PARVEEN KUMARI Vs. HARISH ARORA

JUDGEMENT

(1.) -This appeal under Sec. 28 of the Hindu Marriage Act, 1955 is directed against the Judgment and order of the additional District judge dated 25th Nov., 1980 dismissing the appellant's petition claiming permanent alimony for herself and her daughter. Briefly stated the facts are : The Marriage between the parties was solemnised on 26th July, 1976 according to Hindu rites. A male child was born on 25th June, 1978 but died on 7th July, 1979. One female child, Chanda, is alive and has been living with the appellant. Parties lived together for some time but on account of cruel treatment, of the respondent, both could not live together. The appellant was turned out by the respondent from his house. Threats were given to her and First Information Report No. 21-A dated 12th April, 1978 was lodged with the police station Patel Nagar, New Delhi. The appellant has been living with her parents since 1978. On 24th Oct., 19711 she filed a petition for dissolution of marriage by a decree of divorce on the ground of cruelty. The respondent was served. But on the date of hearing he was absent. He moved an application for setting aside the ex parte order, which was allowed on payment of costs but again the respondent absented himself and finally after recording evidence an ex parte decree of divorce on the ground of cruelty was passed by the Additional District Judge, Delhi on 28th Feb., 1979 (H.M.A. No. 318 of 1978 of the court of Shri S.C. Jain, Addl. District Judge, Delhi).

(2.) On 1st June, 1979 the appellant filed the petition for permanent alimony and maintenance praying for the grant of Rs. 5000.00 as permanent alimony for her living and her child and in the alternative Rs. 500.00 per month as maintenance for both. The appellant pleaded that she had a female child residing with her, that she had been residing with her parents, who were not doing any business and as such they had no permanent source, of income, that she did not want to remarry and was living at the mercy of her parents along with the female child in desperate condition, that the respondent-husband was a man of means working in Delhi Telephones drawing about Rs. 900.00 per month and rental income about Rs. 500.00 per month, that the respondent was bound to maintain her and the child. The respondent in reply submitted that the appellant had means and was earning more than him, that she got the divorce only to marry a person of her choice and he acceded to her wishes, that the appellant had opened a school in her house having a number of sewing machines and had employed a number of staff, that he was only a lower division clerk drawing a salary of Rs. 450.00 with which he was to support his family and aged parents. In replication the appellant-wile reiterated that she had no source of income and was living at the mercy of her relatives, that she was not owner of any property. The appellant in her statement as P.W. 1 has deposed that the respondent has been working as an Upper Division Clerk in the Delhi Telephones, his total emoluments being' Rs. 900.00, that she has no source of income, that her daughter is aged 2 years and 9 months, that her husband has not paid any maintenance for them. In cross-examination she has admitted that her mother was doing the work of knitting, that site was not doing any knitting work and that she was not earning anything by doing any work. It was emphatically denied that she herself was doing any knitting work. She however admits that the writing in the note book Ex. R. I is in her hand. This note book contains some details. of material used in pullovers and designs. There is no statement of account in this note book. It does not disclose any income. It is just a rough note book regarding the knitting of the pullovers. There is writing on about 10 pages and other pages are blank. The writings are not intelligible. The appellant admits that the respondent has two children from his first wife who are getting education in school. She denies that she was earning between Rs. 700.00 and Rs. 800.00 by doing the knitting work, she has denied that she was doing any embroidery work on pullovers. In fact she has stated that she has no source of income. Smt. Shiela Devi mother of the appellant appeared as P.W. 2. She has deposed that she had been doing knitting work for about one year and that such work was being done for three months in a year, that she was doing that work alone and that the appellant was not working with her. She has stated that she purchased one knitting machine a year before, her husband was doing Kabari work on a cycle. She has admitted that previously she was doing some stiching work. She has denied the suggestion that the knitting work continues for the whole year. She did not produce the receipt regarding the purchase of the knitting machine and denied the suggestion that she was deliberately avoiding to produce the receipt for the reason that the same was in the name of the appellant. The respondent-husband as R.W. I has deposed that he has been working in Delhi Telephones getting total emoluments of about Rs. 700.00 as detailed in the salary certificate Ex. R. 2. According to this certificate his total salary is Rs. 675-70. It includes monthly pay, dear- ness allowance, Additional dearness allowance, City Compensatory Allowance and House rent allowance. This certificate shows deductions C.G.H.S. Rs. 1.50, G.P.F. contribution Rs. 25.00, Central Government Employees Insurance Scheme Rs. 5.00. Besides these deductions a sum of Rs. 100.00 is deducted from the salary on account of G. P. Fund advance, Rs. 50.00 on amount of Scooter advance, and Rs. 20.00 on account of festival advance. Thus the compulsory monthly deductions amount to Rs. 31.50. The deductions on account of G.P.F., scooter and festival advances are the creation of the respondent himself and they are not compulsory deductions. If these three deductions are not taken into consideration, his carry home monthly salary would be Rs. 644.20. The respondent has further deposed that the appellant was running a knitting machine and was earning Rs. 1000.00 or Rs. 1200.00 per month, that her mother was engaged in doing stiching work, that he has re-married and had two children from the first wife to support besides his parents, that his children were getting education in Saraswati Shishu Mandir, that he was paying Rs. 50.00 as monthly tuition fee for the two children, from first wife, that he has no other source of income, that his father owns a double storeyed house 6/23, West Patel Nagar, New Delhi. He has admitted that the appellant has one daughter who was not getting any education. R.W. 2 Savitri Sharma on behalf of the respondent-husband has deposed that he has been residing in Baljit Nagar for the last about 10 years, that the appellant was doing knitting work in the house of her mother on a knitting machine, her estimate is that the appellant was earning Rs. 600.00 to Rs. 700.00 per month.

(3.) The receipt for the purchase of the knitting machine by the mother of the appellant was not produced and therefore the trial court drew the adverse inference against the appellant and held that the machine was purchased by the appellant and further held that the appellant was earning Rs. 700.00 to Rs. 800.00 per month. He disbelieved the statement of the appellant that she was not earning. The appellant and his mother have appeared as witnesses. Their statements are natural. Failure to produce the receipt showing purchase of the knitting machine in the name of the appellant's mother does not mean that the appellant has any source of income. The appellant's mother deposed that the work of knitting was done for about three months in a year. She made the statement on 22nd Feb., 1980. The petition for maintenance was filed in June, 1979. She also stated that the knitting work was clone for about one year. The father of the appellant is doing kabari business on a cycle. The copy Ex. R. I is not intelligible and does not disclose that there is any source of income to the appellant. The appellant has admitted that the writing in the note book was in her hand but it does not mean that she is the owner of the knitting machine or she has any share out of the work carried on by her mother. The appellant's mother and father have also no business. According to the appellant's mother the knitting work was started about a year back. The respondent has not produced any reliable evidence on record, that the appellant has any source of income. There is no evidence that appellant had funds for the purchase of knitting machine. The appellant has no place to live, she has been residing with her parents. According to her she was turned out by the respondent. The appellant and her daughter have not been looked after by the respondent since the clay they were turned out. The respondent did not contest the divorce proceedings. In other words, he consented to a decree of divorce on the ground of cruelty.