Burden Of Proof To Establish Lack Of Means To Maintain Spouse Lies On Party Who Expresses Such Inability: Kerala High Court

A Division Bench of Justice Devan Ramachandran and Justice M. B. Snehalatha made this observation while considering an appeal against the order of the Family Court dismissing a suit for maintenance on the ground that the petitioner could not establish the financial status or fiscal condition of the respondent.

The Court observed that even though in normal circumstances, the burden is on the party who asserts a fact to prove it, an exception is provided under Section 109 of Bharatiya Sakshya Adhiniyam (BSA)/ Section 106 of the Indian Evidence Act.

As per the provision when a fact is especially within the knowledge of any person, the burden of proving that fact is upon him.

The original case was filed by a daughter against her father for maintenance and expenses for her future marriage.

The appellant challenged the court's decision saying that the respondent did not even have a case that he did not have any sufficient means to maintain the petitioner. His case was that he is not liable to maintain her daughter as she is employed as a Guest Lecturer in a college.

The appellant submitted that she is receiving a salary of just Rs. 5,000 per month and is unable to maintain herself with that amount. She said that her father had not maintained her or her sibling nor has made any provision for her marriage expenses in future. She further claimed before the Family Court that he has the means to maintain them as he is a person engaged in Real Estate Business and Financing.

The father had said that he is not in Real Estate Business or money lending activities. However, the Court noted that he has not put forth any proof to show his income or occupation. The Court held that if he fails to produce evidence regarding his income, a valid presumption will lie against him.

The Court thus sent the case back to the Family Court for reconsideration after affording an opportunity for both sides to adduce evidence.

Counsel for The Appellant: Adv. T. V. George

Case No: Mat. Appeal 113 of 2023

Case Title: Ankitha Joy v Joy Augustine @ Augusthy

Citation: 2024 LiveLaw (Ker) 546