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IN THE HIGH COURT OF ALLAHABAD
M. C. AGARWAL
NEELAM SINGH - Appellant
Versus
VIJAYA NARAIN SINGH - Respondents
FIRST APPEAL 518 Of 1992
Decided On : 01/13/1995
HINDU ADOPTIONS AND MAINTENANCE ACT - SECTION 18 - MAINTENANCE - WIFE - ENTITLEMENT - DESERTION - CRUELTY - INTERPRETATION - COUNTER-CLAIM FOR DIVORCE - ORDER 8 RULE 6-A OF THE CODE OF CIVIL PROCEDURE - APPLICABILITY - HINDU MARRIAGE ACT - SECTION 23-A - APPLICABILITY - JURISDICTION - COURT FEES ACT - SECTION 7(IV) - APPLICABILITY.
Fact of the Case:
The appellant-wife filed a petition under Section 18 of the Hindu Adoptions and Maintenance Act, claiming maintenance @ Rs. 1000 per month from her husband-respondent. The husband contested the petition and set up a counter-claim for divorce under Section 23-A of the Hindu Marriage Act.
Finding of the Court:
1. The counter-claim for divorce set up by the husband-respondent in his reply to the petition for maintenance was not maintainable as Section 23-A of the Hindu Marriage Act permits a counter-claim only in proceedings for divorce, judicial separation, or restitution of conjugal rights, and not in a proceeding for maintenance. 2. Rule 6-A of Order 8 of the Code of Civil Procedure, which allows a counter-claim in a suit, cannot be invoked in the present case as the claim for divorce is of a different character than a claim for maintenance and would make the proceedings heterogeneous. 3. The special provisions of the Hindu Marriage Act override the general provisions of the Code of Civil Procedure, and therefore, a counter-claim for divorce cannot be set up under Order 8, Rule 6-A in proceedings for maintenance. 4. The wife was entitled to maintenance under Section 18 of the Hindu Adoptions and Maintenance Act as the husband had deserted her by not keeping her with him at his place of posting and by neglecting her, and his conduct amounted to wilful neglect. 5. The wife was not entitled to maintenance on the ground of cruelty as there was no evidence of any physical or other cruelty causing a reasonable apprehension in her mind that it would be harmful or injurious to live with her husband. 6. The amount of maintenance claimed by the wife, Rs. 1000 per month, was reasonable and not burdensome to the husband, considering his salary and agricultural income.
Issues: 1. Whether the counter-claim for divorce set up by the husband-respondent in his reply to the petition for maintenance was maintainable? 2. Whether Rule 6-A of Order 8 of the Code of Civil Procedure could be invoked to set up a counter-claim for divorce in a proceeding for maintenance? 3. Whether the special provisions of the Hindu Marriage Act override the general provisions of the Code of Civil Procedure in relation to counter-claims? 4. Whether the wife was entitled to maintenance under Section 18 of the Hindu Adoptions and Maintenance Act? 5. Whether the wife was entitled to maintenance on the ground of cruelty? 6. Whether the amount of maintenance claimed by the wife was reasonable and not burdensome to the husband?
Ratio Decidendi: 1. A counter-claim for divorce can only be set up in proceedings for divorce, judicial separation, or restitution of conjugal rights under Section 23-A of the Hindu Marriage Act, and not in a proceeding for maintenance. 2. Rule 6-A of Order 8 of the Code of Civil Procedure, which allows a counter-claim in a suit, cannot be invoked in a proceeding for maintenance as the claim for divorce is of a different character and would make the proceedings heterogeneous. 3. The special provisions of the Hindu Marriage Act, including Section 23-A, override the general provisions of the Code of Civil Procedure in relation to counter-claims. 4. A Hindu wife is entitled to maintenance under Section 18 of the Hindu Adoptions and Maintenance Act if her husband deserts her or neglects her wilfully. 5. Cruelty, as a ground for maintenance under Section 18 of the Hindu Adoptions and Maintenance Act, requires evidence of physical or other cruelty causing a reasonable apprehension in the wife's mind that it would be harmful or injurious to live with her husband. 6. The amount of maintenance awarded to the wife should be reasonable and not burdensome to the husband, considering his income and financial circumstances.
Final Decision: The appeal was allowed. The judgment and decree passed by the court below were set aside. The husband's claim for a decree of divorce was dismissed. The wife's suit was decreed, and the husband was ordered to pay Rs. 1000 per month as maintenance from the date of presentation of the petition, with interest on arrears and future maintenance payments.
( 1 ) THIS appeal by the petitioner-wife has been preferred against the judgment and decree dated 15/05/1992 passed by the 1st Additional District Judge. Ghazipur whereby he Dismissed the wifes Petition under Section 18 of the Hindu Adoptions and Maintenance Act and decreed the counter-claim of the husband-respondent for divorce and further granting the wife-petitioner permanent maintenance and alimony @ Rs. 500. 00 per month from the date of the judgment.
( 2 ) I have heard Sri S. K. Varma, learned counsel for the appellant and Sri Sankatha Rai, learned counsel for the respondent.
( 3 ) THE appellant had filed a petition claiming maintenance @ Rs. 1000. 00 per month. Her case was that she was married to Vijai Narain Singh respondent according to Hindu religious rites in the year 1977 at village Manipur, Pargana Karanda District Ghazipur and after the marriage she started living with the respondent in his village Manihara Pargana Barhwal District Varanasi. Later the respondent got employment in the bank and for some time this couple lived at Chandauli District Varanasi. Later the respondent was transferred to Sadath Branch of the Union Bank of India and the two lived together at that place. In due course of time the respondent got some promotions and started getting handsome salary. The respondent, therefore, started neglecting petitioner-wife thinking that she was not sufficiently educated and lacked manners for appropriate social behaviour. He, therefore, stopped keeping the petitioner at the place of his employment and sent her to his village where she lived for some time. Finding herself neglected the petitioner-wife went to her parents house and started living there. In the absence of the petitioner the respondent wanted to marry some educated girl and the wife therefore, filed suit No. 13 of 1983 to restrain the husband respondent from remarrying. The suit was decreed on 15/09/1985. In his written statement filed in the aforesaid suit the husband is alleged to have made certain false derogatory statements against the wife causing her mental agony. It was further claimed that the husband-appellant filed suit No. 97 of 1983 in the Court of the Civil Judge, Varanasi for dissolution of the marriage. Subsequently the husband expressed regrets for his conduct and the said suit No. 97 of 1983 was compromised on 15/04/1985 and it was agreed that they will live together and the husband would not repeat undignified behaviour. After the aforesaid compromise petitioner again started living with the husband respondent in his village. The husband repeatedly assured the petitioner-wife that he would take her to the place of his employment where he himself resides but he never did so. It is alleged that occasionally the respondent came to his village but he neglected the petitioner and never had any contact with her as husband nor provided any means of maintenance. As a result the other members of the family of the husband also started neglecting the petitioner so much so that they would not accept food or water from the petitioner. On one occasion the husband is alleged to have given a beating to the petitioner without any reason at the instance of the family members and started, addressing the petitioner as chural. As a result of such behaviour the petitioner-wife claims to have left the husbands village about 1, 1/2 years prior to the petition and started living with her parents. Even then the husband did not establish any contact with the wife nor offered to provide any means of maintenance. It was claimed that she has no means of her own to maintain herself and she is living as a dependent of her parents. The respondent is alleged to have been employed as Branch Manager in the Union Bank of India at Marookpur District Varanasi and drawing a salary of Rs. 4500/ - per month. It was further alleged that the husband had agricultural income of about Rs. 1500. 00 per month from agricultural holding measuring about 25 Big
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