G.C. Ghosh @ M. Karim Ghazi vs Sushmita Ghosh
2001 Latest Caselaw 130 Del

JUDGMENT

Arun Kumar, J.

1. The respondent/plaintiff had instituted a suit in this Court against the appellant/defendant. The suit a was filed under Section 18 of Hindu Adoptions and Maintenance Act, 1956 for maintenance and for separate residence. Appellant/defendant is the husband of the respondent/plaintiff. The respondent filed the aforesaid suit, inter alia, on the averments that the appellant had abandoned and deserted her in July, 1992 because he developed intimate relations with a lady named Vanita Gupta with whom he subsequently got married to after conversion into Islam religion with he mala fide intention of marrying for the second time. He in fact married her later. If it snot necessary to give other details. Purpose would be served by mentioning that after the trial of the suit, the learned Single Judge recorded the following conclusion and findings:

(1) The defendant in order to get married to Vanita Gupta converted himself into Islam religion.

(2) The plaintiff possesses a degree of M.A. in History. She is a house wife and she has never worked.

(3) The plaintiff has some financial support from her father and perhaps she has been able to maintain herself because of that financial support. From the defendant she was getting only Rs. 2,000/- per month. In Kulbhushan Kumar v. Raj Kumar, , Their Lordships of the Supreme Court observed that "even if the wife received some amounts from her father regularly, it was a bounty and not her income. Therefore,, it could not be taken into account under Section 23(20 (d) of the Act in determining the amount of maintenance.

(4) The defendant is a highly qualified businessman with BE and MBA degrees. He has a fairly large business.

(5) According to the defendant he is paying rent of Rs. 4,000/- per month for his apartment.

(6) The defendant is having a telephone at his residence.

(7) The defendant has also purchased a Maruti Van and maintaining the same.

(8) The defendant is also bearing expenses of eduction of two daughters of his second wife who are studying in the private English medium school.

(9) The defendant is paying Rs. 2,000/- per month as his share of the rent of the factory premises.

2. After discussing the means and living style of the appellant, the learned Single Judge passed a decree in favor of the respondent for maintenance at the rate of Rs. 5,500/- per month and also allowed her Rs. 2,000/- per month towards her separate residence i.e. a total sum of Rs. 7,500/- per month from the date of institution of the suit. The appellant had been paying a sum of Rs. 2,000/- as interim maintenance per month to the respondent as per the interim order of the Court which amount appellant was entitled to deduct from the total balance amount to be paid to the respondent. An escalation clause is also provided as per which the maintenance and separate residence would be increased by 12 per cent after every three years from the date of the judgment and decree dated 4th September, 1998. It is also ordered that if the amount is not paid within two months, the respondent shall be entitled to interest on this amount at the rate of 18 per cent per annum after expiry of two months. The amount towards future maintenance and separate residence, as per the judgment and decree, was to be paid on or before 10th of every calendar month.

3. This appeal is directed against the aforesaid judgment and decree.

4. It is a matter of record that the appellant has not fully complied with the judgment and decree and only some payments on adhoc basis have been made during the pendency of this appeal. In the order dated 14th March, 2000 passed in this appeal, it was noted that as per the decree a sum of Rs. 5,02,500/- was payable by the appellant to the respondent and another sum of Rs. 1,05,000/- had become due during the pendency of the appeal. As against that a sum of Rs. 1,34,000/- was paid during the pendency of the suit (at the rate of Rs. 2,000/- per month by way of interim maintenance) and another sum of Rs. 75,000/- during the pendency of appeal. On 22nd March, 1999 the appellant had given an undertaking that he would deposit 50 per cent of the amount due and payable under the decree and on this understanding respondent had stated that she would not execute the decree. As appellant did not adhere to his statement, by order dated 24th March, 2000 the respondent was relieved of her undertaking given on 22nd March, 1999 and was allowed to execute the decree. We are told that respondent had taken out the execution but she has not been able to recover the decretal amount as yet.

5. The learned Counsel for the appellant did not challenge the fixation of maintenance at the rate of Rs. 5,500/- per month from the date of suit. He did not even challenge the fixation of a sum of Rs. 2,000/- towards separate residence as fixed by the impugned decree. His only pleas was that the amount of Rs. 2,000/- fixed for the purpose of residence should not have been from the date of filing of the suit. The argument advanced is that the respondent had failed to show that she had in fact spent any amount by way of rent etc. in arranging the residence, and therefore, such an amount could not have been awarded for the period prior to the date of decree in the absence of respondent's showing actual expenditure incurred in this behalf.

6. This argument has not impressed us at all. Section 18 of the Hindu adoptions and Maintenance Act, 1956 entitles a Hindu wife to be maintained by her husband during her life-time. Sub-section (2) of Section 18 makes a specific provision entitling her to live separately from her husband without forfeiting her claim to maintenance on any of the seven eventualities provide in Clauses (a) to (g) of Sub-section (2) of Section 18. One of the justification provided in Clause (d) thereof for separate residence of a Hindu wife is when her husband has any other wife living. Clause (f) gives a right to a wife to live separately when her husband ceases to be a Hindu by conversion to another religion. Therefore the case of the respondent is covered by Sub-section (2) of Section 18 and her entitlement to live separately is not in dispute. The appellant is not only supposed to maintain her but he is under obligation to pay her for separate residence. On his failing to do so, respondent was compelled to file the suit claiming the maintenance and also expenses for separate residence. The appellant resisted her claim and that is why the trial proceeded. Naturally, there would be some time lag between the institution of the shit and the final decision thereof. That does not mean that expenses on account of separate residence, once the Hindu wife is found to be entitled to the same, are to be granted from the date of the judgment and they are to be granted only when the proof of such expenses having been incurred is furnished by the deserted Hindu wife. At the time of final decree, the Court is competent and within its jurisdiction to pass the decree from the date of institution of the suit. It is elementary aspect touching the jurisdiction of Civil Court. In fact there are judgments to the effect that maintenance can be granted even for the period anterior to the filing of the suit; albeit for a reasonable period prior to the filing of the suit. If the contention of the appellant is accepted, it would lead to anomalies and absurdities. If this is allowed, the argument can be extrapolated even to deny the claim for maintenance by arguing that the amount which is allowed for maintenance from the date of suit (or even from a date anterior thereto which is permissible) was in fact not spent by the Hindu wife during the period of litigation. It would also amount to allowing the husband to take advantage of his own wrong. The maxim no one can take advantage of his own wrong comes into full play. The appellant in the first instance refuses to maintain his wife and provide her a shelter . He marries another woman and walks out of the respondent's life. He does not give her maintenance or provides for separate residence to which she is lawfully entitled to thereby forcing her to live separately on her own. She is forced to resort to litigation and the husband comes out with the plea that the wife is not entitled to maintenance for the period during the pendency of the suit as she had allegedly not spent any such amount on her maintenance or on separate residence. This is wholly unjust. Section 18 is a beneficial provision for the purpose of securing a decent living for a Hindu wife and to ameliorate he sufferings of a deserted wife. They are to be construed in a manner which better serves the ends of fairness and justice. When such laws are made, it is proper to assume that law makers enact laws which the society considers as honest, fair and reasonable and thus justice and reason constitute the great general legislative intent in such a piece of legislation. The Courts must lean towards an interpretation which is just, reasonable and fair. If the interpretation suggested by the appellant is accepted, it would offend the very sense of justice. The appellant cannot avoid his obligation under the law by taking shelter of such ingenious pleas.

7. Accordingly we find no merit in this appeal. The same is hereby dismissed with costs. Counsel fee is fixed at Rs. 10,000/-.

8. Appeal dismissed with costs.