1983 Supreme(MP) 192

M. D. Bhatt, J.
Vijay Shankar V. Shashi Prabha
Cr. R. No. 39 of 1983 (J); Decided on 14-7-1983.

Headnote:Criminal P. C., 1973 -- S 125 -- quantum of maintenance -- determination of amount more than claimed -- cannot be awarded -- wife is not supposed to know actual income of husband -- husband is under obligation to prove the same.

        The wife, alleging neglect and refusal on the part of the husband, to maintain her and the child, claimed the monthly maintenance amount of Rs. 200/- for her own self and Rs. 50/- for her minor daughter Ku. Anju on the premise that the husbands income from service in the railways was Rs. 450/- p. m. The husband, apart from refusing the claim for maintenance, had contended that his monthly salary was about Rs. 265/- and that, he was also required to maintain his parents, one son and one sister. The trial Court, holding the husbands salary at Rs. 680/- per month on his own admission in evidence, and equally considering the factum of dependency of his son and parents on him, granted the monthly maintenance amount of Rs. 150/- for the wife and Rs. 100/- for the minor child, such amount being payable from the date of the application i.e. 24-1-1980.

        Held : Coming to the question of quantum of maintenance in the present case, no doubt, the wife has pleaded in para 10 of her petition that the husbands income from service in the Railways is Rs. 450/- per month. As a matter of fact, the wife is not expected to know the exact income of the husband, it is only the later who can provide positive proof regarding his exact income, and more so, when he is a Govt. employee in the Railways. It is actually for him and not for the wife to furnish reliable proof regarding hill income from salary. The husband, no doubt, in his pleading, has stated his monthly income to be about Rs. 265/-. Here too, in his pleading, he is quite vague, because he has mentioned only his approximate income and not his exact income. It is obvious that the husband had been deliberately evading to mention his exact income from service in the Railways. Anyway the husband, in his examination-in-chief itself, is found to have somehow, made a clean statement regarding his monthly income to the effect, that in all. he gets Rs. 680/- per month by way of his salary (para 10 of NAW-1). His such averment in the matter of his salary can not be overlooked, particularly when he has not produced any other documents in refutal of his such averment, if it were a accidental slip on his part and that too, wrontly. Therefore whatever may be the wifes opinion or her estimate regarding her husbands income, the husbands own averment on oath which shows much larger income than what the wife had pleaded, has to be given due weight, and it has to be held that the husband who was a Mechanic in the Railways was drawing Rs. 680/- per month, and even otherwise, if the same is taken to Rs. 450/-, as pleaded by the wife, the monthly maintenance amount of Rs. 150/-, which has been granted to the wife, is in no any, excessive and is rather quite modest, looking to the high cost of Li"Ving and day-to-day rising prices. The monthly maintenance amount as allowed by the trial Court for the wife is less than, what was actually claimed by the wife. It is a cardinal principle that amount higher than the claim, as actually laid in the pleadings, cannot be granted.

        However, the amount of monthly maintenance, granted to the daughter Ku. Anju needs to be modified for the obvious reason that the claim as laid with regard to her, is only Rs 50/- per month, whereas the monthly maintenance amount as granted to her is Rs. 100/. The monthly maintenance amount granted, can not be higher than the one, as actually claimed in her pleadings. Therefore, the trial Court obviously appears to be wrong in granting monthly maintenance amount to the child at a rate, higher than the one, as actually pleaded by the childs mother in her maintenance petition. Revision partly allowed.