# KUI,BHUSHAN KUMAR v. RAJ KUMARI & ANR

- **Citation:** [1971] 2 S.C.R. 672
- **Court:** Supreme Court of India
- **Decided:** 1971
- **Case number:** Civil Appeals Nos. 2564 and 2589 of 1966
- **Bench:** G. K. Mitter, A. N. Ray
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/kui-bhushan-kumar-v-raj-kumari-anr-5221
- **Pages:** 9

## Headnote

!findu Adoptions and Maintenance Act (78 of 1956), s. 23(2)-
Amounts received by wife monthly from faiher-lf could be taken into
account in determining maintenance-Husband's 'free income', how determined-Amount of maintenance and date from which payable.
The appellant and the respondent were married in May 1945. Sometime after the marriage the husband did not want the wife to live with
him; and there was complete estrangement between them.
A daughter was
born to them in-August 1946. In 1951, the respondent sent a registered
letter claiming maintenance, for herself and the daughter, and in 1954,
she filed the suit for maintenance.
The High Court in appeal, fixed the maintenance payable to the respondent, under s. 23 (2) of the· Hindu Adoptions and Maintenance Act,
1956; at Rs. 250 subject to a limit. of 25% per mensem of the income as
determined by the income-tax authorities, and Rs. 150 as the maintenance
of the daughter. The High Court, in doing so, took into account the
facts that the appellant was a Reader in Medicine receiving a sala\'y of
about Rs. 700 and more than Rs. 250 per mensem by way of ,private
practice. The date of the institution of the suit was fixed by the High
Couit ·as terminus a quo for the payment of the maintenance to the respondent.
In appeal to this Court on the question of maintenance payable .to the
wife.
HELD : (!) Even if the wife received some amounts from her father
tegularly it was only a boμnty and not her income. Therofore it could
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not be taken into account under s. 23(2) (d) of the Act in determining
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the amount of maintenance, [678 A-BJ
(2) There- was no· evidence of
her inheriting any property of her
father on his death. ~678 CJ
(3) The amount payable by way of maintenance depends on the facts
of each ·case
and the Judicial Committee, in Mt. Ekradesltn·ari ·v.
Homeshwar, did not lay down any principle relating to the proportion
of the husband's 'free income' which would· be payable as maintenance
to the wife. [679 F-G]
In the circumstances of this case, no exception could be taken to the
amount fixed by the High Court as well M the date from which the maintenance would be claimable.
In determining the limit at 25% of the
-free income' of the appellant, amounts payable towards income tax, compulsory provident fund, and expenses for maintaining the car for professional purposes as allowed by the income taic authorities, should be allowed
as deductions from the husband'' total income. [ti80 A-C, F-GJ
Mt. Ekradeshwari v. Homeshwar, A.I.R. 1929 P.C. 128 applied.
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KULBHUSHAN V. RAJ KUMAR! (Mitter, J.)
673
A
C1vn. APPELLATE JURISDICTION:
Civil Appeals Nos. 2564
and 2589 of 1966.
Appeals from the judgments and decrees dated March 10.
1965 of the Allahabad High Court, Lucknow Bench in First Civil
Appeals Nos. 5 and (i of 1958, respectively.
B
G. N. Dikshlt and B. Datta, for the appellaint (in both the
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appeals).
C. B. Agarwa/a, Uma Mehta, S. K. Bagga and S. Bagga, for
the re;pondent (in both the appeals).

## Text

672
KUI,BHUSHAN KUMAR
v.
RAJ KUMAR! & ANR.
Oc,tnber ?.0, 1970
[G. K. MITTER AND A. N. RAY, JJ.J
!findu Adoptions and Maintenance Act (78 of 1956), s. 23(2)-
Amounts received by wife monthly from faiher-lf could be taken into
account in determining maintenance-Husband's 'free income', how determined-Amount of maintenance and date from which payable.
The appellant and the respondent were married in May 1945. Sometime after the marriage the husband did not want the wife to live with
him; and there was complete estrangement between them.
A daughter was
born to them in-August 1946. In 1951, the respondent sent a registered
letter claiming maintenance, for herself and the daughter, and in 1954,
she filed the suit for maintenance.
The High Court in appeal, fixed the maintenance payable to the respondent, under s. 23 (2) of the· Hindu Adoptions and Maintenance Act,
1956; at Rs. 250 subject to a limit. of 25% per mensem of the income as
determined by the income-tax authorities, and Rs. 150 as the maintenance
of the daughter. The High Court, in doing so, took into account the
facts that the appellant was a Reader in Medicine receiving a sala\'y of
about Rs. 700 and more than Rs. 250 per mensem by way of ,private
practice. The date of the institution of the suit was fixed by the High
Couit ·as terminus a quo for the payment of the maintenance to the respondent.
In appeal to this Court on the question of maintenance payable .to the
wife.
HELD : (!) Even if the wife received some amounts from her father
tegularly it was only a boμnty and not her income. Therofore it could
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not be taken into account under s. 23(2) (d) of the Act in determining
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the amount of maintenance, [678 A-BJ
(2) There- was no· evidence of
her inheriting any property of her
father on his death. ~678 CJ
(3) The amount payable by way of maintenance depends on the facts
of each ·case
and the Judicial Committee, in Mt. Ekradesltn·ari ·v.
Homeshwar, did not lay down any principle relating to the proportion
of the husband's 'free income' which would· be payable as maintenance
to the wife. [679 F-G]
In the circumstances of this case, no exception could be taken to the
amount fixed by the High Court as well M the date from which the maintenance would be claimable.
In determining the limit at 25% of the
-free income' of the appellant, amounts payable towards income tax, compulsory provident fund, and expenses for maintaining the car for professional purposes as allowed by the income taic authorities, should be allowed
as deductions from the husband'' total income. [ti80 A-C, F-GJ
Mt. Ekradeshwari v. Homeshwar, A.I.R. 1929 P.C. 128 applied.
G
H
KULBHUSHAN V. RAJ KUMAR! (Mitter, J.)
673
A
C1vn. APPELLATE JURISDICTION:
Civil Appeals Nos. 2564
and 2589 of 1966.
Appeals from the judgments and decrees dated March 10.
1965 of the Allahabad High Court, Lucknow Bench in First Civil
Appeals Nos. 5 and (i of 1958, respectively.
B
G. N. Dikshlt and B. Datta, for the appellaint (in both the
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appeals).
C. B. Agarwa/a, Uma Mehta, S. K. Bagga and S. Bagga, for
the re;pondent (in both the appeals).
The Judgment of the Court was delivered by
Mitter, J.
These two appeals are from two judgments
and decrees of the High Court of Allahabad granting maintenance
to the wife and daughter of the common appellant in both the
appeals.
Counsel for the appeilant did not contest the right of th" respondents to claim maintenance. His argument was directed only
against the quantum fixed in both the cases on the ground that
the principles laid down in s. 23 ( 2) of the Hindu Adoptions and
Maintenance Act, 1956 had not been followed by the High Court.
The Act had come into force before the date of the trial court's
judgment on the 1st June 1957 and it is the common case of the
parties that the Act governs the rights of the parties herein. The
relevant portion of s. 23 runs as follows :-
" (l ) It shall be in the discretion of the court to
determine whether any, and if so, what, maintenance
shali be awarded under the provisions of this Act, and
in doing so the court shall have due regard to the considerations set out in sub-section
(2) or sub-section
( 3), as the case may be, as far as they are applicable.
( 2} In determining the amount of maintenance, if
any, to be awarded to a wife, children or aged or infirm
parents under this Act, regard shall be had to-
(a) thP. position and status of the parties;
(b) the reasonable wants of the claimant;
( c) if the claimant is liv,ing separately; whether the
claimani-is justified iii doing so;
( d) the value of the claimant's property and any
income derived from such property, or from
the claimant's own earnings or from any other
source;
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SUPREME. COURT REPORTS
(1971] 2 S.C.R.
( e) the number of persons entitled to maintenance
under this Act.
"
As it \ms contended on behalf of the appelant that practically all
the provisions of the sub-clauses of sub-s. (2) were disregarded
by the High Court, it is necessary to state a few facts about the
married life of the appellant, his income out of which maintenance. is to be directed, the pecuniary conditions of himself and of
his "ife and whether the wife has any other income or property
which had to be taken into consideration.
The marriage of the appellant with the respondent in the first
appeal took place in May 1945 at Gujranwala now in Pakistan.
The father-in-law of the appellant who was ex;amined as a witness
in the maintenance suit filed by the respondent gave evidence to
the effect that he had worked vs an ageilt of the Standard Vacuum
Oil Company with agencies at Gujranwala and neighbouring districts and that his annual income at the date of the marriage of
the respondent was about Rs. 40,000/- out of which he had to
pay Rs. 13,000/- by way of income-tax. Further, after the partition of India he came to nehra Dun and took up his abode at
Premnagar Refugee Camp but could not engage himself actively
in business on account of illness and old age but had become a
partner with 9thers in
business of ice and rice mil! in which he
h. l a Rs. 0-2-6 share. ie had never seen the accounts of the business and was content to accept whatever was given to him by his
partners which varied between Rs. 50/- a11d Rs. 200/- per ;nonth.
He had to leave all his property in Pakistan and had not received
any compensation in lieu thereof at the date when he was examined in court in March 1956.
There is some
dispute about the period during which the
parties in the first appeal had lived together as
man and wife.
According to the husband the period had come to an end in
March 1946 while according to the w!fe it had lasted up to December 1946. Admittedly, a daughter, the respondent in the second
appeal, was born out of the wedlock on August 4, 1946. The
Wife sent a lwayer's notice claiming maintenance on
July 28.
1951 and filed a suit for the purpose adding a claim to ornaments
which according to her were left with the husband. The lawyer's
notice states that the news of the birth of the daughter haC: been
conveyed to the parents by his father-in-law by registered post but
the latter had refused to accept it, that the wife had been sent by
the appellant to Gujranwala for the confinement in 1946 and
all her stridhana jewellery, silk clothes etc. had been left behind
with the appell_ant at Lucknow. On the basis that the appellant
was receiving Rs. 560/- per month as salary from Government
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KULBHUSHAN v. RAJ KUMAR! (Mitter, I.)
.675
and was earning Rs. 800/- per mon\h by way of private practice
besides income from agricultural lands, the wife's claim to maintenance was laid at the rate of half the earnings of the husband
inclusive of the maintenance of. the minor girl who had to be;
educated and brought up according to the husband's status in
life.
The suit for maintenance was .actually filed on April 27,
1954 by the wife claiming besides the value of the ornaments a
decree for arrears of maintenance amounting to Rs. 21,600/-
and future maintenance at the rate of Rs. 600 /- per month. The:
claim made in the daughter's suit filed on April 5, 1955 was at
the rate of Rs. 150/- per month.
The trial court decreed the two suits awarding maintenance·
to the wife at Rs. 100/- per month a~ from the date of the decree
i.e. 1st June, 1957 and at the.rate of Rs. 25/· per month for the·
daughter negaliving the claim to the. value of the ornaments.
The High Court allowed the claim of the wife to a monthly
maintenance of Rs. 250/- from the date of the institution of the
suit subject ta a limit i.e. that the husband would not be liable'
at any time to pay more than 25 % of the total income as accepted by the income-taJC authorities by way of maintenance. .Wtth
regard to the daughter, the High Court fixed the amount·of maintenance at Rs. ISO/- per month subject to a similar limit as in
the case of the wife, the quantum being directed not.;to exceed
15% of the average monthly income of the father;
The relevant facts as they emerge from the oral and documen·
tary evidence adduced by the parties so far as the same have a
bearing on the factors mentioned in sub,cls. (a) to !d) of s.
23 (2) besides the above may be stated briefly. We have already
noted that the father of the wife was a fairly well-to-do ;penon
at the time when the marria~e had taken place. There was how·
ever a serious reversal of hrs fortunes after the partition ol the·
country.
According to him no talk of ~y dowry had taken
place between the parties before the mafriage of his . daughter.
The appellant who had qualified himself in medicine had gone·
to G1.1jranwala from Lucknow for the marriage.
The appellant's
mother had seen the respondent several times before the nup·
tials. · His daughter had accompanied the appellant to Lahore
immediately after the marriage but had come back from there·
within 10 to 15 days.
The respondent's evidence was that except for very brief
periods from October 1945 td Merch 1946 she had scarcely
lived with her husband who was working in a medical college·
at Lucknow starting on a salary of Rs. 280/- per month. Her
SUPREME COURT REPORTS
[1971] 2 S.C.R.
.evidence was that she was not well received in her husband's
family because her
mother-in-law was disappointed
with the
.dowry brought by her.
From the oral and documentary evidence it appears that the
husband was never anxious to have the company of the wife and
her attempts to make the married life a normal one by going to
Lucknow three times did not have the desired effect.
The
husband used to write to her but stopped doing so some two
months after the birth of her daughter in August, 1946. She
.had written a number of letters to her husband from 1946
to
1\149 without receiving any reply.
On the last occasion when
she had gone to the husband at Lucknow the latter was absent
from home for four days and she could not find out whether he
was attending his college during that time.
The husband had
met her at Lucknow when she went there w;th her daughter but
made himself scarce after the first day. The husband's evidence
· shows clearly that he was disillusioned about the wife immediately after the marriage inasmuch as he found the wife to be a girl
of little education whereas he had been given to understand that
she had taken a ':Ilaster's degree in arts. He had however tried
to reconcile himself with his lot.
His statement even in exami-
·nation-in-chief does not show that he was at any time anxious
to receive his wife or to keep her with him.
He had kept ?Ip
·correspondence with her till August 1946 when he received a.
registered letter intimating him of the birth of his daughter. For
five years thereafter l ,e. from the time of the
partition of the
country, he had no news of his wife and child. In 1951 he received the lawyer's notice.
At the time of his marriage he was
a resident medical officer drawing a fixell salary of Rs. 280/-
p.m. with free quarters.
He became a lecturer in medicine in
December 194:i on a salary of Rs. 280/- with prospects of increment up to Rs. 400/-. In 1953 he became a Reader in medicine on a scale of Rs. 500-30-800. His salary at the time of his
giving evidence in court was Rs. 620/- plus 10% by way of
dearness allowance. jle also had some private practice which
came to no inore than Rs. 25,000 to Rs. 30,000/- during the
·entire period from 1945 to 1957. His bank balance had never
crossed the limit of Rs. 2,000/-. He had no other assets except
a piece of land in Ambala given by way of compensation for
lands ow:ied in Pakistan. He had purchased a car for Rs. "10,000/-
and his monthly expenses for the. upkeep of it
including the
chaffeur's pay was Rs. 70/- p.m. He had no idea of the financial
status of his father-in-law.
A few letters which passed between the husband
and the
wife and exhibited in this case show that from
May 1945 to
•October 1945 the husband was writing quite affectionate letters
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KULBHUSHAN v. RAJ KUt>iAi<: (Mitter, J.)
6,77·
to the wife.
There were only two short letters written on the
3rd and 4th January 1946 written in an altogether different vein.
The copy of the only letter of the wife which was exhibited in
this case bearing date 25th August 1948 starts off with congratulations to the husband for having received a scholarship for
going to England as reported in the Tribune. She complained
that the husband had forgotten her although she still loved him
as usual.
She mentioned that the daughter was alHays asking
after her father.
She requested the husband to look them up
before going abroad. She also sent her respects to her motherin-law.
It will be noted that the documentary evidence noted above
was of a period prior to the litigation. The wife complained in
the plaint about the strained relations between herself and her
mother-in-law on the ground of insufficiency of dowry, that
though she had gone to the husband and tried to persuade him
to do his duty by her it was of no avail, and that she was living
upon the charity of her father. The husband pleaded in defence
that the wife had gone to him in October 1945 of her own accord
without any traditional invitation and had stayed with him for
solne time off and on up to March, 1946 adding :
"During this period the defendant (himself)
was
constantly under threat to his life being in danger and
used to take all sorts of precautions and it became further clear on account of the .incompatiability of temperament that the defendant would not be able to pull
on with the plaintiff."
Taking all the circumstances into consideration and specially the status of the father of the respondent that he was giving
her a sum of Rs. 250/- p.m. by way of pocket expenses, the Civil
Judge Lucknow fixed the wife's maintenance at Rs. 100/- per
month and that of the daughter at Rs. 25/- p.m. The High
Court held that it was the husband who was guilty of desertion
and the wife was entitled to an the amenities and comforts which
would have been hers had they lived together. The High Court
also found
that the total
income in the year
1953-54 was
Rs. 10,099 /- and that in 1957 he was receiving a
salary of
Rs. 682/- per month and that his privat~ practice which was
of the order of Rs. 250/- p.m. in 1953-54 could be reasonably
expected to have gone up much higher in 1957. Accordingly it
fixed up a monthly allowance to the respondent at Rs. 250/-
for maintenance subject to a limit of
25 % p.m. of the total
income as accepted by the Income-tax authorities.
Before us
counsel for the appellant
contended
that the
courts below had ignored the fact that on the death of the wife's
678
SUPREME COURT REPORTS
(1971) 2 S.C.R.
father in 1960 she had inherited half the properties left by him
and that even during his lifetime she was in receipt' of Rs. 250/-
p.m. which should have been taken into consideration under cl.
(d) of sub-s.(2) of s. 23.
We cannot accept this contentior..
A sum of Rs. 250/- p.m. even if given to the respondent re·
_gularly was not her income but was only a bounty from her
father which she might or might not continue to get. It is hardly
believable that the father who according to his ·own evidence
·was getting no more than Rs. 200/- p.m. out of the partnership
business could afford to give Rs. 250/-p.m. to his daughter. It
would appear this statement was false and only made with a
view to strengthening a claim for the recovery of the amount
from the. husband. If it were true that the wife had inherited
any property from her father there certainly was .ample opportunity for the husband to have
affirmed an
affidavit to that
effect during th~ last ten years.
Such affidavit could have been
used even before the High Court of Allahabad which heard the
appeal in 1965.
With regard to sub-cl. ( c) the evidence makes it quite clear
·that it was· the husband who did not want the wife to live with
. ~him. The husband never seemed to have cared for .the daughter
born to him.
The fact that a registered letter was sent to him
after the birth of the daughter shows that there was complete
estrangement between the parties even before that day.
N:e1ther
'in the letters written to her nor in the evidence adduced by the
'husband fa illlY reason disclosed as to why he took a dislike to
·the wife unless it be a fact that he was disappointed in his wife
and cherished a feeling that she was not possessed of cultnre and
education of the expected standard. There does not appear to
be any substance in the wife's
allegation that indifference of
her husband stemmed from disappointment to the dowry brought
by her.
Counsel for the appellant also relied on sub-cl. ( e) to sub-s.
(2) on the ground that he had to maintain his aged mother.
Unfortunately however the husband had laid no ground to such
son of his mother and 'it appears from the evidence given by
a claim in his testimony before the court. He was not the only
him that his family owned some lands which were being· looked
after by the mother.
In the absence of any express statement
by the husband himself in his examination no reliance can be
placed on the claim made on his behalf.
Reference was made on behalf of the appellant to the deci·
sion of the Judicial Committee in Mt. Ekradeshwari v. Homeshivar(') where the Board had to deal with the case of a widow
'(1) A. I. R. [1929] P. C. 128.
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KULBHUSHAN v. RAJ. KUMARI (Mitter, J.)
679
of a deceasod in the junior line of the well-known Darbhanga
family in Bihar.
The trial court had found in that case that
the gross income of the estate was Rs. 1,50,000 per annum,
but the net income was only Rs. 33,000 per annum after payment of the interest on the heavy encumbrances on the estate in
respect of which litigation was pending between the estate and
the Maharaja of Darbhanga.
In
rejecting the claim of the
widow to an annual maintenance of Rs. 18,000/- and upholding the concurrent findings of the courts in India that the maintenance allowance should be fixed at Rs. 4,200/- per annum the
Board approved of the observations of the Subordinate Judge
to the effect that the said sUlli. would enable the lady "to live as
far as may be consistently with the position of a widow in something like the same degree of comfort and with the same reasonable luxury of Jife as she had in her husband's lifetime"
According t-0 the Board maintenance depended.
"'upon a gathering together of all the facts, of the
situation, the amount of free estate, the past life of the
mamed parties and the families, a survey of the conditions and necessities and rights of the members, on a reasonable view of change of circumstances possibly required in the future, regard being, of course, had to the
scale and mode of living, and to the age, habits, wants
and class of life of the parties."
With respect we are in entire agreement wit)i the above dictum
and in our view sub-s.(2) of s. 23 makes no departure from the
principles .enunciated by the Board, exeept perhaps to a limited
extent envisaged in sub. els. (d) and ( e) of the said sub-section.
It was argued before us that inasmuch as the Board allowed
as quantum of maintenance 1/Sth of the ne.t income of the estate
we should adopt the same rate. In our view the Board laid down
no principle related to the proportion of the free income allowable
by way of maintenance from the estate. It is to be borne in mind
that the maintenance claim was by a widow of a Brahmin family
although highly placed in liie. Here we have the case of a wife
who was neglected by her husband not in affluent circumstances
but certainly with means to support a wife on a reasonable scale
of comfort.
It was further argued before us that the High Court went wrong
in allowing maintenance at 25 % of the income of the appellant
,as found by the Income-tax Department in assessment proceedings
H
under the Income-tax Act. It was contended that not only should
a deduction be made of income-tax but also ofhouse rent, electricity charges, the expenses for maintaining a par and the con-
680
surREME COURT REPORTS
[1971] 2 S.C.R.
tribution out of salary to the provident fund of the appellant. In
our view some of these deductions are not allowable for the purpose of assessment of "ftee income" as envisaged by the Judicial
Committee.
Income-tax would certainly be deductible and so
would contributions to the provident fund which have to be made
compulsorily. No deduction is p.:rmissible for payment of house
rent or electricity charges,
The expenses for maintaining the
car fer the purpose of appellant's practice as a physician would be
deductible only so far as allowed by the income-tax authorities
i.e. in case the authorities found that it was necessary for the
appellant to maintain a car.
The question as to the date from which maintenance would
be claimable was also mooted before the Judicial Committee in
the above case. The High Court had turned down the widow's
claim to arrears of mainten\lnce. Examining the several decisions
cited before it the Board took the view that the widow was entitled to maintenance not from the date of the decree as found by
the courts below nor from the date of the suit in April 1922 but
from 1st of January 19 22 in view of the fact that it was towards
the end of the year 1921 when the widow had made up her mind
to stay on at her father's place. In this case, as already noted,
the claim to maintenance was first laid by a lawyer's notice of
1951 but the suit was filed in 1954.
The trial court decreed
maintenance from the date of the decree in 1957 but the High
Court thought fit to allow maintenance from the date of the institution of the suit. No exception can be taken to the fixing of the
date of institution of the suit as the termirrus a quo for the maintenance claimed by the respondent.
A sum of Rs. 250/- per month for the maintenance of the
wife of a person occupying the position of the appellant cannot be
said to err on the liberal side. The High Court in our opinion
very rightly fixed that sum making it subject to the limit of 25
per cent of the income as found by the Income-tax authorities.
We have no reason to take any different view.
Subject to our
observation as to the determination of the income of the appellant, the appeal against the wife is dismissed with costs.
As regards the appeal in the case of the daughter, the High
Court fixed the amount of monthly maintenance at Rs. 150 /- till
such time as she marries but so as not to exceed 15% on the
average monthly income of the father. No ground was shown as
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~o why we should make a vai'iation in the amount fixed in her
case.
We uphold the finding of the High Court in this respect.
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There will be one set of hearing fee.
V.P.S.
Appeal dismissed Y.•ith modifications.