SUSHMA BAWA Vs. RAVINDER NATH BAWA

JUDGEMENT

(1.) THIS will dispose of Civil Revision No. 2555 of 1992 and Civil Revision No. 3758 of 1992. Civil Revision No. 2555 of 1992 has been preferred by the wife, whereas Civil Revision No. 3758 of 1992 has been preferred by the husband.

(2.) IN an application under Section 24 of the Hindu Marriage Act (briefly 'the Act') moved in a petition filed by the husband for dissolution of marriage, the wife (petitioner herein) was awarded a sum of Rs. 1,500/- per month as maintenance pendente lite and Rs 3,000/- as litigation expenses This order was earlier challenged in Civil Revision No. 3305 of 1992. When this revision petition came up for hearing before me. I found that the evidence brought on record and was not. sufficient to determine the income of the husband and, therefore, the ease was remanded to the District Judge to re-determine the same after giving an opportunity to the parties to lead additional evidence, if any. On remand, the wife produced some evidence pertaining to the income of the husband, in the shape of returns filed by the husband with the Income-tax Department. From the last return filed by the husband, the Court found that the husband had a gross profit of Rs. 10,10,562/- from his clinic and after getting deductions, a net profit of Rs. 1,70,247/- was shown. The amount was taken to be the income of the husband and consequently, the Trial Court found that the husband was earnings little less than Rs. 15000/- per month. The wife in her application as well as in her affidavit stated that she has no income from any source. However, the Trial Court assumed that income of the wife must be about Rs. 4,000/- to Rs. 5,000/ -. This figure was arrived at on account of non-appearance of the wife in the witness-box. The Trial Court also relied upon the statement made by the husband with regard to income of the wife. Consequently, the Trial Court again awarded a sum of Rs. 1,500/- per month as maintenance pendente lite and Rs. 3,000/- as litigation expenses. This order is being challenged by the wife in Civil Revision No. 2555 of 1992 and by the husband in Civil Revision No. 3758 of 1992.

(3.) AFTER hearing learned Counsel for the parties at length, I am of the view that this revision petition, i. e. Civil Revision No. 2555 of 1992 deserves to succeed. The Trial Court on the basis of income-tax returns returned the finding that the husband was having an annual income of Rs. 1,70,000/-, i. e. Rs. 15,000/- per month. Taking this to be the income of the husband, the maintenance awarded to the wife is certainly on a lower side and the same deserves to be enhanced. I am not impressed with the argument of learned Counsel for the respondent that the taxable income of the husband is only Rs. 49,850/- and, therefore, this should be taken to be the income of the husband. The figure of Rs. 49,850/- was arrived at after giving statutory benefits towards national savings certificates and depreciation etc. These deductions cannot be taken into consideration while determining the disposable income of the husband. As already noticed, the gross profit from the clinic was Rs. 10,10,562/- and after giving the husband all the deductions allowable, the net profit was arrived at Rs. 1,70,247/ -. This amount would be taken to be the income of the husband for determining the maintenance payable to the wife and not Rs. 49,850/as submitted by the Counsel for the respondent-husband. So far as the income of the wife is concerned, there is no evidence on record to show that the wife is having an income of Rs. 4,000/- to Rs. 5,000/- p. m. , as determined by the Trial Court. The husband in his statement has though stated that the wife is having income from deposits in banks, post-office, but this has remained only an allegation and no proof whatsoever in support of this allegation has been given by the husband. Non-appearance of the wife in the witness-box would be of no consequence as she has filed an affidavit and from the statement of the husband the averments made in the affidavit cannot be said to be false. Counsel for the respondent has made a reference to certain averments in the application where the wife has stated that she is spending Rs. 4,000/- on the education of her son. The wife has explained this in her reply to the affidavit that this amount was being sent to her by her brothers who are settled in the United States of America.