K.G.SHAH - (1.) The learned Advocate General appearing for the defendant firstly contended that under the provisions of the Act the Civil Court had no power to make an order for interim maintenance for there is no specific provision for passing such an order for interim maintenance. In support of his submission the learned Advocate General relied upon the decision in the case of G. Appanna v. G. Sheethamma A.I.R. 1972 Andhra Pradesh p. 62. As against that Shri H. J. Trivedi L.A. for the plaintiff relied upon : (a) Deiva Siggamani Udayar v. Rajaraniammal A.I.R. 1973 Madras p. 360; (b) Jyoti Prakash Banerjee v. Chameli Banerjee and Anr. A.I.R. 1975 Calcutta 260 (c) Baliram v. Radhika Devi & Ors. A.I.R. 1980 Patna p. 67; And (d) Madhukar Akhand v. Bhima Akhand & Ors. A.I.R. 1983 Bombay p. 480. All the four Judgments relied upon by Mr. Trivedi have in terms considered the Judgment reported in A.I.R. 1972 A.P.P. 62 relied upon by the learned Advocate General and have categorically held that the Civil Court has got powers to make order for interim maintenance the absence of a specific provision for the purpose in the Act notwithstanding. The net effect of these four Judgments relied upon by Mr. Trivedi is that the Court has inherent powers to pass order for interim-maintenance in a Suit under Section 18 of the Act. The Calcutta Division relied upon by Mr. Trivedi goes a step further and there is an application which was filed for leave to sue in forma pauperis for maintenance and order for interim maintenance came to be passed and was upheld. In that view of the matter it is very clear that the weight of authority is in favour of the proposition that the Court has got jurisdiction to pass an order for interim maintenance in a Suit for maintenance under Section 18 of the Act. The submission of the learned Advocate General that the Trial Court had no jurisdiction to pass an order for interim maintenance therefore cannot be accepted.
(2.) In Vinod Dhulerai Mehta v. Kanak Vinod Mehta, 1990 1 D&MC 372 the Divisoin Bench of the Bombay High Court approved the approach of the Trial Court in that case where the Trial Court had in preference to the income-tax returns filed by the husband preferred to rely upon the other material going to show the riches and income of the husband. In that connection Their Lordships of the Bombay High Court said as follows. As is well known the income-tax returns do not reflect the true position of the income of the parties for several reasons and cannot be taken as the sole guide for determining in the proceedings such as the present one. In that case before the Bombay High Court for the wife and son aged 16 years maintenance @ Rs. 80 per month exclusively of electricity charges lift maintenance Society charges and regular tuition-fees for the child was granted and upheld. In that case there was evidence to show that the parties enjoyed a lavish style of living. They were occupying a large Flat admeasuring 3000 sq.ft. in a posh locality of Bombay and that they had three servants and the husband and the wife had the facility of chauffeur- driven cars provided from the pool of the Private Limited Company of which the husband was the Managing Director. The husband and his family members had substantial shareholding in the Concern which had large property at Andheri and a famous shop at Aurangabad. The husband alongwith his father had a shop and office-premises. The husbands family was in control of some Industrial Concerns as well. In the apartment of the parties there were various electrical household appliances and gadgets. On these facts the maintenance for the wife and the son as said above was granted and confirmed. What I point out is that the reliance placed by the defendant in the present case on the figures shown by him in the income-tax return cannot be the sole basis for deciding his income. The other material on the record clearly goes to show that the figures of income shown by the defendant in his income-tax returns would be an eyewash. The learned Judge of the Trial Court has rightly observed that if the defend ant was a typical middle-class man as he wants the Court to believe he would not have been able to live in the style as is apparent from the record he would not have been able to take his wife to the Foreign countries for very costly treatment for her infertility he would not have been able to have the medical services of the best Gynaecologist in Bombay for the treatment of infertility of the plaintiff he would not have been able to maintain a fleet of luxurious motor-cars many of which are imported he wound not have been able to live in a posh - pent-house described hereinabove. All these things would give a lie to the stand of the defendant that his yearly gross income is only to the tune of Rs. 1,60,000
(3.) Mr. Trivedi L.A. for the plaintiff relied upon the decision in the case of Chitra Sengupta v. Dhruba Jyoti Sengupta A.I.R. 1988 Calcutta p. 98 and contended that as the defendant who has been called upon to produce the relevant documents of his income and assets has not produced the same an adverse inference be drawn against him and secondly on the basis of that decision he tried to contend that no less than Rs. 15 0 per month be fixed as the interim maintenance of the plaintiff in paragraph 9 of that Judgment in Calcutta case this is what has been observed by Their Lordships of the Calcutta High Court : But that apart monthly income of a husband may not very often be within the knowledge of the wife particularly in a case like this where the relation is considerably strained and the spouses are living apart for a considerably long period the wife staying in India and the husband in United Kingdom. In a case like this the amount of the husbands income would be within the special knowledge of the husband and when the issue before the Court is the amount of such income the onus under Section 106 Evidence Act would be on husband to disclose the same and if he fails to do so without any good reasons the Court would be entitled to presume against him and to accept the allegations of the wife as to the amount of income derived from such reasonable sources as would be available to her. More so where as here the husband does not even deny on oath the correctness of the amount alleged by the wife to be his income but only seeks to take shelter behind legal technicalities. For the aforesaid observations Their Lordships of the Calcutta High Court derived support from the decision in the case of Murugesam Pillai v. Gnana Sambandha Pandana A.I.R. 1917 P.C - 6 where it has been observed as follows : The practice has grown up in Indian procedure of those in possession of important documents or information lying by trusting to the abstract doctrines of the onus of proof and failing accordingly to furnish to the Courts the best material for its decision. With regard to third parties this may be right enough; they have no responsibility for the conduct of the suit but with regard to the parties to the suit it is in Their Lordships opinion an inversion of sound practice for those desiring to rely upon a certain state of facts to withhold from the Court the written evidence in their possession which would throw light upon the proposition. In the case before me as said hereinabove the plaintiff gave an application calling upon the defendant to produce documentary evidence such as - documents of title to the various properties of the defendant documents in the shape of Pass-books of the Bank accounts of the defendant the documents in the shape of profits and loss of the Concerns in which the defendant has pecuniary interest and a host of other documents which are all relevant. The defendant replied to that application by resorting to the abstract doctrine of burden of proof and refused to produce those documents. He only produced the papers about his income-tax returns about which I have made a mention hereinabove. Such an approach on the part of the defendant would certainly Justify drawing of an adverse inference against the defendant viz. that if those documents which the plaintiff called upon the defendant to produce had been produced they would have certainly gone against the defendant.;