GITA Vs. PROBHAT KUMAR

JUDGEMENT

(1.) The petitioner wife, who is the respondent in this appeal, has filed this application under S.24, Hindu Marriage Act, for maintenance pendente lite and expenses of this appeal against the husband who is the appellant in this appeal. In the Court below, the husband did not contest the wife's application for pendente lite maintenance and on consent of the parties, the Court passed an order directing the husband to pay a sum of Rs. 350/- per month as maintenance during the trial. Before us, however, the present application by the wife respondent for pendente lite maintenance during the period of this appeal and for expenses for this appeal has been very seriously opposed by the husband-appellant on the ground that he has now come to learn that the wife owns two pieces of valuable lands in Calcutta and as such she cannot be regarded to be one who "has no independent income sufficient for her support" within the meaning of S.24, Hindu Marriage Act, and is, therefore, not entitled to invoke that Section.

(2.) The wife has not denied that she owns those two plots of lands but has averred in her affidavit that those two plots of vacant land measuring about 3 Cottahs and 2 Cottahs yield no income at all. This averment has not been countered by the husband in any way, but it has been very strongly urged by his learned Counsel, Mr. Bhattacharjee that even if there is no return, in cash or in kind, coming in out of those properties, still then those must be taken into consideration in deciding the maintainability of this application at the instance of the wife under S.24. Mr. Bhattacharjee has urged that S.24 mandates the Court to have regard to the "income" of the petitioner as well as of the opposite party and in the context of the language of S.24, the expression income would also include properties, whether presently yielding any return or not. Since (to borrow from Tennyson) words, like nature, may only half-reveal and may very well half-conceal the soul within and since such half-concealed soul may only be discovered from the context in which a particular word has been used, we propose to reproduce the provisions of S.24 hereinbelow

(3.) It is generally said that income is an expression of elastic ambit, a word of the broadest connotation, a term difficult to define in any precise general formula. But even in its widest amplitude, the expression, in our view, cannot take within its sweep the capital assets like lands and hereditaments and can only include the return accruing from those assets. Fruits of the tree are income, but not the tree; crops from the field are income, but not field, rents from land or house are income, but not the land or the house. Even our law relating to taxes on income, with its far-flung and ever-widening tentacles, has not covered capital assets for which a separate law relating to wealth-taxes had to be enacted. It is true that by an artificial definition, our Income-tax law has brought within the ambit of income, not the capital assets, but only the capital gains, i.e., profits or gains arising from the transfer of capital assets. But it is not the case of the husband that the wife has transferred any of those lands and has earned or is earning any income in the shape of capital gains.