Family - injunction - Section 24of Hindu Marriage Act, 1955 and Order 39 Rules 1 and 2 of Code of Civil Procedure, 1908 - appeal by wife against decree of divorce - appellant wife prayed for restraining respondent husband from marrying during pendency of present appeal - respondent husband contended that if appellant wife succeed in present appeal then second marriage by him would be void and it would not have any effect on status of appellant and injunction in favour of appellant should not be granted - Court observed that if wife does not succeed in present appeal then status of second marriage by respondent husband would go unhindered but if she succeed then she is bound to face mental agony and status of second wife would also be in controversy - therefore balance of convenience in favour of injunction and thus injunction against husband granted.
Calcutta High Court
Chitra Sengupta vs Dhruba Jyoti Sengupta on 3 April, 1987Equivalent citations: AIR 1988 Cal 98, 92 CWN 54
Bench: A Bhattacharjee, A K Nayak
1. The wife-appellant, who has appealed against a decree of divorce passed against her, has filed this application for maintenance pendente lite and cost of litigation under Section 24, Hindu Marriage Act, as well as for an order of temporary injunction restraining the husband-respondent from marrying again during the pendency of the appeal. The petitioner should have filed two separate applications for these two reliefs; but that being a matter of mere form and procedure, if she can make out her case for both the reliefs, the same or any of them should not be denied to her on the ground that she has failed to file two separate sets of paper.
2. In opposing the application so far it relates to payment of maintenance pendente lite and cost of litigation, the learned Counsel for the husband-respondent has firstly con tended that the wife-appellant did not file any such application in the trial Court and that is a fact which must be taken into consideration against her claim in this application. We are, however, of opinion that if she is otherwise entitled to maintenance under Section 24, Hindu Marriage Act, the fact that she made no such application in the trial Court would he of no consequence.
3. The learned Counsel has next urged that under Section 24, Hindu Marriage Act, a spouse is entitled to maintenance pendente lite only if she or he "has no independent income sufficient for her or his support". The learned Counsel has pointed out that the wife-petitioner in this case has admittedly a regular gross monthly income of more than Rs. 1,900A per month and a net monthly income of not less than Rs. 1,200/- per month as an Upper Division Clerk and the learned Counsel has accordingly contended that she has sufficient independent income for her support and, therefore, is not entitled to any maintenance under Section 24, Hindu Marriage Act.
4. Class-less society being still a very far cry and the society we live in being class-ridden to the extreme, the question as to what income is sufficient for the support of a wife, would, whether one likes it or not, has to be determined with reference to the class she and her husband belong to. And, therefore, what may be considered to be sufficient for the support of the wife of a petty clerk would not be regarded to be sufficient for the support of the wife of a high-salaried big officer. 'To support" lexically means to supply with necessaries and as Section 68, Contract Act, would show necessaries in respect of a person must be "suited to his condition in life". And as was held by a Division Bench of this Court in construing that section in Jagon Ram v. Mahadeo Prosad, (1909) ILR 36 Cal 768 at p. 777, necessaries would include everything necessary to maintain a person in the state, station or degree of life in which he is and being thus a relative expression must be determined with reference to those factors. It has been held by an another Division Bench of this Court in Surendra Nath v. Puspa, (19781 2 Cal LJ 602 at p. 604; that the quantum of maintenance pendente lite under Section 24, Hindu Marriage Act, would depend on various factors "such as, the ability of the husband, the needs of wife, the social status, age, education and other requirements". It may also be noted that under Section 23(2), Hindu Adoptions and Maintenance Act, 1956, in determining the amount of maintenance to be awarded to a wife, the first thing the Court would have to regard to is"the position and the statys of the parties". We are of the view that if the amount of maintenance awardable to the wife is to depend on the status and station of the husband, the amount which can be regarded to be sufficient for her suprort must also depend on and vary with the status and station of the husband. We would accordingly hold that the expression "income sufficient for her support" in Section 24 of the Act would not mean only such amount as would be sufficient for the wife to eke out her existence at the subsistence level, but would cover such amount as would be necessary for the necessaries suited to the status and station which the wife would have enjoyed as the wife of the respondent-husband.
5. If this is, and we think that it is, the position in law, then we would be inclined to hold that even though the amount of about Rs. 1,900/- or even about Rs. 1,200/- would otherwise have to be taken as sufficient for the support of the petitioner by the ordinary Indian standard, the same cannot be regarded to be sufficient for her support in view of the class her husband belongs to and the status he enjoys. We proceed to state the reasons.
6. In her first affidavit the petitioner alleged that her husband is working as an Adviser to the World Bank and is posted in London and that his take-home salary after all deductions would in Indian currency work out to be more than Rs. 45,000/- per month. The husband has no doubt denied the same in his objection without however, stating where and how he is employed and what is his monthly income. In her supplementary affidavit sworn on 3-12-1986 the petitioner has now stated that as a result of "subsequent discovery of correct facts", she has come to know that her husband is now employed as an Executive of the well known "Bank of Credit and Commerce", also known as "Bank of Credit and Commerce International", which has its Head Office at No. 100, Leadenhall Street, London and is the recipient of annual salary-cum-emoluments in the region of 40000 a year, that being his net earnings after the deduction of Income-tax. She has stated further that her husband now resides at No. 21, Foscote Road, London NW 4 in a two-storied commodious building owned by him in one of "the prosperous and posh suburbs of London where only affluent people can and do reside", having "two expensive motor cars, one of which is a new Mercedes".
7. These allegations have not been specifically deined by the husband and all that he has stated with reference to these allengations in Paras 4 and 14 of his affidavit-in opposition sworn on 20-1-1987 is that these allegations having been made by the petitioner or information received from one Mrs. B. Chakraborty those are "hearsay evidence" on which court should place no credence" have and would have dealt with these allegations only if an affidavit containing them was sowrn by Mrs. Chakraborty herself.
8. It is true that these allegations have been sworn by the petitioner to be true, not to her own knowledge, but to her belief on the basis of information received by her from one "Mrs. Rule Chakraborty of 9, Concord House, 64, Coome Road New Maiden, Surrey, U.K.". But under Order 19, Rule 3, Civil P.C., in affidavits on interlocutory application, statements true to one's belief can legitimately go in provided the grounds thereof are stated and therefore the petitioner having clearly disclosed the source of her information and the name of the informant with the latter's detailed address, her statements do not suffer from any legal infirmity.
9. But that apart, monthly income of a husband may not very often be within the knowledge of the wife, particularly in a case like this where the relation is considerably strained and the spouses are living apart for a considerably long period, the wife staying in India and the husband in the United Kingdom. In a case like this, the amount of the husband's income would be within the special knowledge of the husband and when the issue before the Court is the amount of such income, the onus, under Section 106, Evidence Act, would be on the husband to disclose the same and if he fails to do so without any good reasons, the Court would be entitled to presume against him and to accept the allegations of the wife as to the amount of income derived from such reasonable sources as would be available to her. More so where, as here, the husband does not even deny on oath the correctness of the amount alleged by the wife to be his income but only seeks to take shelter behind legal technicalities.
10. We have reminded ourselves of the dictum of the Privy Council in Murugesam Pillai v. Gnana Sambandha Pandana, AIR 1917 PC 6 at p. 8, where it was observed as hereunder :
"A practice has grown up in Indian procedure of those in possession of important documents or information lying by, trusting to the abstract doctrine of the onus of proof, and failing accordingly to furnish to the Courts the best material for its decision. With regard to third parties, this may be right enough : they have no responsibility for the conduct of the suit; but with regard to the parties to the suit it is, in their Lordship's opinion, an inversion of sound practice for those desiring to rely upon a certain state of facts to withhold from the Court the written evidence in their possession which would throw light upon the proposition".
11. These observations were endorsed by the Privy Council again in Rameshwar Singh v. Bajit Lal Pathak, AIR 1929 PC 95 at p. 99 and have now been quoted with the approval by the Supreme Court in Hiralal v. Badkulal, . We are of opinion that as a matter of onus under Section 106, Evidence Act and also otherwise under the principle enunciated in the aforesaid decisions of the Privy Council and the Supreme Court it was for the husband to disclose his income and he not having done that and not having also specifically denied the amount alleged by the wife to be his income, we would have to go by such allegation for the purpose of this application.
12. And once we do that and accept the monthly income of the husband to be to the tune of 40000 per year, we cannot but hold that the income of the wife to the tune of Rs. 1,900/- (gross) or Rs. 1,200/- (net) per month is not sufficient for her support. As already indicated, the expression "sufficient for her support" is a relative term varying with the financial status or social station of the husband and for the wife of a husband having income to the tune of 40000 per annum, a monthly income to the tune of Rs. 2,000/- per month cannot be regarded to be sufficient for her support. To borrow from a Allahabad decision in Preeti v. Ravind, , followed in a Delhi decision in Sushma v. Suresh, AIR 1982 Delhi 176 at p. 177, there must be some balance and adjustment and the husband cannot live in a grand style like a Lord while the wife lives in chill penury like a maid. As pointed out by a Division Bench of this Court in Krishna Das Nandy v. Bidhan Chandra Roy, , though in a different context, reasonable requirement of a person would vary with the class, status and station to which he belongs.
13. The wife has claimed maintenance pendente lite at the rate of Rs. 7,000/- per month minus her own monthly income of Rs. 1,242/- i.e. Rs. 5,758/- per month. In her application supported by an affidavit sworn on 9-4-1986, she has stated in details as to how and why such amount would be required by her for rent of a two-roomed flat, for her food and clothing, for her transport, for her medical treatment, for electricity, gas and other necessities and she has specified separately the amounts that would be necessary on these different heads. Judged by the standard and status of her husband, the amount claimed does not appear to us to be unreasonable in any way. Under Section 36, Divorce Act, 1869, and under Section 39, Parsi Marriage and Divorce Act, 1936, such maintenance pendente lite can be awarded to the extent of one-fifth of the husband's net monthly average income and though Section 24, Hindu Marriage Act, fixes no such ceiling a Division Bench of this Court in Surendra Nath v. Puspa, (1970) 2 Cal LJ 602 at p. 604 (supra) has accepted such limit to be ordinarily a safe guide in the absence of special circumstances. The claim of the wife of Rs. 7,000/- per month falls far below such ceiling in this case where we have accepted the husband's income to be to the tune of 40000 per annum.
14. The petitioner has claimed Rs. 10,000/- as the litigation cost and has averred that she would need that amount for the purpose of prosecuting the present appeal including the present application. It has not been seriously disputed by the husband that the wife would have to incur such expenditure for prosecuting these matters if she wants to obtain the best possible legal assistance and, being the wife of a husband earning about 40000 per armum, we would like to think that she can reasonably claim to requisition such assistance. The husband has also admitted in Para 19 of his affidavit-in-oppositions worn on 28-5-86 that the petitioner has engaged one of the leading Advocates to conduct her case. As Davey, L. J., pointed out in Alien v. Alien, (1894) P. 134 at 140, in determining the amount to be awarded to a wife as cost of litigation, the income of the husband ought to be taken into consideration, for the means of the wife to prosecute or defend the case must in some measure depend on what is her husband's income and what is accordingly awardable to her as maintenance, because the wife of a rich man "is entitled to spend more ....... than the wife of poorer man". We accordingly allow the claim of the petitioner for Rs. 10,000/- as cost of litigation.
15. We would, therefore, allow the claim of the wife-petitioner for maintenance pendentelite and cost of litigation and would direct the husband-respondent to pay to the petitioner Rs. 10,000/- as expenses of the proceeding and also to pay to her month by month a sum of Rs. 5,758/- as maintenance pendente lite with effect from the date of this application. We further direct that maintenance for each month shall have to be paid within the last date of the succeeding month while the arrears of maintenance from the date of the application up to the date of this order shall have to be paid in ten equal monthly instalments and the amount of Rs. 10,000/- as expenses of the proceeding shall have to be paid within three months from the date of this order.
16. As to the prayer of the petitioner-wife for temporary injunction restraining the respondent-husband from marrying again during the pendency of this appeal, We are of the opinion that no such injunction can issue under the provisions of Order 39, Civil P.C., w hich is no doubt applicable to a matrimonial proceeding under the Hindu Marriage Act because of Section 21 of the Act. Rule 1 of Order 39 would not obviously apply as the said Rule would operate only when the question relates to some property in suit or some other property which the defendant is going to dispose of. And Rule 2 would also not apply as the said Rule would be attracted only when the suit or the proceeding itself is for restraining the defendant from committing a breach of contract or other injury of any kind. A matrimonial proceeding not being a proceeding of the nature specified in Clauses (a), (b) or (c) of Rule 1 or in Sub-rule (1) of Rule 2 of Order 39, there should be no doubt that temporary injunction cannot issue under the provisions of Rule 1 or Rule 2 of Order 39 to restrain a spouse from marrying again. But there should also be no doubt, particularly after the decision of the Supreme Court in Manohar Lal v. Seth Hiralal, , that even in a case not covered by the provisions of Order 39 of the Code, a Court can issue temporary injunction in the interest of justice in exercise of its inherent power if a proper case is made out therefor.
17. Now in the case at hand the wife has filed this appeal against the decree of divorce obtained against her by her husband and the only argument advanced by the learned Counsellor the husband-respondent against the prayer for temporary injunction is that since any second marriage by the husband during the pendency of the appeal would obviously be void if the appeal succeeds, an order of temporary injunction would be entirely unnecessary. We are, however, of the view that if the present appeal preferred by the wife succeeds and the impugned decree of divorce is set aside, then any second marriage by the husband during the pendency of the appeal, even though void, would cause great mental agony and much social ignominy to the wife. Then again, even though such second marriage would be void if the appeal succeeds, any issue born out of such marriage would, however, be legitimate under Section 16, Hindu Marriage Act with full right to inherit the husband's properties. We are inclined to think that the mental agony, the social ignominy and the legal wrangle and complication which such marriage would cause to the wife, in case her appeal succeeds, are sufficient to make out a case for an interlocutory injunction restraining such marriage during the pendency of the appeal. We would therefore allow this prayer also made by the wife and would issue an order of temporary injunction restraining the husband-respondent from contracting any marriage during the pendency of this appeal.
18. The application filed by the wife- petitioner is accordingly allowed with cost which is assessed at 30 gold mohurs. Prayer for stay of operation of this order is refused.
Ajit Kumar Nayak, J.
19. I agree.
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