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2011 Supreme(P&H) 1734
IN THE HIGH COURT OF PUNJAB AND HARYANA
Before
The Hon’ble Mr. Justice Kanwaljit Singh Ahluwalia
Regular Second Appeal No. 949 of 2008
Yash Pal
v.
Kaushal Rani & Anr.
{Decided on 22/09/2011}
For the Appellant in RSA No.949 of 2008 and
for the respondent in connected RSAs.:Mr. Lokesh Sinhal, Advocate.
For the Respondents in RSA No.949 of 2008 and
for the appellants in connected RSAs.:Mr. Pavan Malik, Advocate.
Headnote:Maintenance—If document of income is withheld by husband, an adverse inference is to be drawn against him.
(A) Hindu Adoption and Maintenance Act, 1956, S.18--Maintenance--Salary Certificate--Onus of proof--Authenticity of salary certificate produced by aggrieved wife and minor son--Held; Court cannot ignore the fact that husband was in special knowledge of his income and therefore, it was incumbent upon him to prove that his income was either less or more than what was alleged by aggrieved wife--If document of income is withheld by husband, an adverse inference is to be drawn against him--Court therefore, is justified in drawing an adverse inference against defendant (husband) and he cannot be allowed, in a case of determining maintenance, to invoke doctrine of strict onus of proof upon plaintiff (wife)--Evidence Act, 1872, Ss.114(g) & 106. (Paras 27 & 28)
(B) Hindu Adoptions and Maintenance Act, 1956, Ss.18, 25--Maintenance--If document of income is withheld by husband, an adverse inference is to be drawn against him.
(C) Hindu Adoptions and Maintenance Act, 1956, Ss.18, 25--Maintenance--Enhancement of--Material change in circumstances--Factors considered are education of child who is a student of Class IX, current income of husband and escalation of price of essential commodities due to inflation--Hyper- technical contention raised by counsel for husband that the amount of maintenance awarded cannot be more than what was pleaded in the suit liable to be rejected. (Paras 30 & 33)
Second appeal--Plaint was instituted on 3/2/1999--A period of more than 12 years has elapsed and in the last 12 years circumstances have changed--Held; --Thus, taking into consideration salary certificate which depicts salary of husband in the month of July, 2010 as Rs.21,383/-, it can safely be held that from today onwards aggrieved wife and minor son are entitled to Rs.7,000/- per month (being one third of the salary) as maintenance.
Mr. Kanwaljit Singh Ahluwalia, J.: - This judgment shall dispose of three regular second appeals viz. (1) RSA No.949 of 2008 titled as ‘Yash Pal v. Kaushal Rani and another’, and (2) RSA No.3792 of 2008 and (3) RSA No.3793 of 2008 both titled as ‘Kaushal Rani and another v. Yash Pal’.
2. RSA No.949 of 2008 has been preferred by Yash Pal against his wife Kaushal Rani and minor son Kunal represented by his mother and natural guardian Kaushal Rani. RSA No.3792 of 2008 has been filed by Kaushal Rani (wife) and her minor son Kunal against Yash Pal, husband of appellant No.1 and father of appellant No.2. RSA No.3793 of 2008 is also filed by Kaushal Rani (wife) and her minor son Kunal against Yash Pal.
3. Yash Pal in RSA No.949 of 2008 has prayed that the judgment and order passed by the Court of Additional Civil Judge (Senior Division), Gurgaon on 20th August, 2007 while deciding the petition/suit for maintenance under Section 18 of the Hindu Adoptions and Maintenance Act, 1956 (hereinafter referred to as, ‘the Act’), whereby the Court had awarded maintenance to the plaintiff-respondents to the extent of Rs.4,000/- per month, be set aside along with the judgment and order dated 7th December, 2007, whereby the lower appellate Court held the aggrieved wife and her minor son entitled to maintenance @ Rs.2,500/- per month with effect from the date of filing of the petition before the trial Court i.e. 4th February, 1999 with yearly increase of Rs.250/- with effect from 1st January, 2000; 2001 and so on till the time the aggrieved wife disentitles herself as per law in claiming the maintenance.
4. In RSA No.3792 of 2008, a prayer has been made that the aggrieved wife and the minor child be allowed maintenance to the extent of 50% of income of the husband per month and furthermore, respondent (husband) be directed to pay interest @ 1% per month for the period the maintenance remained unpaid.
5. In RSA No.3793 of 2008, the aggrieved wife and the minor son have prayed that the appeal filed by the husband before the lower appellate Court, whereby the amount of maintenance was reduced be dismissed and that of the trial Court be restored.
6. To adjudicate the above said three appeals, it will be necessary to notice brief facts of the case. Counsel for the parties, during course of arguments, have provided a copy of the plaint, written statements and the replication to enable this Court to recapitulate the facts.
7. In the month of February, 1999, Kaushal Rani for herself and for her minor son Kunal had instituted a petition/suit for maintenance under Section 18 of the Act. In the petition/suit so filed, it was pleaded that Kaushal Rani was married with Yash Pal on 9th May, 1997 at Krishna Colony, Gurgaon, Tehsil and District Gurgaon. After the marriage, the plaintiff started cohabiting in her matrimonial home and due to consummation of marriage, Kunal-plaintiff No.2 was born on 11th January, 1998. It was specifically averred that husband Yash Pal was earlier married and had obtained a divorce at the time of marriage with plaintiff No.1-aggrieved wife Kaushal Rani. It was stated that due to greed and demand of dowry Kaushal Rani was ill-treated and subjected to cruelty which led her to approach the police authorities where a compromise was effected on 10th March, 1998. The compromise was not acted upon by the husband. Defendant (husband) being a habitual divorcee, who had divorced his earlier wife, had given beatings to plaintiff No.1-Kaushal Rani and she was turned out of her matrimonial home. Thus, she was left with no other option except to reside with her parents where she is residing since 14th February, 1998. It was pleaded that the husband was posted in CVD-3-SS-D at Delhi and his monthly salary on the date of institution of the plaint was Rs.6,000/- per month. Thus, maintenance of Rs.4,000/- per month was required for the plaintiff (wife) and the child, who are stated to be in need of food, clothing, amenities and facilities, an
