Skip to content


Parvati Vs. Ram Chand - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtPunjab and Haryana High Court
Decided On
Case NumberCivil Revn. No. 352 of 1985
Judge
Reported inAIR1986P& H217
ActsHindu Adoption and Maintenance Act, 1956; Code of Civil Procedure (CPC), 1908 - Sections 60(1) - Order 33, Rule 1 - Order 44, Rules 1 and 3
AppellantParvati
RespondentRam Chand
Excerpt:
.....for filing appeal to a division bench against the judgment or decree or order of a single judge. no letters patent appeal shall lie against a judgment/order passed by a single judge in an appeal arising out of a proceeding under a special act. sections 100-a [as inserted by act 22 of 2002] & 104:[dr. b.s. chauhan, cj, l. mohapatra & a.s. naidu, jj] writ appeal held, a writ appeal shall lie against judgment/orders passed by single judge in a writ petition filed under article 226 of the constitution of india. in a writ application filed under articles 226 and 227 of constitution, if any order/judgment/decree is passed in exercise of jurisdiction under article 226, a writ appeal will lie. but, no writ appeal will lie against a judgment/order/decree passed by a single judge in..........in possession of a sum of rs. 3,500-/ in addition to the sum representing future maintenance. the learned additional district judge disbelieved the version of the wife on the ground that she had not examined her counsel from chandigarh to support her plea that a sum of rs. 700/- had been paid by her to him nor had she produced any receipt of the counsel though statedly one was lying with her at her house. further, he took the view that for going to chandigarh two times, as deposed to by the wife, not more than rs. 100/- could have been spent. regarding the return of rs. 2,500/- he observed that there was no evidence except her own bald statment, and that though the loan was alleged to have been repaid by her to her maternal uncle, who had since expired, other relations had not been.....
Judgment:
ORDER

1. This is a revision petition against the order of Shri J. C. Aggarwal, Additional District Judge, Faridkot, whereby he declined permission to the petitioners to file an appeal before him as an indigent person.

2. The broad facts of the case are that Smt. Parwati, the petitioners, filed as suit for maintenance under the provisions of the Hindu Adoption and Maintenance Act, 1956 as an indigent person. Permission was granted to her by the trial Judge in accordance with the provisions of O. 33, R. 1 of the Civil P. C. Smt. Parwati failed in the suit. She filed an appeal before the Additional District Judge, taking the aid of O. 44, Rr. 1 and 3 of the Civil P. C. averring on affidavit that since she was allowed to file the suit as an indigent person and had not ceased to be an indigent person since the date of the decree appealed from, her appeal be entertained without payment of Court-fee. The husband-respondent took objection tot he continuance of her status as an indigent person and avail concession. There upon, the appellant Court framed the only issue:

'Whether the appellant-petitioner ceased to be an indigent person after the passing of the impugned decree OPR'.

3. The husband-respondent deposed that he had paid Rs. 3,500/- to the wife petitioner in the High Court on Aug. 5, 1983, which represented Rs. 500/- as litigation expenses and the balance Rs. 3,00/- towards arrears of maintenance of the rate of Rs. 150/- per mensem. Though the details of this litigation have unfortunately not been brought on the present record, but learned counsel for the petitioners has stated at the Bar that the maintenance pendente lite and litigation expenses are allowed to the wife-petitioner in FAO No. 65-M of 1981 in which the husband was claiming in appeal dissolution of marriage by a decree of divorce. It has further been stated at the Bar that he was unsuccessful in his pursuit. Further the husband stated that he had paid further maintenance at the rate of Rs. 150/- per mensem from Oct. 1, 1983, to Sept. 20, 1984/ In this manner, he maintained that a sum of Rs. 3, 500/- had been placed in the hands of the wife-petitioner and, therefore, she had acquired sufficient means to pay the Court-fee and could not file the appeal as an indigent person. The wife, on the other hand, admitted having received the aforesaid sums of money but claimed that she had paid to her counsel at Chandigarh sum of Rs. 700/- and had spent about Rs. 400/- on travelling to Chandigarh. She further stated that she had raised a loan three or four years earlier to Jan. 17. 1985, to the tune of Rs. 2,500/- to meet the litigation expenses and she had returned that loan of Rs. 2,500/- about 11/2 years before Jan. 17, 1985 (the day she was deposing). She denied the suggestion that she was in possession of a sum of Rs. 3,500-/ in addition to the sum representing future maintenance. The learned Additional District Judge disbelieved the version of the wife on the ground that she had not examined her counsel from Chandigarh to support her plea that a sum of Rs. 700/- had been paid by her to him nor had she produced any receipt of the counsel though statedly one was lying with her at her house. Further, he took the view that for going to Chandigarh two times, as deposed to by the wife, not more than Rs. 100/- could have been spent. Regarding the return of Rs. 2,500/- he observed that there was no evidence except her own bald statment, and that though the loan was alleged to have been repaid by her to her maternal uncle, who had since expired, other relations had not been produced by her to support the repayment. On this analysis, it was held that she had failed to explain the sum of Rs. 3,500/- or the subsequent amounts received by her. Besides, it went against her for not including the share she had in her father's house, as admittedly her father had died in the meantime, without recording any finding as to what was the value of her share and whether it was saleable or was it a house solely in her occupation so as to be exempt from attachment under S. 60 of the Civil P. C. On these premises, the wife was held not to be an indigent person.

4. I have heard the learned counsel for the parties. The view of the learned Additional District Judge seems to me utterly perverse which no reasonable man could have taken. He seems not to have applied his judicial mind to discern the beneficent provisions of O. 33, R. 1 read with S. 60 of the Civil P. C. Now a person is an indigent person if he is not possessed of sufficient means to enable him to pay the fee prescribed by law for the plaint in such suit. In determining that status, property exempt from attachment in execution of a decree and the subject matter of the suit is not to be reckoned. Additionally, if that person is not entitled to property worth Rs. 1,000/- he is treated as an indigent person. In reckoning that status, property exempt from attachment in execution of a decree has to be ignored. Now the learned Additional District Judge while adverting to the provisions of sub-section (1) of S. 60 of the Civil P. C. took only Clause (n) into account which provides that a right to future maintenance is exempt from attachment. Any sum given to the wife for maintenance on monthly basis is meant to keep her body and soul together. The mere fact that is has been allowed to run into arrears and the wife had to fend for herself elsewhere raising loans or taking shelter in the house of friends and relatives, is no reason to deprive the nature of character of the sum which comes in future in her hand s as maintenance. It cannot be put at the level of a sum acquired other than maintenance. If it runs into arrears, it cannot be taken that she had demaintained herself. Maintenance allowance of a wife has rather to be equated to salary which she receives from her husband as a periodical payment for the continuance of her marital status. When S. 60 exempts from attachment salary which ordinarily means periodic payment to the extent of first Rs. 400/- and 2/3rd of the remainder. the law recognises that the first Rs. 400/- are required for the recipient of the salary to keep body and soul together. I see no reason why the arrears of maintenance cannot be put at par with salary under sub-section (I) and be given the same protection as envisaged under S. 60 of the Civil P. C. In the same strain, sub-clause (ia) which exempts from attachment 1/3 of the salary in execution of any decree for maintenance. presupposes that 1/3 rd salary is necessary for the up-keep of the person who suffers the decree for maintenance. A combined effect of these provisions on the afore analysis is that the arrears of maintenance in the hand of the wife. Whether spent or unspent, being exempt from attachment, are not property which can be reckoned towards determining the question whether she was an indigent person to pursue her cause in suit or appeal. On this short ground, the order of the learned Additional District judge needs to be and is hereby upset.

5. Otherwise also, I am of the view that even on merits the view expressed by the learned Judge is materially irregular. It was too much to expect that an indigent person would have called her lawyer from Chandigarh to depose that he had received Rs. 700/- towards fees. It was utterly unreasonable to hold that on two trips to Chandigarh the wife had only spent Rs. 100/-. The learned Judge ignored other expenses which one has to incur while being out of town and these have not to be confined to the rail fare alone as the learned Judge did. It was too much to expect that the wife should have produced a number of witnesses to depose that she had in fact incurred a loan o f Rs. 2,500/- and had paid it back. The learned Judge treated the matter as if the claim of the wife was that of a criminal complainant and she had to proveit beyond any reasonable doubt. The matter had to be viewed on broad probabilities. The explanation rendered by the wife was probable on the fact of it. It may not have been absolutely true but was plausibly true when tested on probabilities, more so when she had been allowed to sue as an indigent person in the Court of first instance. If at the initiation she had no property to pay the Court fee, it would be proper to accept that when she cane by any money as maintenance that had gone to meet her recurring liabilities incurred while the litigation was pending. After all litigation is not a luxury which everyone can indulge in. It besides being time consuming is fairly expensive even if one has not to pay the Court fee. Thus, from all these angles I am of the view that the matter was not examined by the Additional District Judge Judiciously and in the right perspective.

6. For the foregoing reasons, this petition is allowed, the impugned order of the learned Additional District Judge id set aside and the petitioner is allowed to appeal as an indigent person. No costs.

7. Revision allowed.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //