Mrs. Sushma Arora vs Sunil Kumar Arora

S.S. Saron, J.—This appeal has been filed by the appellant Sushma Arora assailing the judgment and order dated 26.11.2007, passed by the learned Additional District Judge, Chandigarh, to the extent that inadequate lump sum maintenance of Rs. 2,50,000/- had been fixed in the petition filed by her u/s 25 of the Hindu Marriage Act, 1955 (''Act'' - for short). The marriage between the parties was dissolved by a decree of divorce by the learned Additional District Judge, Chandigarh vide judgment and decree dated 11.12.2002. After passing of the decree, the appellant on 27.03.2003 filed a petition u/s 25 of the Act for grant of permanent alimony. The parties had three children from the marriage. Besides, the appellant had no movable or immovable property. Moreover, she owned no other source of income. She was solely dependant on her brother and other near relatives. As against this, the respondent had sufficient income from the business carried on and run by him under the name and style of M/s. Girnar Art Press, Faridkot and M/s. Subhash Oil Co. Rawatsar, District Sri Ganga Nagar (Rajasthan). He was an income tax assessee and his total income from the business it was stated was Rs. 1,50,000/- per annum. The appellant claimed permanent alimony of Rs. 10,000/- per month.

The learned trial Court after considering the evidence and material on record awarded alimony of Rs. 2,50,000/- in lump sum with the rider that she would be entitled to receive only one maintenance either granted u/s 25 of the Act or u/s 125 of the Code of Criminal Procedure.

Aggrieved against the maintenance that has been awarded according to the appellant being inadequate, she has filed the present appeal.

Notice of motion was issued by this Court on 07.02.2008 and parties were directed to be present on the adjourned date.

Despite notice, no one put in appearance on behalf of the respondent.

On 03.08.2009, the appeal was admitted and it was observed that no one had put in appearance on behalf of the respondent despite service. The respondent was, therefore, proceeded against ex-parte.

Learned counsel for the appellant has submitted that the income of the respondent is more than Rs. 1,50,000/- per annum whereas he has not shown his correct income in his income tax returns.

We have given our thoughtful considerations to the contention of the learned counsel and perused the record.

The respondent placed on record his income tax returns for the years 2000-2001 (Ex. R6), 2001-2002 (Ex. R4) and 2002-2003 (Ex. R5). In the income tax return for the financial year 2000-2001 (Ex. R6) his annual income is mentioned as Rs. 62,000/-. In the return for the financial year 2001-2002 (Ex. R4), his annual income is mentioned as Rs. 64,000/- and in the return for the financial year 2002-2003 (Ex. R5), his annual income is Rs. 64,150/-.

The learned trial Court observed that it was argued by the learned counsel for the petitioner (now appellant) that it is known to everybody that income tax assessees conceal the income from the income tax department particularly those who are in private business. However, the said contention of the learned counsel may be said to be true to some extent but the Court could not make it the basis of assessment.

After considering the income of the respondent, permanent alimony of Rs. 2,50,000/- in lump sum was awarded with a rider that the appellant would be entitled to receive only maintenance either granted u/s 25 of the Act or u/s 125 of the Code of Criminal Procedure.

From the material available on record, there is nothing to dislodge the findings and conclusions reached by the learned trial Court. The learned trial Court assessed the income of the respondent on the basis of his income lax returns. The income tax returns that have been produced are documents of assessments by the income tax authorities. Presumption of truth attaches to them though it is rebuttable. The presumption, however, cannot be rebutted by oral evidence only. Besides, the principle of Section 91 of the Evidence Act enjoins that in the face of documentary evidence, oral evidence is to be normally excluded from consideration. There being nothing to disprove the income tax returns, the same are to be accepted. On the basis of the income as reflected in the said returns, the learned trial Court has correctly assessed the amount of maintenance awarded to the respondent. In the circumstances, there is no merit in the appeal and the same is, accordingly, dismissed.