Judgment:
A.S. Naidu, J.
1. Respondent Soubhagini Mohanty had filed Title Suit No. 318 of 1994 in the Court of the Learned Civil Judge (SD), Bhubaneswar praying for a decree for recovery of arrears of maintenance from her husband Upendra Chandra Patnaik, the Appellant, amounting to Rs. 72,000.00 as also for regular maintenance from him at the rate of Rs. 2,000.00 per month.
2. The averments made by her in the plaint reveal that she had married Upendra on 26th February, 1977 a Bhubaneswar. They led a blissful married life for some time, but thereafter due to torture on her, on demand of dowry by Upendra, she was compelled to leave her matrimonial house on 24th December, 1978.
3. Intervention of the family members and well-wishers of the parties yielding no result, ultimately in the year 1983 Soubhagini filed Title Suit No. 209/83 before the then Subordinate Judge (now Civil Judge, Senior Division), Bhubaneswar under Section 13 of the Hindu Marriage Act seeking divorce. During pendency of the suit though the said Court had directed payment of interim maintenance of Rs. 300.00 to Soubhagini, ultimately the suit was dismissed on 31st October, 1987. Being aggrieved by the Judgment dated 31st October, 1987 of the Subordinate Judge, the wife carried appeal which was registered as T.A. No. 7/87 and was heard by the Learned Addl. District Judge, Bhubaneswar. The Learned Addl. District Judge allowed the appeal and passed a decree of divorce on 22nd February, 1990.
4. The Appellate Court however did not pass any decree for maintenance and made an observation that it would be open to wife Soubhagini to file a separate suit for that under Section 25 of the Hindu Marriage Act. Soubhagini thereafter filed aforesaid Title Suit No. 318 of 1994 seeking a decree for maintenance from Upendra, both regular and arrears. In the plaint she averred that her husband Upendra was working as an Assistant Engineer getting a salary of about Rs. 6,000.00 a month and was possessing vast landed properties the annual income out of which was about Rs. 10,000.00. Besides, Upendra also owned buildings at Bhubaneswar, Berhampur and Bhawanipatna and receiving rent from tenants.
5. After receiving notice of the suit the husband- Defendant filed his written statement denying the plaint averments and taking the plea that his wife Soubhagini out of her will had left the matrimonial house and, as such, she was not entitled to any maintenance. He further averred that his take-home pay was only Rs. 3,270.00 per month, his gross salary being Rs. 5,457.00. Out of his monthly pay he had to pay house rent and meet other expenses and maintain his parents. Further, after the decree of divorce was passed he had married for the second time and had to maintain his family. He further averred that Soubhagini had been running a tailoring shop at Puri and earning handsome and as such she was not entitled to any maintenance from him.
6. The Trial Court after vividly discussing the evidence, both oral and documentary, came to the conclusion that the contention of Upendra that Soubhagini was running a tailoring shop and was earning Rs. 3,000.00 per month could not be substantiated. Holding Upendra liable to maintain his wife Soubhagini, and considering the admitted take-home pay of Upendra being Rs. 7,195.00 a month and his gross annual salary being Rs. 1,52,056.00, the Trial Court while decreeing the suit directed Upendra to pay maintenance to his wife Soubhagini at the rate of Rs. 1,000.00 per month from the date of disposal of T.S. No. 7 of 1987.
7. Being aggrieved by the Judgment of the Trial Court, Upendra preferred appeal which was registered as T.A. No. 6/37 of 1999/98 before the Addl. District Judge, Bhubaneswar. The Appellate Court discussing the evidence threadbare came to the conclusion that the Trial Court had not committed any illegality or irregularity. However it observed that the suit having been filed on 3-10-1994, Upendra was liable to pay maintenance to Soubhagini since three years prior to that date and not from the date of decree in T.S. No. 7 of 1987 With such modification of the decree of the Trial Court, the Appellate Court dismissed the Title Appeal.
8. In course of hearing or the Second Appeal it appeared that during pendency of this Court by Order Dated 25-7-2000 had directed Appellant Upendra to deposit a further sum of Rs. 30,000.00 before the executing Court within a period of four weeks and permitted Respondent Soubhagini to be paid the said amount. This Court further directed Appellant Upendra to go on paying the current maintenance to Soubhagini at the rate of Rs. 1,000.00 per month besides Rs. 1,000.00 towards her arrear maintenance and such payment to be paid within 1st week of the succeeding month, failing which the executing proceeding initiated before the Trial Court would proceed
9. Mr. Misra, Learned Counsel for Respondent Soubhagini submitted that the aforesaid order of this Court has not been complied with by Appellant Upendra. He further submitted that Soubhagini, now a destitute, has been passing her days through stringent financial difficulties.
10. Fact remains, there is no dispute with regard to marriage between the Appellant and Respondent and their leading a blissful married life initially, whereafter the Appellant drove the Respondent out of his house on demand of dowry followed by torture. Fact remains, the suit for divorce filed by the Respondent under Section 13 of the Hindu Marriage Act had been decreed. The said decree having not been assailed by the present Appellant has attained finality.
11. Thus it is no morel open to the Appellant to contend that the Respondent had left his house of her own and, as such, she is not entitled to any maintenance. While passing a decree of divorce the Court below did not grant any maintenance and observed that the Respondent might file a suit for that. Consequently the Respondent filed T.S. No. 318 of 1994 to which the present Second Appeal relates.
12. According to the Learned Counsel for the Respondent, during pendency of the earlier suit (T.S. No. 209/1983) the Trial Court granted interim maintenance to the Respondent at the rate of Rs. 300.00 per month but that was never paid. Accordingly in the subsequent suit, i.e. T.S. No. 318/1994, she claimed for maintenance, both regular as well as arrear.
13. According to Mr. Rao, Learned Counsel appearing for Appellant Upendra, if the direction of the Trial Court for payment of interim maintenance was not complied, after the decree was passed in the suit it was open to the Soubhagini to take steps for its realisation through the process of law. But in a fresh suit prayer for recovery of arrear maintenance cannot be entertained. Mr. Rao then raised a second contention that the Court below acted illegally in directing the Appellant to pay maintenance to Soubhagini retrospectively. He also challenged the quantum of maintenance as high and excessive.
14. Mr. S.P. Misra, Learned Counsel appearing for Respondent Soubhagini, submitted that Appellant-Jpendra has been neglecting the Respondent all through. Without scant regard for the rule of law he did neither comply with the decrees of the Courts below nor the direction of this Court. Thus he has not come to this Court with clean hands. He submitted that it is a fit case where the appeal should be dismissed on that ground alone.
15. Mr. Misra further took this Court through the evidence and submitted that both the Courts below having come to the conclusion that Appellant Upendra had failed to establish that Respondent Soubhagini was running a tailoring shop and was earning Rs. 3000.00 per month. Referring to the deposition of the owner of the house where the tailoring shop was stated to be running Mr. Misra submitted that the said witness had denied the aforesaid fact. His further submission is that the Courts below have rightly held that Appellant-Upendra had failed to establish the aforesaid fact and that being a finding of fact this Court may not interfere with that.
16. This Court heard Learned Counsel for the parties at length with reference to the evidence, both oral and documentary. Fact remains, Appellant Upendra is/was an Engineer. So far as his salary is concerned there is no dispute. The conclusion of the Courts below with regard to his income appears to be justified and needs no interference. That apart, an amount as paltry as Rs. 1,000.00 has been awarded as monthly maintenance payable to Respondent Soubhagini. Law is well settled that a wife has to be maintained in the status of her husband. The Appellant being an Engineer this Court finds no reason to interfere with the quantum of maintenance awarded by the Courts below.
17. The only other question that needs consideration is as to from which date Respondent-Soubhagini would be entitled to maintenance from Appellant Upendra. It is a fact that while granting divorce, the Courts below did not decree maintenance, though an order had been passed in the suit directing Upendra to pay interim maintenance to Soubhagini at the rate of Rs. 300.00 per month. The decrees of the Courts below reveal that while granting divorce under Section 13 of the Hindu Marriage Act, liberty was granted to Soubhagini to sue for maintenance separately.
18. A reading of Section 24 of the Hindu Marriage Act, 1955 reveals that the said Section does not provide any limitation. Thus no fetter has been imposed on the discretion of Court to award maintenance.
19. In the case of Narendra Kumar Mehta v. Smt. Suraj Mehta reported in : AIR1982AP100 , it was observed that Court has to decide the date from which maintenance is payable having regard to the facts and circumstances of each case and the conduct of the parties. In the case of N. Subramanyan v. Mrs. M.G. Saraswati, reported in AIR 1964 Mys 38, it was observed that ordinarily maintenance should be granted from the date of service of notice.
20. In the case of Gouri Das v. Pradyumna Kumar Das reported in 62 (1986) CLT 218, this Court had come to the following conclusion:
Where however there has been inordinate delay in making the application, which could have been made earlier, laches on the part of the applicant may be taken into account as a circumstance disentitling her to maintenance from a date prior to the date of the application.
21. Considering all these facts and circumstances, this Court holds that the Respondent being the wife of an Engineer and she has to be maintained befitting the status of the Appellant-husband, the maintenance of Rs. 1,000.00 to her per month as directed by the Courts below has been just and proper. This Court however directs that the said maintenance shall be paid by the Appellant-husband from the date the suit was filed and not prior.
22. While allowing the appeal in part, this Court directs that the parties shall bear their respective costs.