MOHINDER KAUR Vs. RAJINDER SINGH

JUDGEMENT

(1.) The facts giving rise to this appeal succinctly are that the parties Smt. Mohinder Kaur and Sh. Rajinder Singh Juneja were married in accordance with law on 10th Nov., 1973. On 17th May, 1974 the petitioner moved an application for divorce on the ground of (a) cruelty, and (b) in the alternative, the marriage being a nullity. The first ground prevailed with the Court and a decree for dissolution of marriage on the ground of cruelty was passed by Sh. S.C. Chaturvedi, Additional District judge on 21st Sept., 1978. Not satisfied, the petitioner filed an appeal against the said order asserting that her marriage with the respondent be declared null and void and she even sought amendment of the plaint in that respect. However, the appeal (F.A.O. No. 222/78) was dismissed by this Court on 2nd May, 1979. The appellant then went in Letters Patent Appeal being No. 129/79, but the same was dismissed in limine on 21st Aug., 1979. Undeterred she moved a special leave petition in the Supreme Court but the same too met with the same fate on 24th Sept., 1980. In the meantime the appellant moves an application under Sec. 25 of the Hindu Marriage Act for grant of permanent alimony on lit Oct., 1978. It was resisted by the respondent inter alia, on the ground that she was possessed of sufficient means to maintain herself inasmuch as she had taken ornaments worth about Rs. 30,000.00 on 4th Feb., 1974, when she left her matrimonial home for good and she executed receipt, Ex. R1 with regard to the same. Secondly, it is urged that she was having her own income by coaching private students and she was earning about Rs. 350.00 per month from tuition work. As for himself, the respondent took the plea that he was hardly earning Rs. 500.00 per month as a partner in the two firms, namely, M/s. Ajit Electric Company and M/s. Jay Aar Industries, which are partnership concerns belonging to his father, his brother and himself as partners.

(2.) The learned Additional District judge vide impugned order dated 31st Oct., 1980, has found that the appellant has no personal income of her own and she is residing with her parents. He has further observed that even father of the appellant who is a practising Advocate is not a man of affluence and as such the appellant is unable to maintain herself. Of course, he has not disbelieved the stand of the respondent that the appellant/petitioner took away with her ornaments etc. worth about Rs. 30,001/- at the time of leaving her matrimonial home on 4th Feb., 1974. As for the respondent, he has come to the conclusion that he is assessed to income-tax on account of his having a share in the partner ship business mentioned above as such he must he presumed to having an income of more than Rs. 10,000.00 per annum. Taking into consideration various circumstances he has fixed the alimony at Rs. 162.00 per month with effect from 1st Oct., 1978. Incidentally it may be mentioned that this very amount was being paid to her by the respondent during the course of divorce proceedings as alimony pendente lite.

(3.) The learned counsel for the appellant has canvessed with considerable favour that the amount of Rs. 162.00 per month is too meagre and is hardly enough for the appellant to make both ends meet. He has invited my attention to the evidence on the record suggesting that the respondent has got an income of at least. Rs. 1,000.00 per month. It is, of course, admitted that the respondent has since remarried. He is living with his parents at E-12, Kirti Nagar and is not running an independent establishment of his own. However, the case of the respondent is that under the terms of the partnership deed he is entitled to draw only half of the share of his profits because he has not subscribed to the capital of the firm, the whole of the capital having been invested by his father. This plea might have prevailed with the Court below and for that matter even this Court had he placed on the record the partner. ship deed or its true copy. Strangely enough he had not chosen to produce even a copy of the order of assessment of income-tax for the year preceding this application. So, it can be safely assumed that his income is Rs. 1,009.00 per month approximately, especially so when the income of the father is admittedly Rs. 2,000.00 p.m. and according to counsel for the respondent the latter has one-half share in the partnership business, although it is suggested that he has also got some other source of income. However, we are left guessing about the same.