an application u/s 9 of the Hindu Marriage Act has to establish the following aspects:-
(a) That the respondent has withdrawn from the society of himself/herself;
(b) That such withdrawal was without reasonable excuse.
The term ''excuse'' is something more than a mere whim, fad or brain-wave of the respondent.
The object and purpose of marriage as declared by "Dharmasastra" was not merely to satisfy the mutual carnal desire of a man and woman though it did constitute the basis of normal desire for marriage. The coming together of a man and woman is necessary for the fulfillment of the three-fold ideals of life i.e., Dharma, Artha and Kama. The sum and substance of these three goals are that the husband and the wife should remain loyal to each other throughout their life, they should restrain their desire for material pleasure, wealth and prosperity and they should share happiness and misery in discharging their prescribed duties towards the family and the society. It is said that the marriages are settled in heaven. Our country believes in permanent and lifelong marriage bond between the husband and the wife.
8. In case of
"14.......It may be mentioned that conjugal rights may be viewed in its proper perspective by keeping in mind the dictionary meaning of the expression "conjugal". Shorter Oxford English Dictionary, 3rd Edn. Vol. I page 371 notes the meaning of ''conjugal'' as "of or pertaining to marriage or to husband and wife in their relations to each other". In the Dictionary of English Law, 1959 Edn. at page 453, Earl Jowitt defines ''conjugal rights" thus:
"The right which husband and wife have to each other''s society and marital intercourse. The suit for restitution of conjugal rights is a matrimonial suit, cognisable in the Divorce Court, which is brought whenever either the husband or the wife lives separate from the other without any sufficient reason; in which case the court will decree restitution of conjugal rights (Matrimonial Causes Act, 1950, S. 15), but will not enforce it by attachment, substituting however for attachment, if the wife be the petitioner, an order for periodically payments by the husband to the wife (S. 22).
Conjugal rights cannot be enforced by the act of either party, and a husband cannot seize and detain his wife by force (R.V. Jackson (1891) (1 QB 671)".
15. In India it may be borne in mind that conjugal rights i.e., right of the husband or the wife to the society of the other spouse is not merely creature of the statute. Such a right is inherent in the very institution of marriage itself.
See in this connection Mulla''s Hindu Law-15th Edn. p. 567-Para 443. There are sufficient safeguards in S. 9 to prevent it from being a tyranny. The importance of the concept of conjugal rights can be viewed in the light of Law Commission-71st Report on Hindu Marriage Act, 1955-"Irretrievable Breakdown of Marriage as a Ground of Divorce, Para 6.5 where it is stated thus:
"Moreover, the essence of marriage is a sharing of common life, a sharing of all the happiness that life has to offer and all the misery that has to be faced in life, an experience of the joy that comes from enjoying, in common things of the matter and of the spirit and from showering love and affection on one''s of spring. Living together is a symbol of such sharing in all its aspects. Living apart is a symbol indicating the negation of such sharing. It is indicative of a disruption of the essence of marriage-"Breakdown" - and if it continues for a fairly long period, it would indicate destruction of the essence of marriage-"irretrievable break down".
In case of
"Matrimonial matters are matters of delicate human and emotional relationship. It demands mutual trust, regard, respect, love and affection with sufficient play for reasonable adjustments with this spouse. The relationship has to conform to the social norms as well. The matrimonial conduct has now come to be governed by statute framed, keeping in view such norms and changed social order. It is sought to be control in the interest of the individuals as well as broader prospective, for regulating matrimonial norms for making of a well knit, healthy and not a disturbed and porous society. Institution of marriage occupies an important place and role to play in the society, in general"
9. Let us now analyze the available materials on record to decide whether there were reasonable excuses on the part of the appellant-wife to withdraw from the society of the respondent-husband.
In case of
The appellant who was examined as P.W. 1 has stated in her evidence affidavit, inter alia, that the during her stay at Sundargarh, the respondent neglected her by not providing proper food, taking care and giving moral support and most of the time the respondent was returning at late night and on being asked, he was scolding her. She stated that while she was staying at Sundargarh with her two months baby and remaining in the school campus, she and her baby used to suffer cold and fever but without providing treatment, the respondent was regularly sending her to Cuttack by bus and not providing any money for such treatment. She further stated that the respondent demanded Rs. 5 lakh from her parents to purchase a vehicle for business purpose which were complied with by her father. She further stated that she was compelled to manage a STD booth with school stationeries inside the school campus even though she had to take care of her small child. She further stated that she was alone doing all household work and the respondent was always threatening to kill her in case she raises her voice. She further stated that the respondent left her and her child in a rented house at Rajendra Nagar, Cuttack on the pretext of son''s proper education but did not pay any amount to meet day to day expenditure and also demanded house or land at Cuttack from her parents to be recorded in his name. The respondent was also not paying her house rent, for which finding no other alternative she along with her son came to her parent''s house in the month of May 2008. She has stated that the respondent has censured on her character by naming a person Nupesh Biswal who is a stranger to her.
In the cross examination, the appellant has stated that the respondent started assaulting her two months after marriage. She further stated that after she was brought to Cuttack forcibly, neither the respondent came to see her nor sent any money to her for maintenance. The appellant has categorically stated in the cross-examination that it was not possible on her part to go back to the respondent and to lead a happy conjugal life with him as he made her character assassination. She further stated that she did not go to the house of her father-in-law after the respondent neglected her as her mother-in-law told her over telephone not to come to her house. She has further stated that she was not willing to stay with the respondent even if he takes a house on rent to live with him at a place of her choice as the respondent was threatening to kill her.
The evidence of P.W. 1 is corroborated by her mother Smt. Kalyani Kanungo (P.W. 2) who also stated that appellant was always complaining before her that the respondent was neglecting her and their son. She also stated about the demand of Rs. 5 lakh raised by the respondent and fulfillment of such demand by her husband. She further stated that the respondent scolded the appellant and threatened to kill her and was also demanding a house or land in his name.
Thus the evidence of P.W. 1 and P.W. 2 make it clear as to how the appellant was physically and mentally tortured and humiliated in the hands of the respondent and how the respondent made her character assassination and how she was threatened to be killed. In such a situation when nothing has been elicited in the cross-examination of the appellant, it can be said that the appellant has proved as to what was the reasonable excuses for her to withdraw from the society of the appellant.
10. Though the respondent stated on affidavit that he availed the loan from State Bank of India, Jharsuguda and Union Bank of India, Jharsuguda and purchased one Bolero XLI bearing registration No. OR-23-A-0012 and another TATA load body in the name of appellant and paying monthly installment to the Bank and the appellant was enjoying the fruits of both vehicle but evidence of P.W. 3 indicates that at the instance of the respondent, a sale agreement was executed between him and appellant and since 1.9.2007 the Bolero Vehicle is with him and he is regularly paying the loan installment.
11. The respondent has stated in his evidence affidavit that the appellant introduced one Mr. Nrupesh Biswal as her brother and when the appellant behaved in an abnormal manner, he asked her not to entertain Nrupesh Biswal in the house. The plea taken by the respondent that a decision was taken by both of them to admit their son in a good school at Cuttack as they were not happy with the education system at Jharsuguda appears to be not correct in as much as the respondent has himself stated that there are number of English Medium School at Jharsuguda. The learned Judge, Family Court, Cuttack has observed that the appellant has failed to establish that it was a design on the part of the respondent to live separately from her on the pretext of admitting their son at Cuttack for her better future. When their son was prosecuting his study in Oriya Medium School at Jharsuguda and there were also a number of English Medium Schools at Jharsuguda, the decision of the respondent to leave appellant at Cuttack to look after the studies of their son and asking the appellant to take all the responsibilities single handedly is certainly an attempt/design of the respondent to part with the appellant no. 1.
The learned Judge, Family Court has further held that no medical document has been proved by the appellant that she was assaulted by the respondent at different times. The appellant has not stated that the respondent had assaulted her at different times mercilessly. Thus the question of proving any medical document does not arise. The learned Judge, Family Court further held that the appellant has not examined any neighbor to prove the cruelty on her by the respondent. When P.W. 2 has corroborated P.W. 1 regarding cruelty aspect, non-examination of the neighbor particularly in a case of this nature is not a vital. The learned Judge, Family Court has taken exception to the conduct of the appellant in not lodging any criminal case against the respondent in spite of his threat. Merely because the appellant did not lodge the F.I.R. or filed a complaint case against the respondent anticipating that everything would be set right in due course and by passage of time, no exception can be taken to be conduct of the appellant.
The learned Judge, Family Court is also not right in observing that there is no pleading in C.P. No. 835 of 2008 suggesting that the respondent has made the character assassination of the appellant.
In the written statement in C.P. No. 835 of 2008, the respondent has stated (in para-24) that the appellant No. 1 has deserted him being misguided by Nrupesh Biswal @ Babu.
In the evidence affidavit of the respondent in C.P. No. 835 of 2008/C.P. No. 382 of 2008, he has stated as follows:-
"8.........The opposite party with their son stayed at Cuttack in a rented house. Nrupesh Biswal, who was the nearby resident helped the opposite party at times and was regularly coming to the rented house.
9. That since opposite party introduced Mr. Nrupesh Biswal as her brother, I had never objected to his regular visit to our house at Cuttack.
10. That, after one month stay at Cuttack, the opposite party started behaving me in an abnormal manner, sometimes she questioned about the frequent visit from Jharsuguda to Cuttack and denied me for conjugal relationship as a result certain doubt developed in my mind and accordingly I requested the opposite party not to entertain Mr. Nrupesh Biswal in my house, but she reacted violently and directly told me that if Babu will not come to her rented house then she will continue her friendship outside without caring any body".
In the petition in C.P. No. 382 of 2008, the respondent has stated as follows:-
"8. That as per their decision both the petitioner as well as the opp. party decided to shift to a rented house at Cuttack and accordingly in the month of December 2007 with the help of one Nrupesh Biswal @ Babu who was previously known to the opp. party as well as her parental family members, one rented house at Rajendra Nagar was arranged.
9. That the petitioner with the help and cooperation of Nrupesh Biswal @ Babu shifted all the household articles, furnitures from Jharsuguda to Cuttack.
10. That since the petitioner was serving in the Novodaya Vidyalaya at Jharsuguda and the opp. party with their son was staying at Cuttack in a rented house, Nrupesh Biswal @ Babu who was the nearby resident was helping the Opp. party at times and was regularly coming to their rented house.
11. That since the Opp. party introduced Mr. Nrupesh Biswal as her brother, the petitioner had never objected to his regular visit to their rented house at Cuttack.
12. That after one month stay at Cuttack the Opp. party started behaving the petitioner in a abnormal manner, some time she questioned his frequent visit from Jharsuguda to Cuttack and denied the petitioner of his conjugal rights as a result certain doubt developed in his mind and accordingly the petitioner requested the Opp. party not to entertain Mr. Biswal in his house but she reacted violently and directly told the petitioner that even if "Babu" will not enter in her rented house then also she will continue her friendship outside without caring anybody."
In view of such averments made in the written statement in C.P. No. 835 of 2008 and in the petition in C.P. No. 382 of 2008 as well as in the evidence affidavit, it is very much clear that the respondent has made character assassination of appellant but he has miserably failed to establish any kind of relationship between the appellant and Babu @ Nrupesh Biswal.
Thus not only the appellant was physically and mentally tortured in the hands of the respondent but also the respondent indulged himself in the mudslinging and character assassination of the appellant and as such the appellant has every right to stay separately from the respondent in order to avoid further humiliation and to live her life in a decent and dignified manner. Accordingly, we are of the opinion that the appellant has proved the aspect of "reasonable excuse" on her part for withdrawal from the society of the respondent.
In view of our finding, we hold that the learned Judge, Family Court was not justified in allowing C.P. No. 382 of 2008 and observing that the respondent is entitled to a decree of restitution of conjugal rights and also directing the appellant to return to her marital home with her son and to resume conjugal life with the respondent.
Thus in view of our conclusion, MATA No. 67 of 2010 filed by the appellant-wife is allowed and the impugned judgment and order dated 27.7.2010 passed in C.P. No. 382 of 2008 of the learned Judge, Family Court, Cuttack is set aside.
Analysis of materials in MATA No. 66 of 2010
12. The application filed by the appellants u/s 18 of Maintenance Act vide C.P. No. 835 of 2008 was rejected on the ground that the appellant no. 1 has failed to discharge the burden of proving that she had reasonable excuse for withdrawal from the society of the respondent.
The learned counsel for the appellants in MATA No. 66 of 2010 challenged the dismissal of C.P. No. 835 of 2008 on the ground that the impugned judgment is totally silent about the merits of the maintenance case while allowing the case of restitution filed by the respondent and the simple dismissal order passed without giving any reasonable cause is totally illegal, erroneous and misconceived. It is further contended that when the respondent has made allegation of illicit relationship between the appellant no. 1 and another and made her character assassination, but failed to prove the same and when the respondent had subjected her to cruelty and torture, the appellant no. 1 has every right to stay separately and claim maintenance. It is further contended that as the appellant no. 1 has no means to maintain her as well as appellant no. 2 and appellant no. 2 is prosecuting his studies in a school, the learned Judge, Family Court should not have rejected the maintenance application and as such the impugned judgment suffers from non-application of mind.
The learned counsel for the respondent supported the dismissal order and contended that the appellants are not entitled to maintenance under the facts and circumstances of the case.
As we have held that there was reasonable excuse on the part of the appellant no. 1-wife for withdrawal from the society of the respondent husband, she has every right to stay separately and claim maintenance for herself and for the minor son (appellant no. 2) and for the educational expenses of the appellant no. 2.
Section 18 of Maintenance Act confers a right on a wife to be maintained by her husband during her life time. According to Mulla, right of wife for maintenance is an incident of the status or estate of matrimony and a Hindu is under a legal obligation to maintain his wife. (see Mulla, Principles of Hindu Law, Volume-I, 18th E. 2001, Pp-454, 455).
No doubt, the appellants have filed an application only u/s 18 of Maintenance Act which deals with maintenance of wife whereas section 20 of the said Act deals with maintenance of children and aged parents. Merely because section 20 has not been indicated in the cause title, prayer of appellant no. 2 cannot be turned down particularly when the contents of the application as well as the prayer portion clearly mention about such aspect.
In case of
"10. Maintenance has not been defined in the Act or between the parents whose duty it is to maintain the children. Hindu Marriage Act, 1955, Hindu Minority and Guardianship Act, 1956, Hindu Adoptions and Maintenance Act, 1956 and Hindu Succession Act, 1956 constitute a law in a coded form for the Hindus. Unless there is anything repugnant to the context, definition of a particular word could be lifted from any of the four Acts constituting the law to interpret a certain provision. All these Act are to be read in conjunction with one another and interpreted accordingly. We can, therefore go to Hindu Adoptions and Maintenance Act, 1956 (for short the "Maintenance Act") to understand the meaning of the "maintenance". In clause (b) of section 3 of this Act, "maintenance" includes (i) in all cases, provisions for food, clothing, residence, education and medical attendance and treatment; (ii) in the case of an unmarried daughter also the reasonable expenses of an incident to her marriage and under Clause (c) "minor" means a person who has not completed his or her age of 18 years. u/s 18 of the Maintenance Act, a Hindu wife shall be entitled to be maintained by her husband during her life time. This is of course subject to certain conditions with which we are not concerned. Section 20 provides for maintenance of children and aged parents. Under the section, a Hindu is bound, during his or her life time, to maintain his or her father or mother. Section 20 is, therefore, to be contrasted with section 18."
Law is well settled that while fixing the quantum of maintenance, the following significant points should necessarily be taken into account such as (i) position and status of the parties (ii) reasonable wants of the claimant towards food, clothing, shelter and medical attendance (iii) income of the respondent (iv) income, if any of the claimant (v) number of persons the respondent is obliged to maintain.
The respondent admits in his evidence affidavit dated 4.5.2010 that he is working as an Art Teacher at Jawahar Navodaya Vidyalaya and his monthly salary is Rs. 24,000/-. The appellants have filed an information sheet obtained from the Principal, Jawahar Navodaya Vidyalaya, Tarbha in the district of Sonepur obtained under RTI Act indicating therein that the gross salary of the respondent who is serving as an Art Teacher in the said institution is Rs. 50,110/- for the month of July 2014 and the net salary is Rs. 45,117/-. Though according to the respondent, he is spending Rs. 5000/- for his aged parents and invalid sister but nothing has been proved to establish the same. The evidence on record further indicates that the appellants have no means to maintain themselves. The appellant No. 2 is now reading in School. Appellant no. 1 has categorically stated that she is maintaining a miserable life and unable to bear the study expenses of appellant no. 2. Considering the requirement of the appellants for their maintenance and also the educational expenses of appellant no. 2 Shaktiswroop Mohanty vis-�-vis the income of the respondent, we direct the respondent to pay a sum of Rs. 15,000/- per month to the appellant no. 1 towards the maintenance of both the appellants as well as for the educational expenses of appellant no. 2.
Accordingly, MATA No. 66 of 2010 is allowed. The impugned Judgment and order dated 27.7.2010 passed in C.P. No. 835 of 2008 by the learned Judge, Family Court, Cuttack is hereby set aside.
The respondent is directed to pay monthly maintenance of Rs. 15,000/- to the appellant no. 1 from 31.10.2008 i.e., the date of filing of the application vide C.P. No. 835 of 2008 for the maintenance of the appellants as well as for the educational expenses of appellant no. 2. The amount already paid by the respondent to the appellants towards maintenance, if any, will be adjusted accordingly. The arrear amount is to be paid by the respondent to the appellant no. 1 within a year from today in six equal installments. The respondent shall go on paying the monthly maintenance regularly in addition to the payment of arrear dues.
With the aforesaid observation, both the appeals are allowed.
Vinod Prasad, J.
I agree.
