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Smt. Rajdei Vs. Lautan and anr. - Court Judgment

LegalCrystal Citation
SubjectFamily;Civil
CourtAllahabad High Court
Decided On
Case NumberSecond Appeal No. 1448 of 1974
Judge
Reported inAIR1980All109
ActsHindu Marriage Act, 1955 - Sections 7 and 24; Evidence Act, 1872 - Sections 114
AppellantSmt. Rajdei
RespondentLautan and anr.
Appellant AdvocateK.P. Sinha and ;Dinesh Pratap Bahadur, Advs.
Respondent AdvocateGyanendra Nath Verma, Adv.
DispositionAppeal dismissed
Excerpt:
- - there is a presumption about their correctness until the same is displaced by good evidence. in the result, the appeal and the cross-objection both fail and are dismissed but in the circumstances, there will be no order as to costs......be allowed because it is not the law that the husband must starve himself in order to maintain his wife. if the husband's income was rs. 40/- per month, he would need more than rs. 30/- per month for keeping his body and soul together.learned counsel for the appellant-wife urged that the lower appellate court has wrongly excluded from consideration the fact that the defendant-respondent owned at least about 4-5 bighas of agricultural land. the lower appellate court has on this point found that the land stood in the defendant-respondent's father's name and could not, therefore, be said to belong to him. however, the fact that the land was recorded in the defendant's respondent's father's name cannot mean that the land could not provide or was not one of the means for the maintenance of.....
Judgment:

Deoki Nandan, J.

1. This is a wife's second appeal in a suit for maintenance.

2. The trial Court decreed the suit for maintenance at the rate of Rs. 40/- per month. The lower Appellate Court has modified the decree by reducing the amount of maintenance from Rs. 40/- per month to Rs. 10/- per month.

3. The appeal in this Court is directed against the reduction of the amount of the maintenance. It is an appeal by the wife. The respondent husband has challenged the factum of the marriage between the parties, by filing a cross-objection. I shall take up the cross-objection first.

4. According to the learned counsel for the appellant, there was no evidence to show that 'Saptpadi' was performed and that in the absence of proof of 'saptpadi', there could have been no marriage between the parties. He relied on Bhaurao Shanker Lokhande v. The State of Maharashtra, AIR 1965 SC 1564, which was a case of prosecutionfor bigamy under Section 494 of the I.P.C.J and obviously somewhat different consideration as to burden of proof prevailed. In the present case, there is evidence to show that 'pau-puja' was done according to the custom of the caste. There is nothing on the record to show that 'saptpadi' was one of ceremonies necessary for bringing about a valid marriage between the parties in accordance with the customary rights and ceremonies of either of the parties, Under the circumstance, the evidence that 'pau puja' was done in accordance with the custom of the 'Biradarl' (caste) for solemnising the marriage, was in my view sufficient, for bringing about a valid marriage. It is not the law that it must be proved that 'saptpadi' was performed, in every case where the factum of marriage is in question. The party who affirms that there was no marriage in accordance with the customary rights and the ceremonies of the parties must also prove that such rights and ceremonies include saptpadi. There being no such evidence on behalf of the husband, the argument raised by the learned counsel on this score cannot be sustained in face of the evidence from the other side that, the marriage was solemnised by performing 'pau puja' in accordance with the custom of the caste to which, the parties belong.

5. Another point raised by the learned counsel for the husband was that the evidence of entries in the electoral roll and the kutumb register showing that the plaintiff-appellant was the defendant-respondent's wife was of little consequence in view of the fact that the entries were made in the year 1968 when the dispute between the parties had already arisen in the year 1965. The copy of the extract of the kutumb register was issued on 8th January, 1967, and the entry appears to have been made by way of correction on 31st May, 1967. It cannot be said the extracts from the kutumb register and the electoral roll were inadmissible in evidence. It was for the courts below to decide what weight was to be given to the evidence in the light of the facts and circumstances of the case; and they relied on the entries in kutumb register and the electoral roll. These entries are made by public officers in due discharge of their duties. There is a presumption about their correctness until the same is displaced by good evidence. I do not see anythingillegal, improper or wrong in the finding recorded by the two courts below that the plaintiff is the duly wedded wife of the defendant-respondent.

6. As to the quantum of maintenance, which was the only point urged by the learned counsel for the appellant, I must say that the amount of Rs. 10/- per month is almost nothing in the present times. I must, however, also say that if the husband's income was only Rs. 40/- per month at the relevant time, and the lower appellate court could not have awarded anything more than the nominal amount of Rupees 10/- per month, which is more by way of a token than by way of any relief to the appellant. But nothing more could probably be allowed because it is not the law that the husband must starve himself in order to maintain his wife. If the husband's income was Rs. 40/- per month, he would need more than Rs. 30/- per month for keeping his body and soul together.

Learned counsel for the appellant-wife urged that the lower appellate court has wrongly excluded from consideration the fact that the defendant-respondent owned at least about 4-5 bighas of agricultural land. The lower appellate court has on this point found that the land stood in the defendant-respondent's father's name and could not, therefore, be said to belong to him. However, the fact that the land was recorded in the defendant's respondent's father's name cannot mean that the land could not provide or was not one of the means for the maintenance of the defendant-respondent and his wife, the plaintiff appellant. This aspect of the matter seems to have been ignored by the lower appellate court but it appears to have believed the defendant-respondent's assertion that he had separated from his father.

Be that as it may, sitting on second appeal, I cannot say that the finding of the lower appellate court on the quantum of maintenance suffers from any such error of law or procedure as to warrant interference by this court. The amount of maintenance is a matter which can always be revised by a court decreeing the maintenance, if there is any change in the circumstances of the parties. It was contended by the learned counsel for the plaintiff-appellant, that the defendant-respondent was now employed as a 'mistri' in some cold-storage and was drawing Rs. 600/- permonth. If that is so it would be open to the plaintiff-appellant to apply to the trial court for enhancement of the amount of maintenance in view of the changed circumstances of the defendant-respondent.

In the result, the appeal and the cross-objection both fail and are dismissed but in the circumstances, there will be no order as to costs.


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