P VIJAYALAKSHMI Vs. P GOPALKRISHNA BHAT

JUDGEMENT

(1.) This appeal arises from the judgment and order dt. 24-6-93 passed by Civil Judge, Puttur, Dakshina Kannada, rejecting the apellant's application under O. 33, R. 1 of the Civil P.C. for permission to file a suit for maintenance as an indigent person. The application has been rejected primarly on the ground that the appellant had received a sum of Rs. 17,000/- by cheque, from her husband towards arrears of maintenance in Jan., 1992 and a sum of Rs. 5,000/- in Sept., 1991 towards arrears of maintenance. The trial Court has further observed that no doubt, the appellant and her father who have appeared in witness box as P. W. 1 and P. W. 2 have stated that the amount was disbursed for the payment of loan and other expenditure. The Court below has further taken the view that no documentary evidence has been placed to show that money was borrowed from Subraya Bhat neither there is any receipt to the effect that the loan taken by P.W. 2 father or by her herself had been repaid to Mr. Bhat, nor Mr. Bhat has been examined. It is to be taken note of in this case that respondent has not entered witness box to challenge the allegations made on oath. He has not summoned Mr. Bhat though loan has been taken from Mr. Bhat. Mr. Bhat should have been summoned by the husband who was attempting to challenge the statement of P. Ws. 1 and

(2.) So the Court below was wrong in disbelieving the evidence of P.Ws. on this basis. These proceedings are really summary proceedings. There is nothing on record to indicate Mr. Bhat was intentionally not produced. In my opinion the evidence of P. Ws. 1 and 2 is quite reliable. There may be some minor contradictions. No doubt it is proved, that loan had been taken. Grown-up daughters who are married when they are in trouble parents do render some help because of some affection. But husband cannot claim that because father is maintaining his wife to whom he has not paid maintenance or who wants to claim maintenance should not be allowed to prosecute. The maintenance amount is awarded to the claimant or to the person at least to maintain his or her life. Sometimes the maintenance is kept in arrears and it is not paid. With what difficulty the poor lady goes on taking loan etc. and at times it may lead to frustration. The frustration may result in destitution. I feel sorry to say that destitution may also lead to prostitution. The amount which has been granted as maintenance by the Criminal Courts and the husband did not pay the maintenance for long and it was paid on Sept., 1991 as well as in Jan., 1992 then in that case to maintain herself the lady must have had to borrow some money. There can also be understanding, between the father and the daughter that she would repay the amount when she receives as the arrears of maintenance. This may be a natural feature and particularly during these hard days of economic disability of the common people and when the price is rising so high it is difficult for that lady to maintain herself with a meagre amount. The maintenance or the arrears of maintenance received cannot be taken into consideration as a means to pay the Court-fee. For this I find support from the Division Bench Judgment of this Court in the case of D. S. Prema Kumari v. D. S. Srinivasa Murthy reported in ILR 1993 Kar 1862. In paragraph 6 the Division Bench observed that "the maintenance amount is awarded mainly for the sustenance of the appellant and that cannot be taken into account for determining the capacity of the appellant to pay the Court fee". In the case of Gurucharan Singh.v. Sukhvinder Singh, reported in AIR 1972 Punj and Har 19 a similar view has been taken by the Punjab and Haryana High Court. The view taken by this Court as well as Punjab and Haryana High Court support the view I am taking. The maintenance amount is awarded for the sustenance and those meager amounts cannot be taken into consideration for the purpose of determining the capacity to pay the Court-fee. The reason is if maintenance is received and then again the husband does not pay or there is need to file civil litigation for permanent maintenance or enhancement of maintenance and then in those cases higher Court fee is to be paid and if the person getting the maintenance from the Criminal Court is required to pay the entire amount or major portion of that amount towards Court - fee we can conceive how that poor lady will live after having paid the entire amount towards Court-fee. It is with this intention that even in CPC there is a provision under S. 60 wherein maintenance has been exempted from attachment. If the applicant did not mention in her application that the maintenance amount was received to move the application or for disbursing the loan she cannot be blamed that he has mala fidely concealed that from the Court without making the application. In her statement she has stated that she has pointed that to her Counsel, the Counsel might have been of the view that it may not have been taken into consideration as material fact.

(3.) The learned counsel for the respondent pressed very much that it is in the evidence of P.W. 2 who has got Bank account and she has produced the same. A mere statement of P.W. 2 will not be sufficient. The respondent should have moved the trial Court for calling upon P.W.2 for further cross examination about the bank account. On this basis presumption cannot be drawn. Therefore the order passed by the trial Court holding that she is not an indigent person suffers from error of law and facts. I hold that the applicant has sufficiently proved that she is an indigent person and had no capacity to pay the Court-fee. The appeal is allowed. The trial Court shall proceed with trial as she is allowed to file the case as indigent person herewith.The appeal is finally disposed of. Appeal allowed.