In cases filed by women seeking maintenance amount from their husbands under Section 125 of the Code of Criminal Procedure, the onus of proving the actual income earned by the latter rests only with the husbands and not wives, the Madras High Court Bench here has said.
Justice S. Vimala made the observation while reversing an order passed by Tuticorin Principal District Judge on October 31, 2012. The district judge had reduced from Rs.3,000 to Rs.1,000 the monthly maintenance awarded by the Chief Judicial Magistrate to a woman and her eight-year-old son.
Stating that the woman and her child could not be expected to have a hand to mouth existence, the judge said that the principal district and sessions court ought not to have interfered even with the “minimum amount” of Rs.3,000 each awarded by the CJM though they had claimed for Rs.5,000 each.
Ms. Justice Vimala pointed out that the CJM had awarded the amount only after coming to a conclusion, through documentary evidence, that the woman’s husband owned a medical shop though he contested the claim by stating he was only an employee and not the owner of the shop. However, “unfortunately” the district court had reduced the compensation amount on the ground that the husband’s income had not been proved, the judge said and observed that “the duty to prove the income is only upon the husband as per Section 106 of Indian Evidence Act.”
Holding that the petitioner’s husband had failed to prove, with substantial materials, that he was not the owner of the medical shop, the judge said: “Therefore, it is clear that he had failed to prove his income only for the purpose of avoiding payment of maintenance.”
She also referred to a judgment delivered by Calcutta High Court in a case in which a person owning a three-storey building and earning Rs.40,000 a month attempted to evade payment of maintenance to his wife by falsely claiming to be a pauper with no source of income.
Says that only husbands are liable to prove actual income in maintenance cases
