1. These two appeals arise out of the order for maintenance D/- 14-11-1978 passed by the Civil Judge, Gadag is M. C. (Misc.) Suit No. 15 of 1976on his file awarding maintenance of Rs. 200/- per month to the erstwhile wife who applied for maintenance u/s. 25 of the Hindu Marriage Act, 1955.
2. The marriage between the petitioner - Ratnaprabha and respondent Shadaksharaiah, took place on April 20, 1970 at the residence of the respondent-husband at Gadag. The said marriage was annulled by a decree passed by this Court in No. F. A. 387/73 D/- 20-2-1976. That appeal arose from out of the order passed in M. C. No. 1/1972 on the file of the Civil Judge, Gadag. This Court passed a decree for nullity of the marriage on the ground of impotency of the husband. Thereafter the petitioner-wife has been staying with her parents and she presented the petition before the learned Civil Judge, as the quondam husband failed to pay her any amount for maintenance. She claimed maintenance of Rs. 500/- from the respondent husband in the petition. The respondent resisted the petition by filing his statement of objections. According to him, since the marriage was already nullified and there was no relationship between the parties he was not liable to pay any maintenance. In the alternative he contended that the claim made in the petition was excessive. The learned Civil Judge raised the following points as arising for his consideration:
(1) Whether the present petition is maintainable?
(2) Whether the petitioner is entitled to maintenance? If so, at what rate?
(3) Whether the opponent proves that the petitioner was leading an immoral life?
(4) What reliefs are the parties entitled to?
3. During hearing the petitioner examined herself and her mother as P, Ws. 1 and 2. As against that the respondent examined himself in support of his contention. The learned Civil Judge, appreciating the evidence on record, answered point No. 1 in the affirmative and under point No. 2 he held that the lady was entitled to maintenance at Rs. 200/- per month, He answered Point No. 3 in the negative and thus passed a decree for maintenance to the wife at Rs. 200/- per month. Aggrieved by the said order of maintenance the wife has instituted M. F. A. 699/1979 an-1 the husband-respondent in the petition has instituted M. F. A. 871/1979.
4. The learned counsel for the appellant in M. F. A. 699/79 urged before us that the amount of maintenance awarded at Rs. 200/- per month was very much on the lower side having regard to the need of the wife and the properties of the husband-respondent. In M. F. A. 871/79 the learned Counsel appearing for the appellant-husband urged that the maintenance amount awarded at Rupees 200/- p. m. was very much on the higher side since the original petitioner was working as a tutor privately and earning her maintenance. He further submitted that the petition for maintenance was not maintainable as there was no relationship of husband and wife, when once the decree for annulment of marriage was rendered.
5. The points therefore that arise for our consideration in these two appeals are :
(1) Whether the finding of the learned Civil Judge that the petition for maintenance is maintainable is justified?
(2) Whether the quantum of maintenance awarded by the learned Civil Judge at Rs. 200/- p. m. is just and proper on the f acts of the case?
6. S. 25(1) of the H. M. Act, reads:
'Any Court exercising jurisdiction under this Act may, at the time of passing any decree or at any time subsequent thereto, on application made to it for the purpose by either the wife or the husband, as the case may be, order that the respondent shall, while the applicant remains unmarried, pay to the applicant for her or his maintenance and support such gross sum or such monthly or periodical sum for a term not exceeding the life of the applicant as having regard to respondent's own income and other property if any, the income and other property of the applicant and the conduct of the parties, it may seem to the Court to be just, and any such payment may be secured, if necessary, by a charge on the immoveable property of the respondent'. ' Thus it is obvious that S. 25(1) of the H. M. Act enjoins either on the husband or the wife even after a decree under the H. M. Act is passed, to pay maintenance to the other. In the instant case, it is not in dispute that a decree for annulment of marriage was passed by this Court in M. F. A. No. 387 of 1973 on 20-2
1976. That being so, it is obvious that the erstwhile wife in the instant case could maintain an application for maintenance. The different types of decrees that are contemplated under the H. M. Act are : decree for judicial separation, decree for restitution of conjugal rights, decree for annulment of marriage and decree. for
divorce. S. 25(1) states in a general way, 'at the time of passing any decree or at any time subsequent thereto'. Hence it is obvious that the parties to a decree for annulment of marriage also are covered u/s. 25(1) of the H. M. Act (vide Kuldip Chand v. Geeta, : AIR1977Delhi124 ; Govindarao v. Anandibai : AIR1976Bom433 ; Munuswamy Rajoo V.Hamsa Rani, : AIR1975Mad15 ). Hence we hold that the petition of the wife for maintenance u/s. 25(1) is maintainable. It may further be stated in this context that the terms 'wife' and 'husband' in the section are merely terms to refer to parties a ceremony of
not signify an spouses - (Sisir who have gone through marriage and they do existing relationship as Kumar v. Sabita Rani, : AIR1972Cal4 ; Kuldeep Chand v. Geetha, : AIR1977Delhi124 Hence we answer Point No. 1 in the affirmative and in favour of the wife-petitioner.
7. The next point for our consideration is, whether the quantum of Rs. 200/- for maintenance is justified. We were taken through the evidence of PW. 2 as also of P. W. 1. P. W. 2, the mother of the petitioner has no doubt stated that the respondent in the petition is her brother and she knew about the financial condition of the family, but she has admitted in the cross examination that her relation got strained since 1972 and that she was not aware of the conditions thereafter. According to P. W. 2 Shanthadevi, respondent belongs to a rich family in the locality and the family has been partitioned about 20 years prior to her deposition before the Court. According to her, her brother respondent in the petition sold a property belonging to him for Rs. 60.000/- a few years back. Her deposition is challenged in the cross-examination. No piece of documentary evidence is produced by her or by the petitioner in the case.
8. D. W. 1 has no doubt stepped into the box and has denied the averments made by P. Ws. 1 and 2 in the box. He has also not produced any piece of documentary evidence. He admits that there was a partition in his family and he got properties to his 1/3 share, including the share in the Diamond House which is the residential house. When once he claims there was a partition in the family by a registered partition deed, it was his duty to produce the original partition deed. The learned counsel appearing for the husband, however, submitted before us that the burden was on the wife and she could have produced the certified copy of the partition deed. The fact, however , remains that there is no partition deed produced before the Court.
The husband admitted that he sold a piece of property for Rs. 22.000/- the P. W. 2 asserted that it was sold for Rs. 60,000/-. The husband further admitted that he has a plot of five guntas in the Hubli City and further that he has got agricultural lands. Hence the evidence before us is rather nebulous and it would not enable us to come to a definite conclusion as to the proper income of the husband. Hence we have no basis to say that the maintenance amount awarded is either low or high. We are satisfied, however, that having regard to the fact that the husband has got five guntas of land in Hubli City; that he has recently sold. according to his own admission, a property for Rs. 22.000/-, and his further admission that he had a share in the workshop. it cannot be said that the meagre sum of Rs. 200/- P. m. awarded by the Court below could be considered as high. It may further be mentioned that the husband having admitted that he had a share in the factory, it was for him to show to the Court that he had lost his share in the factory by producing necessary documents. He has not done so. Hence we hold that there is no substance in the appeal instituted by the husband that the maintenance awarded is on the higher side.
9. We have already observed above that there is no material before us to come to a determinate conclusion that the maintenance awarded is on the lower side. It is in the. evidence of the husband that the petitioner-wife is doing tution work and earning some amount out of it, though no doubt there is no clinching evidence on that point. That being so, we are constrained to hold that we have no material before us to enhance the quantum of maintenance also.
10. In the result, both the appeals are liable to be dismissed and we dismiss both the appeals. No costs.
11. Appeals dismissed.