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Wife residing in USA-cannot be said that she is unable to maintain herself-HMA 24 application dismissed
CR No.7298 of 2009 (O&M) 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CR No.7298 of 2009 (O&M)
Date of decision: 17.2.2011
Harminder Kaur
…Petitioner
Versus
Gurtar Singh
…Respondent
CORAM: HON’BLE MR.JUSTICE RAM CHAND GUPTA Present: Mr.SS Salar, Advocate for the petitioner Ms.Mridula Seth, Advocate for the respondent ***
Ram Chand Gupta, J.(Oral)
The present revision petition has been filed under Article 227 of the Constitution of India for setting aside the order dated 6.10.2009 passed by learned trial court dismissing the application filed by petitioner- wife for interim maintenance under Section 24 of the Hindu Marriage Act (for brevity ‘the Act’) in main petition for divorce under Section 13 of the Act filed by the respondent-husband against petitioner-wife. I have heard learned counsel for the parties and have gone through the whole record carefully including the impugned order passed by learned trial court.
Admitted facts are that petitioner-wife is residing in United State of America. The present petition has been filed through her power of attorney. Even in the main petition, petitioner is appearing through attorney.It is pertinent to reproduce Section 24 of the Act, which reads as under:
“24. Maintenance pendente lite and expenses of proceedings.- Where in any proceeding under this Act it appears to the Court that either the wife or the husband, as the case may be, has no independent income sufficient for her or his support and the necessary expenses of the proceeding, it may, on the application of the wife or the husband, order the respondent to pay to the petitioner the expenses of the proceeding, and monthly during the proceeding such sum as, having regard to the petitioner’s own income and the income of the respondent, it may seem to the court to be reasonable.
Provided that the application for the payment of the expenses of the proceeding and such monthly sum during the proceeding, shall, as far as possible, be disposed of within sixty days from the date of service of notice on the wife or the husband, as the case may be.” Very perusal of the aforesaid provision shows that ad-interim maintenance under Section 24 of the Act is to be allowed to a party of the litigation, who is having no independent income sufficient for her or his support and the necessary expenses of the proceedings. However, in the present case, when the petitioner-wife is residing in USA, it cannot be said that she is not having any independent income sufficient for her support and the necessary expenses of the proceedings.
Learned trial court dismissed the application filed by the petitioner-wife by observing as under:-
“In view of the foregoing facts, I am also of the opinion that when Gurtar Singh is not in a position to visit USA due to his over stay at the time of his first visit in USA alongwith Harminder Kaur, as such after delivery of a female child on 24.12.2007, it was the duty of Harminder Kaur to come back to India to join the company of Gurtar Singh. Since 24.12.2007 as sufficient period of about two years has elapsed, as such in case during this period Harminder Kaur was feeling any financial problem and she was holding a return ticket to India, as such she could easily come back to India. But this long stay of Harminder Kaur in USA along with her minor baby leads to the conclusion that actually she has been impressed by the living style of USA and she might be earning sufficient income by doing some job. As such, in case she is out of job, by now she must have come back to India. This long stay of Harminder Kaur in USA shows that actually now she does not want to live in the company of Gurtar Singh and wants to lead an independent life in USA. As such, under these circumstances, in my view Harminder Kaur is not entitled to any maintenance as prayed for and to any amount of Rs.2.5 lac as litigation and other expenses. With these observations, the application moved by Harminder Kaur under Section 24 of HMA for grant of maintenance and litigation expenses as prayed for stands dismissed.”
Hence, in view of the aforementioned facts, it cannot be said that any illegality or material irregularity has been committed by learned trial court in passing the impugned order and that grave injustice or gross failure of justice has occasioned thereby, warranting interference by this Court.
Law has been well settled in Surya Dev Rai vs. Ram Chander Rai and others 2004(1) RCR (Civil), 147 by Hon’ble Apex Court that mere error of fact or law cannot be corrected in the exercise of supervisory jurisdiction of this Court. This court can interfere only when error is manifest and apparent on the face of proceedings such as when it is based on clear ignorance or utter disregard of the provisions of law and a grave injustice or gross failure of justice has occasioned thereby. There is no merit in the present revision petition. The same is, hereby, dismissed.
February 17, 2011 (RAM CHAND GUPTA) gsv JUDGE
HC asks woman to pay maintenance, give car to hubby
New Delhi, Mar 31 (PTI) A financially well-off woman has been ordered by the Delhi High Court to pay Rs 20,000 as monthly maintenance to her 55-year-old husband facing penury. Upholding a lower court”s order to the wife to pay maintenance to her husband under section 125 of the Criminal Procedure Code, Justice G S Sistani also told the woman to part with one of her four cars for the use by her husband. The high court came to the aid of the east Delhi resident, dismissing his wife”s appeal against Karkardooma district court”s order for sustenance allowance to the man. Justice Sistani insisted on the woman, to pay a “respectable” maintenance to her husband, relying upon her Income Tax returns for several years showing that her annual income touched over Rs one crore from the lucrative business of running a hostel for students in Greater Noida. Justice Sistani ordered payment of maintenance to the man accepting his counsel Bhupendra Pratap Singh”s argument that it was he who had set up the hostel for students in 2002 and made his wife its proprietor but she and their two children had thrown him out of the house and even grabbed his business. Thrown out of the house, the man had first moved the lower court for divorce. During the adjudication of his divorce plea, he had also made a plea for maintenance from his wife, following which the court had awarded him Rs 20,000 as sustenance allowance.
Wealthy wife ordered to pay maintenance to husband
2011-03-31 21:40:00
New Delhi, March 31 (IANS) Invoking the principle of gender equality, the Delhi High Court Thursday upheld a lower court order asking a woman, who runs a business with an annual turnover of about Rs.1 crore, to pay monthly maintenance of Rs.20,000 to her estranged, unemployed husband.
Justice G.S. Sistani upheld the trial court order of 2009 that awarded maintenance to Rajeev (name changed).
‘He should also enjoy the same status as his wife,’ Justice Sistani said.
He directed Priya (name changed) to pay Rs.20,000 per month to Rajeev, in addition to a Maruti Zen Car.
‘Law is equal for both of them. When husband is unemployed then the wife, who is working, should maintain him,’ said the court.
Priya had challenged the trial court order, saying a monthly payment of Rs.20,000 was on the higher side.
The couple married in 1982 and have a son and a daughter aged 26 and 24 years respectively.
Rajeev’s lawyer Bhupendra Pratap Singh has alleged that Priya and his children threw his client out of their home in 2006 after accusing him of having an affair with another woman.
‘The court also rejected Priya’s plea that as she was already looking after their children, she should be exempted from paying her husband a monthly maintenance,’ Singh said.
The court considered Priya’s flourishing business of a hotel cum paying guest in Greater Noida while fixing the maintenance.
Singh said Rajeev had purchased the hotel in his wife’s name.
‘Priya tactfully named herself as the first party in the business and property and threw him out after levelling baseless accusations,’ he said.
Rajeev had filed for divorce in 2008 in the trial court on the grounds of desertion. He later filed a maintenance plea under section 24 of the Hindu Marriage Act.
Same relief (maintenance)cannot be asked in two difference cases in two different courts
Bombay High Court
Ravindra Haribhau Karmarkar vs Mrs. Shaila Ravindra Karmarkar And Another on 17/7/1991
JUDGMENT
1. In the instant application, the substantial question of law, in the public interest, has been raised and requires decision from this Court. The substantial question of law raised is as under :
“Whether a Judicial Magistrate First Class trying an application under Section 125 of Cr.P.C., is obliged under law, to stay the proceedings, on the ground that a Civil Court of competent jurisdiction has seized the matter in a suit, in which identical pleadings are made, and same reliefs are claimed by one and the same applicant/plaintiff, in whose favour the Magistrate has already awarded interim maintenance ?”
2. The facts giving rise to the above question of law, in nutshell, are as under :
The applicant and the non-applicant are the legally married spouses. Their marriage was solmnised as per the customs and rites of Hindu Religion, some times in the year 1969 at Buldana. Out of the wed-lock, they have two issues viz. first issue is a son – Sagar who is living with the applicant while the second issue a daughter Miss Anjali is living with the non-applicant No. 1 Mrs. Shaila Karmarkar. The couple had been to Canada and U.S.A. where they stayed for 12 to 13 years along with their children. Both returned some time in the year 1984 to India and stayed at Buldana till 1986. During this period, their relations became strained and ultimately on 19/5/86, the non-applicant filed an application u/S. 125 of Cr.P.C. against the applicant for maintenance for her and the daughter. Along with the application for maintenance, the wife had also filed an application for interim maintenance @ Rs. 500/- p.m. for both the non-applicants, on the very day. The learned trial Court, after hearing the parties and considering the facts, awarded Rs. 250.0 p.m. to the wife and Rs. 150/- p.m. to the daughter, as interim relief. Since the day of the order, the applicant has paid Rs. 24,000/- to the non-applicants as maintenance allowance and that too in advance. Mr. Vidwanash, the learned counsel for the applicant submitted that the applicant has made the payment in advance till October 1991.
3. On 15th or 16th of October 1986, the non-applicant No. 1 wife filed a regular Civil Suit No. 227/86 for permanent alimony and also for arrears of maintenance. Along with the plaint, an application for the attachment of the property before judgment was also filed. On 28-4-1989, the Joint Civil Judge, Jr. Dn., Buldana passed the following order on the said application :
“Perused the application and say at Exh. 64. The prayer of the applicant is that Order of attachment before Judgment be passed or direct the defendants to furnish solvent surety of Rs. one lakh. By way of Exh. 64, the defendants showed their willingness to furnish surety of one lakh. Hence, the defendants are directed to furnish solvent surety of Rs. one lakh”.
In compliance with the above order, on behalf of the defendants, Shri W. Y. Godbole, resident of Nagpur has furnished the solvent surety before the Joint Civil Judge, Jr. Dn., Buldana. On 20/3/1991, the applicant has filed his written statement in the said Civil Suit, denying the claim of the non-applicants. The case is now posted for filing the documents.
4. The applicant filed an application to stay the proceedings of Misc. Criminal Case No. 114/86 before the Judicial Magistrate, First Class, Buldana, till the decision of the Regular Civil Suit No. 227/86. The application was opposed. After hearing the parties, the learned J.M.F.C., Buldana, rejected the application filed by the applicant for stay of the Misc. Criminal Case No. 114/86 vide his order dated 24-1-1991.
5. Being aggrieved by the order passed by the learned J.M.F.C. Buldana in Misc. Criminal Case No. 114/86 dated 24-1-1991, the applicant approached this Court.
6. Mr. Vidwans, the learned counsel for the applicant submitted that though the non-applicant wife instituted two proceedings, one in the Criminal Court and another in the Civil Court, but the reliefs are one and the same. The relief sought in the application u/s. 125 of Cr.P.C. is to the following effect “to direct the opponent to pay the subsistence allowance of Rs. 500/- p.m. each to both the applicants Nos. 1 and 2″.
In the Reg. C.S. No. 227/86, the relief claimed as per prayer clause (i) is that “It is, therefore, prayed that this Hon’ble Court be pleased to decree the claim of the plaintiffs by passing necessary orders of maintenance against the defendant, directing him to pay arrears of Rs. 7000/- to the plaintiffs and further be ordered him to provide maintenance allowance @ Rs. 500/0 p.m. each to plaintiffs i.e. total Rs. 1000/- p.m. from the date of filing of this suit and onwards permanently”.
The prayers made in the application u/s. 125 of Cr.P.C. and in the Reg. C.S. No. 227/86 are one and the same.
7. Mr. Vidwans, the learned counsel for the applicant submitted that practically pleadings are identical and verbatim in both the cases. He took me through the pleadings of both cases and demonstrated that practically the paras are identical as much as they are in verbatim. Following paras of the application u/S. 125 of Cr.P.C. are identical to the paras of the plaintiff in Reg. Civil Suit.
Application u/S. 125 Reg. C.S. No. 227/86 of Cr.P.C.
4 6 5 7 6 8 7 9 8 10 9 11 10 12 11 13 12 14 13 15 14 16
Therefore, according to Mr. Vidwans, in both the litigations, the fate would be based on the same evidence.
8. The findings given by the Civil Court are binding on the Criminal Court. Therefore, as the matter is seized with the Civil Court i.e. in respect of the maintenance allowance and that too the similar amount which she alleged to be entitled in the application u/s. 125 of Cr.P.C., instead multiplying the litigations and to harass the applicant to lead the evidence in different two courts, in the interest of justice, the application pending in the court of J.M.F.C., Buldana be stayed till the decision in the Reg. C.S. No. 227/86. It is further submitted that any verdict given by the Criminal Court is not binding on the Civil Court but it is vice versa. The reliefs being the one and the same, the evidence will be common, so also the documents, it is the interest of both the parties to get the verdict from the Civil Court.
9. Mr. Vidwans, the learned counsel for the applicant relied upon the case of M/s. Bush India Ltd. v. Lekharaj Pohoomal Kewalramani reported in 1984 Criminal Law Journal 346 (Bombay). Their Lordships observed in para 7 as follows (at page 348) :
“I fail to understand what is the qualitative difference between the two stands. The parties are merely formulating the same propositions in the two proceedings in different words. The distinction made by the learned Judge is without any difference, as observed by the learned Magistrate and as is also apparent from the record, the dispute in the criminal complaint also revolves on the pivot whether or not respondents are the sole agents of the petitioners for sale and export of the petitioner’s goods to the countries concerned. The learned Addl. Sessions Judge’s interpretation is clearly wrong so far as this aspect is concerned”.
In para 8, Their Lordships observed that :
“The other two reasons given by the learned Magistrate and indicated in para 6 supra, are also sound and the learned Addl. Judge has not bothered himself to consider them. The learned Magistrate’s order staying the prosecution was eminently just and the learned Addl. Sessions Judge should not have interfered with it in revision”.
The reliance also been placed on the case of William J. W. Ross v. Eleanor Agnes Ross reported in AIR 1932 Sind 210 (DB) : (1933 (34) Cri LJ 548). In that case before their Lordships, the wife instituted the proceedings u/Ss. 488 and 489 of Cr.P.C. and the husband had already instituted the proceedings for divorce in the Divorce Corut. Their Lordships observed that -
“I am of opinion that the learned Magistrate would have exercised a better discretion on receiving an application u/s. 488 against a husband who had already instituted proceedings in the divorce Court, if he had referred the applicant for her remedy to the Civil Court. I do not think that it was the intention of the legislature in S. 489 to encourage applicants to resort to criminal Courts up to the very time when an order was passed by a competent Civil Court. As the Civil Court was seized of the matter, it seems to me clear, it is better that the Civil Court should dispose of it, and in the circumstances which have arisen in the present case, I am of opinion that a High Court would stay proceedings in a criminal Court until the conclusion of the divorce petition. We accordingly direct the learned Magistrate to stay the hearing of the application u/s. 488, Cr.P.C., by adjournment from time to time until the conclusion of the divorce petition”.
10. On behalf of the non-applicants, Mr. Khapre, the learned counsel, opposed the application and submitted that the remedies in the criminal Court and Civil Court are altogether different. According to him, the proceedings instituted in the Criminal Court u/s. 125 of Cr.P.C. are the summary proceedings for the immediate relief to the wife and other dependents. In the proceedings u/s 125 Cr.P.C. the Court has jurisdiction to grant maintenance allowance to extent of Rs. 500/0 to each claimant. If this amount is inadequate according to clainming spouse or other claimants, the only remedy available is Civil Suit or petition u/s. 25 of the Hindu Marriage Act, 1955.
11. In a case u/S. 125 of Cr.P.C. the non-applicant Smt. Shaila Karmarkar, entered in the witness box and now the case is posed for her cross-examination. He further submitted that the principles of res judicata are not applicable in the instant case because though the reliefs claimed in both the proceedings are one and the same, the effect is not one. He further submitted that this Court has no power under any statute to stay the proceedings. To substantiate his submissions, he placed reliance on the case of Mohanlal v. Sau. Kamlabai reported in 1985 II DMC 322 (Bom) (Nagpur Bench, S.B.). In the case before his Lordship, the wife instituted the proceedings u/s. 125 of Cr.P.C. and also husband filed an application for Judicial Separation and alimony in the Civil Court against the applicant under the provisions of the Hindu Marriage Act. An ex parte order was passed against the husband and she was awarded maintenance of Rs. 300/- p.m. The Civil Court granted Rs. 100/- p.m. as permanent alimony to the wife. In that case, the issue was raised to the effect that the principle of res judicate is applicable. His Lordship held that the Section 11 of the C.P.C. as such, is not, in terms, applicable to the proceedings u/s. 125 of Cr.P.C.
12. In the instant case before me, the question of res judicata is not involved. Shri Vidwans, the learned counsel for the applicant also has not raised this issue. Therefore, the observations made in the case supra are not of any assistance to the non-applicants.
13. Reliance also been palaced on the case of In re Taralakshmi Manuprasad reported in AIR 1958 Bom 499 (DB) : (1939 (40) Cri LJ 91). In that case their Lordships observed that :
“The mere existence of a decree of a Civil Court directing a certain sum to be paid for maintenance does not oust the jurisdiction of a Magistrate in a proper case to make an order u/s. 488. Of course the existence of such a decree is relevant when the Magistrate is considering what form of order he should make u/s. 488 and the Magistrate should make it clear in his order that anything paid under the decree of the Civil Court will be taken into account against anything which he may order to be paid”.
In the instant case before me, there is no decree passed by the Civil Court. For the same relief, the non-applicant wife knocked the doors of the Civil Court as well as of Criminal Court. So, the facts of the case which was before their Lordships of the Bombay High Court are altogether different having no relation with the facts and circumstances before me and, therefore, it is also not of any assistance.
14. Reliance has also been placed on the case of A. Joseph Fernando v. Maria Navis reported in (1987) II DMC 342 (Madras, S.B.). It is held that :
“The maintenance proceeding u/s. 125, Cr.P.C. was initiated earlier though the order in the civil suit was passed earlier. In such circumstances it is manifest that a petition u/s. 125 of Cr.P.C. is perfectly maintainable notwithstanding a Civil Court’s order for maintenance. The criminal proceedings can not be quashed”.
In the instant application, the applicant has not prayed for quashing the criminal proceedings i.e. application presented u/s. 125 of Cr.P.C. The only limited prayer is that the matter being seized with the Civil Court, till the disposal of the Reg. C.S. No. 227/86, the proceedings instituted u/s. 125 of Cr.P.C. be stayed. Therefore, the facts of the case decided by the learned Court in the case supra and the facts before me, being altogether different, this case is also not of any assistance to the non-applicants.
15. In a case of Challapalli Sugars Ltd. v. Swadeshi Sugar Supply Pvt. Ltd. (DB), in respect of the same subject matter, there were two suits instituted though the relief was based on different cause of action. The subject-matter in controversy in both the suits being the same, arises out of the same contract and from the same transaction, the later suit was stayed till the decision of the earlier suit.
16. Considering the facts and circumstances and the submissions made by the learned counsel for the parties, the relief in both the cases, being one and the same, and the Civil Court being seized with the matter, in the interest of justice, the proceeding pending in the court of J.M.F.C. Buldana, be stayed till the decision of the Reg. C.S. No. 277/86.
17. The non-applicants could not be allowed to ride two horses at a time (two simultaneous proceedings in two different Coruts) and could not be permitted to continue the maintenance proceedings u/s. 125 of Cr.P.C. when they had already chosen the alternative remedy in Reg. C.S. No. 227/86. It is well settled law that the judgment of Civil Court shall prevail over the judgment of Criminal Court. The natural justice demands that parallel proceedings cannot be allowed to continue in different Courts.
18. The Civil Judge, Sr. Dn. Buldana, is directed to expedite the matter. Staying the proceedings pending in the Court of J.M.F.C., Buldana, will not cause any pre-judice to the non-applicants because they are already receiving the maintenance allowance @ Rs. 250/- p.m. for wife and Rs. 150/- p.m. for the daughter.
19. In these terms the application is allowed. Rule made absolute.
20. Ordered accordingly.
Interim maintenance cannot be increased based on husband’s salary hike
Bombay High Court
1
PGK
IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE
Writ Petition No.6686 of 2009
Ritula Singh .. .. Petitioner vs.
Lt.Col. Rajeshwar Singh .. Respondent
Ms.Sumangala with Ms.Veena Goud for Petitioner. Mr.G.S. Hegde for Respondent.
—-
CORAM : SMT.ROSHAN DALVI, J.
DATED : 26th February, 2010
ORAL ORDER :
1.Rule, returnable forthwith.
2.The parties are wife and husband. They have been married since 22.10.1986. The wife has filed a Divorce Petition in the Family Court in 2008. She has applied for interim maintenance under Section 24 of the Hindu Marriage Act, 1955 for herself and her 2 daughters admittedly born on 13.10.1988 and 4.1.1991. Her Advocate argued that the daughters are 19 years and 17 years old respectively which is arithmetically incorrect. The daughters are 21 years and 19 years, respectively.
3. The interim maintenance application would have to be considered for the Petitioner-wife under Section 24 of the Hindu Marriage Act and for her children under Section 20(2) and (3) of the Hindu Adoptions and Maintenance Act,1956. The learned Judge has considered the application on behalf of three of them. The wife has been refused the interim maintenance. The children have been granted interim maintenance of Rs.3,000/- each. They attend college and are dependent children though they have attained majority.
4.The wife has not been granted any interim maintenance. She has challenged that part of the order. The Petitioner-wife is a teacher. She earns Rs.35,000/-. The interim maintenance has to be granted under Section 24 of the Hindu Marriage Act, 1955, which runs thus:-
24. Maintenance, pendente lite and expenses of proceedings.- Where in any proceeding under this Act it appears to the Court that either the wife or the husband, as the case may be, has no independent income sufficient for her or his support and the necessary expenses of the proceeding, it may, on the application of the wife or the husband, order the respondent to pay to the petitioner the expenses of the proceeding, it may, on the application of the wife or the husband, order the respondent to pay to the petitioner the expenses of the proceeding, and monthly during the proceeding such sum as, having regard to the petitioner’s own income and the income of the respondent, it may seem to the Court to be reasonable.
Under that section, the Court has to see whether the Petitioner-wife earns any independent income sufficient for her support and the expenses of the proceedings. Rs. 35,000/- can be taken to be sufficient for the support of the Petitioner pending the Petition.
5.The Petition has reached the stage of the cross- examination of the Petitioner-wife who has filed the Petition. She has instead taken out the application for enhanced amendment of the Petition to claim maintenance on the ground that the husband s income has been enhanced under the 6th Pay Commission Report. The husband is a Military Officer. He used to earn Rs. 35,000/-. He now earns Rs.65,000/-. The wife has been refused the interim maintenance on the ground that she has independent income sufficient to maintain herself. Because the husband starts earning additional amount, she cannot be taken not to have income sufficient to maintain herself ipso facto.
6.This rule of law applies to interim applications. That is because extensive evidence relating to all the assets and properties of the husband as also his income from all sources cannot be looked into in an application for interim maintenance.
7.The wife would be entitled to alimony, depending upon the income of the husband and his assets and properties at the final hearing of the Petition for divorce when the permanent alimony and maintenance would be considered under Section 25 of the Hindu Marriage Act, which runs thus:-
25. Permanent alimony and maintenance.- (1) Any Court exercising jurisdiction under the Act may, at the time of passing any decree or at any time subsequent thereto, on application made to it for the purpose by either the wife or the husband, as the case may be, order that the respondent shall pay to the applicant for her or his maintenance and support such gross sum or such monthly or periodical sum for a term not exceeding the life of the applicant as, having regard to the respondent s own income and other property, if any, the income and other property of the applicant, the conduct of the parties and other circumstances of the case, it may seem to the Court to be just, and any such payment maybe secured, if necessary, by a charge on the immovable property of the respondent.
Consequently, for determination of the permanent alimony and maintenance, the Petitioner s other income and other properties as also the Respondent s income and other properties as also conduct of the parties and other circumstances would be seen by the Court upon the entire evidence led in that behalf. It is at that time that the wife s equal right to the property of the husband would be adjudicated upon. It is at that time that the status the parties enjoyed whilst their marriage continued would also be seen from the evidence which is led.
8.It may be mentioned that the Petitioner being a wife of 22 years before the Petition came to be filed would certainly be entitled to an equal share in the assets and propitiates of the husband as also in the amount of alimony upon the law of equality of spouses laid down since 1979 in the case ofDinesh Gijubhai Mehta vs. Smt.Usha Dinesh Mehta, AIR 1979 Bombay 173 DB.
9.However, since the Petitioner has income sufficient for her maintenance that principle of equality would essentially apply at the final hearing after the entire evidence is recorded which would be soon hereafter, the insistence upon being given interim maintenance and applying for enhancement thereof is counter productive and a cause for delay of final relief.
10.The distinction between the law laid down under Sections 24 and 25 of the Hindu Marriage Act is distinct and clear. It is so because of the specific circumstances that the Court would require to see at the time of each of these applications. It may be clarified that for considering the application for interim maintenance under Section 24 of the Hindu Marriage Act, which is decided upon affidavits of the parties alone, the Court cannot and would not consider the precise income, standard of living, conduct of the parties, other properties and other circumstances of the case. The amount that would have to be granted for the maintenance of the wife would be for her support and necessary expenses of the proceedings. That amount would be granted if she does not have income sufficient for her support and necessary expenses of the proceedings. The ambit for grant of interim maintenance under Section 24 is, therefore, far narrower than the ambit under Section 25. It is the distinction between the two sections which is required to be understood for the Court to grant the maintenance amounts thereunder.
11.Under Section 25 of the Hindu Marriage Act as aforesaid, the entire evidence relating to the income, properties of both the parties and their conduct and circumstances would be and can be seen. That is because the evidence is led in that behalf at the time of final hearing.
12.Consequently, the impugned order not granting any maintenance pending the Petition to a wife who earns Rs.35,000/- per month cannot be faulted. Of course, she would be entitled to permanent alimony and maintenance from the date of the Petition itself on the merits of her case which would be adjudicated upon on completely different parameters which can be seen from the evidence that she would lead.
13.The Advocate on behalf of the husband states that the Petition is adjourned to 17th April 2009 for her cross-examination and the Respondent would go on with the hearing on that day.
14.The Advocate for the wife states that she has applied for amendment of the Petition to claim an enhanced amount of maintenance consequent upon the enhancement of the salary of the Respondent. Such amendment would certainly be allowed by the Family Court as the wife would be ultimately granted any such amount upon she proving the additional income for grant of additional maintenance amount at the final hearing of the Petition on merits. In view of the aforesaid statement of the Advocate of the husband, I am sure, the husband would not, as he cannot, needlessly oppose such amendment. The case of both the parties would then be considered on merits and the sooner it is considered the better for both.
15.Under the aforesaid circumstances taken together, the order of maintenance is not required to be interfered with.
16.The Writ Petition is dismissed and Rule is discharged except for the clarification that the parties shall proceed with the Petition as allowed to be amended by the learned Judge of the Family Court on 17.4.2010 and thereafter from day to day as fixed by the learned Judge.
17.No order as to costs.
(SMT.ROSHAN DALVI, J.)
No maintenance for earning wife.
Karnataka High Court
Dr. E. Shanthi vs Dr. H.K. Vasudev on 22/8/2005
ORDER
Manjunath, J.
1. Petitioner is the wife of the respondent. Both of them are Doctors by qualification. The respondent is working as a Medical officer in a Government Hospital. The respondent has filed a divorce petition in MC. No. 57/2001 on the file of the Family Court at Mysore. In the said proceedings, the petitioner filed an application under Section 24 of the Hindu Marriage Act claiming an interim maintenance of Rs. 5,000/ per month and litigation expenses of Rs. 50,000/-. The said application is dismissed by the Trial Court on the ground that the petitioner is also attending as a Doctor in “Hariharan Clinic”, which according to the respondent is a very famous clinic in Chennai. This order is called in question in this writ petition.
2. According to the learned Counsel for the petitioner, the name of the petitioner appears on the board of Hariharan Clinic as one of the consulting Doctors and the said name appears along with her brother prior to marriage and even though she is not practicing as a Doctor, her name on the board continuous and therefore, petitioner is entitled for a separate maintenance.
3. Admittedly, petitioner is residing with her parents at Chennai and whose brother is also a doctor. When the petitioner was practicing prior to marriage, when her name continuous on the board of the clinic, the Trial Court is justified in rejecting the application of the petitioner. There is no difficulty for the petitioner to work as a Doctor. Even if the petitioner is not working as a doctor in the clinic of her brother, since there are no impediments for her to work along with her brother as a doctor and when she is capable of earning, this Court is of the opinion that the Trial Court is justified in rejecting the application of the petitioner. When the petitioner is capable of earning and having required qualification and that when she was working as a doctor prior to marriage, there cannot be any difficulty for her to continue the same profession. Therefore, Section 24 of the Hindu Marriage Act cannot come to the aid of such persons. Accordingly, this petition has to be rejected.
4. At this stage, learned Counsel for the petitioner submits that out of the Wed-lock parties have got a minor daughter who is studying in school. When the parties are having a daughter out of their wedlock, it is the responsibility of the father to maintain the child. Admittedly, the respondent is working as a Medical Officer at Chamarajanagar, considering his salary and the fact that he has to maintain his aged parents, this Court directs the respondent herein to pay a sum of Rs. 2,500/- per month from the date of filing of this petition before this Court to maintain the child. Accordingly, the petition is disposed of.
No interim maintenance to earning wife having sufficient means
(2003) 1 MLJ 752 (Mad)
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Present : P.Sathasivam, J.
Case Number(s) : C.R.P.(PD) No.1929 of 2002 and C.M.P. No.16264 of2002
Judgement Date : Friday 21st of February 2003
Manokaran alias Ramamoorthy …..Appellant(s)
Versus
M.Devaki …..Respondent(s)
Hindu Marriage Act (XXV of 1955), Sec.24 — Petition for divorcepending — Wife filing a petition for grant of interim maintenanceand litigation expenses — The party making the claim should not havesufficient independent income.
The provision would show that for grant of maintenance pendentelite,the party should not have sufficient independent income forher/his support. In other words, if it is found that the applicanthas sufficient income for his/her support, no amount can be allowedas maintenance pendente liteas per Sec.24 of the Act. [Para.5] `Under Sec.24 of the Hindu Marriage Act, maintenance pendentelite can be awarded only if the party asking for maintenance showshe/she has no sufficient independent income’.
Cases ReferredKumaresan v. Aswathi : [2002] 2 M.L.J. 760
N.Manokaran, for Petitioner.
V.Shivakumar, for P.B.Ramanujam, for Respondent.
The Court made the following
ORDER: Aggrieved by the order of the Principal Family Court, Madrasdated 25.7.2002, made in I.A. No.1058 of 2001 in O.P. No.1310 of2000, granting interim maintenance at the rate of Rs.750 per monthand litigation expenses of Rs.1,500, the husband has preferred theabove revision under Art.227 of the Constitution.
2. The petitioner/ husband has preferred the said O.P. for divorceunder Sec.13(1)(1a) and (1b) of the Hindu Marriage Act. Pending thesaid petition, the wife/ respondent herein has filed I.A. No.1058 of2001 claiming interim maintenance at the rate of Rs.2,000 per monthand Rs.5,000 towards litigation expenses under Sec.24 of the HinduMarriage Act. The said application was resisted by the husbandstating that she is working in a private concern and drawing asalary of Rs.4,500 per month. It is also stated that he is earningonly Rs.2,000 per month. Before the Family Court, salary certificateof the husband dated 10.6.2002 has been marked as Ex.R-1. Based onEx.R-1, after finding that he is earning Rs.70 per day by working inSenthil Auto Garage, the Family Court has concluded that the wife isentitled to interim maintenance at the rate of Rs.750 per month fromthe date of petition till the disposal of O.P. and also awardedRs.1,500 towards litigation expenses.
3. The only question to be considered in this revision is whetherthe wife/ respondent herein has made out a case for interimmaintenance in terms of Sec.24 of the Hindu Marriage Act.
4. Mr.N. Manokaran, learned counsel for the petitioner, afterdrawing my attention to Sec.24 of the said Act and the admission ofthe wife in the counter statement filed in the main petition viz.,O.P. No.1310 of 2000, would contend that since she is earningsizeable income and in view of the fact that the petitioner/ husbandis getting only Rs.2,000 per month, the Family Court has committedan error in granting interim maintenance and litigation expenses.
5. There is no dispute that the petition has been filed by therespondent/ wife claiming maintenance pendente lite and expenses ofthe proceedings under Sec.24 of the Hindu Marriage Act. Section 24reads thus:”24. Maintenance pendente lite and expenses of proceedings: Where inany proceedings under this Act it appears to the Court that eitherthe wife or the husband, as the case may be, has no independentincome sufficient for her or his support and the necessary expensesof the proceeding, it may, on the application of the wife or the husband, order the respondent to pay to the petitioner the expensesof the proceeding, and monthly during the proceeding such sum as,having regard to the petitioner’s own income and the income of the respondent, it may seem to the Court to be reasonable.”The above provision would show that for grant of maintenance pendente lite, the party should not have sufficient independent income for her/his support. In other words, if it is found that theapplicant has found sufficient income for his/her support, no amountcan be allowed as maintenance pendente lite as per Sec.24 of theAct. While construing the very same provision in similarcircumstance, A.S. Venkatachamoorthy, J., in Kumaresan v. Aswathi,(2002)2 M.L.J. 760 has arrived a similar conclusion. Now I shallconsider whether the respondent/wife has any independent income which is sufficient for her survival and for the proceedings. Inpara 10 of the counter statement filed by the wife in O.P. No.1310 of 2000, she herself admitted that,
Now the respondent (wife) had got her present job in private…..body and running her life with the salary and staying with her brother…”. The above statement shows that she is employed in aprivate concern, getting salary and staying with her brother. In theapplication for interim maintenance, the husband has filed a counteraffidavit wherein he has specifically stated that his wife isdrawing a salary of Rs.4,500 from a private concern. In para 5 ofthe counter affidavit it is stated that,
“5. The respondent denies all the allegations in para 5 and put thepetitioner strict proof of the same. The averment about I amliberally suffering without financial assistants is put to strictproof since this petitioner is working in the organization Kumari Neruvanam at No.40, Venkat Narayanan Road, T.Nagar, Chennai-600 017,and drawing a salary of Rs.4,500 she also disclosed this before theAll Women Police Station, Thousand Lights,and this petitioner also admitted in her counter statement that she is working in private and running her life. But contradictory to her statement in counter statement now this petitioner come forward with a plea that she iswithout financial assistance. This petitioner is working as typistand main organizer for a programme in Neingalum Pachalar Agalam aprogramme telecaste in Raj T.V. during Sunday 8.00 a.m., from hercompany Kumari Neruvanam. The averment about that this respondent isowner of the “Venkataswari Turning Works” at Muthumariamman KoilStreet, Anna Nagar, Chennai-600 040 is put to strict proof sincethis respondent is not the owner of the said company and A.Loganathan is the owner of the said Turning works and thisrespondent is working in Senthil Auto Garage at Annai Sathya Nagar,Anna Nagar (East) Chennai-600 102, and drawing a salary of Rs.2,000 and this respondent need not to give any monetary assistance to the petitioner for her claim.
“The above averment shows that the petitioner herein husband isworking in Senthil Auto Garage, Annai Sathya Nagar, Chennai-102 and drawing a salary of Rs.2,000 per month. Likewise, it is also seenthat the respondent herein wife is working in Raj T.V. and drawing asalary of Rs.4,500. Though the said aspect has not been substantiated, I have already referred to the admission of the respondent herein in her counter statement filed in the main O.P.No.1310 of 2000 wherein she admitted that she secured a private joband is getting salary and staying with her brother. On the otherhand, it is established particularly from Ex. R-1, the petitionerherein is getting only Rs.70 per day or Rs.2,000 per month byworking in Senthil Auto Garage. I have already referred to the language used in Sec.24 which makes it clear that for grant of maintenance pendente lite the party should not have sufficientindependent income for her support. In the light of the materialsavailable, particularly the admitted case of the respondent/ wife,she is employed in a private Satelite T.V. and earning for herlivelihood staying with her brother, it cannot be construed that sheis not having sufficient independent income. The Family Court lost its sight to consider the above material aspect.
6. In the light of what is stated above, the impugned order of thePrincipal Family Court dated 25.7.2002, made in I.A. No.1058 of 2001in O.P. No.1310 of 2000 is set aside and the civil revision petition is allowed. No costs. It is made clear that pending the divorce proceedings at any point of time if the applicant/ wife establishesthat she has no sufficient independent income for her support, it isopen to her to claim maintenance pendente lite.
Consequently, C.M.P.No.16264 of 2002 is closed.R.S. —– Petition allowed.
“No Maintenance to Earning Spouse”, “Interim Maintenance not for parity between spouses”
IN THE HIGH COURT OF DELHI AT NEW DELHI Date of Reserve: August 18, 2008 Date of Order: September 18,
2008
CM(M) 949/2008
18.09.2008
Manish Kumar …Petitioner
Through: Mr. Rakesh Tiku with Mr. Abhinav Bajaj, Advocate Versus
Mrs. Pratibha
…Respondent
Through: Mr. Sanjeev Sindhwani and Ms. Ekta Kalra, Advocates JUSTICE SHIV NARAYAN DHINGRA
1. Whether reporters of local papers may be allowed to see the judgment?
Yes.
2. To be referred to the reporter or not? Yes.
3. Whether judgment should be reported in Digest? Yes. JUDGMENT:
1. By this petition under Article 227 of the Constitution of India, the petitioner has assailed an order 25th July 2008 passed by learned trial court
whereby the learned ADJ awarded a maintenance of Rs.7,500/- per month to the respondent wife under Section 24 of the Hindu Marriage Act (HMA).
2. There is no dispute about the fact that both husband and wife were gainfully employed. Wife claimed that her monthly salary was Rs.28,500 whereas her husband was having monthly salary of Rs.90,000/- per month. She claimed a maintenance of Rs.30,000/- per month.
3. Both husband and wife were working in private companies and their salary statements and other record was placed before the trial court. The trial court found that the take-home salary of wife was Rs.41,900/- and that of the husband was Rs.75,761/- per month respectively. Finding that the salary of the husband was more than the salary of the wife, the trial court granted maintenance of Rs.7,500/- to the wife.
4. I consider that while awarding maintenance to the wife, the trial court has lost sight of the basic ingredients of Section 24. Section 24 of HMA reads as follows:
Section 24. Maintenance pendente lite and expenses of proceedings.- Where in any proceeding under this Act it appears to the Court that either the wife or the husband, as the case may be, has no independent income sufficient for her or his support and the necessary expenses of the proceeding, it may, on the application of the wife or the husband, order the respondent to pay the petitioner the expenses of the proceeding such sum as, having regard to the petitioner’s own income and the income of the respondent, it may seem to the Court to be reasonable?.
5. From the perusal of Section 24, it is abundantly clear that the object and intent of this Section is to enable the husband or the wife, as the case may be, who has no independent source of income for his or her support and necessary expense of proceedings under the Act to obtain maintenance expenses pendent lite so that the proceedings may be continued without any hardships on his or her part. The benefits granted under this Section are only temporary in nature and there are other provisions of law where a wife, who is not able to maintain herself, can claim maintenance/permanent alimony from the husband e.g.
Section 25 of HMA or under provisions of Hindu Adoption and Maintenance Act. The provisions of this Section are not meant for equivalising the income of wife with that of husband but are meant to see that where divorce or other proceedings are filed, either of the party should not suffer because of paucity of source of income and the Court should pass an order even during the pendency of such a petition, for maintenance and litigation expenses. Where a wife has no income or is without any support for maintaining herself, the Court has to pass an order considering the income and living status of the husband. However, where the wife and her husband both are earning and both are having good salary, merely because there is some salary difference, an order is not required to be passed under Section 24 of HMA.
6. In the instant case, it is nowhere pleaded by the wife in her application under Section 24 that the income being earned by her was not sufficient for her maintenance. Her contention in the application was that the petitioner was liable to bring her to the same status and station as if she was living with him in the matrimonial home. In my view, this is not the intent and purpose of Section 24. The purpose and intent of 24 is quite different as stated above.
7. The salary slips of the wife has been placed on record which show that she was having salary in the range of around Rs.50,000/- per month. Her statement of salary account from February 2007 to January 2008 shows that she had a take-home salary during this year of Rs.6,80,188/-. The average monthly salary was thus Rs.56,682/-. This salary was after deduction of tax, employees provident fund, PF contribution etc. Her gross salary inclusive of tax, provident fund etc was around Rs.80,000/- per month. A person who is earning this much of salary can very well maintain herself with such a standard which may be envy of many and under no stretch of imagination it can be said that the income earned by her was not enough to maintain her. There was no other liability on her. There is no offspring from this wedlock.
8. In view of my foregoing discussion, I consider that the trial court has wrongly allowed maintenance to the respondent wife. The petition is allowed and the impugned order dated 25th July 2008, granting maintenance of Rs.7500/- per month to the wife, is hereby set aside. However, the petitioner would be liable to pay the litigation expenses, as ordered by the trial court. No order as to costs.
September 18, 2008 SHIV NARAYAN DHINGRA J. rd
CMM.949/2008 Manish Kumar vs. Pratibha Page 1 Of 4
Wife needs to prove that she is not working
IN THE HIGH COURT OF DELHI AT NEW DELHI
SUBJECT : Hindu Marriage Act
Date of Reserve: 28.7.2008
Date of Order: 5.9.2008
CM(M) No. 1534/2006
Parnab Kumar Chakarborthy … Petitioner
Through: Mr. (Dr.) J.C.Vashist, Advocate
Versus
Ruma Chakarborthy … Respondents
Through: Ms. Manali Singhal, Advocate
JUSTICE SHIV NARAYAN DHINGRA
JUDGMENT
The petitioner is aggrieved by an order dated 22.8.2006 passed by the
learned ADJ on application under Section 24 of the Hindu Marriage Act as
well as on application under Section 151 of the husband making a prayer for
giving visitation rights to him to visit his daughter.
2. The learned ADJ after considering the gross salary of the husband,
working as Shift In-charge, as Rs.6625/-, fixed a maintenance of Rs.2,000/-
per month for wife and daughter to be paid from the date of moving of the
application and also fixed Rs.5,000/- as litigation charges. He directed the
petitioner to clear arrears within a period of five months and to pay current
maintenance by 10th day of each succeeding month w.e.f. September, 2006
and ordered that in case of default of payment of the current monthly
maintenance, the husband would have to pay 20% extra of such maintenance
amount. On visitation rights, the learned ADJ observed that he had called the
minor daughter, who did not respond positively towards the father and
started crying in the Court. He therefore, considered that no fruitful purpose
would be served by granting visitation rights since the child was not having
positive response to the father.
3. The petitioner in his petition has stated that the learned Court has taken
into account his gross salary while his net salary after deduction was hardly
Rs.5,000/-. He had to maintain two houses. He was working in Bhiwadi in
Rajasthan as Shift In charge, his daughter from the earlier deceased wife was
living at his ancestral house at Rai Barelli with his ailing mother. Thus, he
had to maintain two units; one at Rai Barelli and other at Rajasthan. He also
pleaded that the learned ADJ had not taken into account the fact that the
wife was a professional beautician, who had done diploma in beauty-culture
and hair dressing and in the bio data supplied to him at the time of marriage,
it was stated that she was a freelance beautician doing the work of
beautician. He further stated that the account of expenditure given by the
wife would show that she was living in luxury, which was not possible out
of the meager income of her father, who was a retired Naval Officer and
since she was qualified and was spending a lot so, there was a presumption
that she was earning and she had not come to the Court with clean hands.
4. A perusal of salary certificate of the petitioner would show that while his
gross salary was Rs.6625/- deductions of EPF of Rs.636/-, ESI- Rs.116/-, a
H.Ded. of Rs.500/- were being made. He also shown deduction of Mess of
Rs.496/- . I think deduction of Mess and H. Ded. were not statutory
deductions so he was entitled to only statutory deductions, his net salary
would be a little less than Rs.6,000/-. The bio data of the wife given at the
time of marriage to the petitioner shows that she had done two years diploma
in Beauty Care and Hair Dressing from South Delhi Polytechnic in 1st
Division and she was a freelance beautician. It was stated that she had her
own business and got good income. The Trial Court observed that the
husband had failed to establish that the wife was running beauty parlour.
However, the Trial Court ignored the fact that she was a freelance beautician
meaning thereby that she was visiting the houses of her clients. In her biodata,
it was admitted she was having good business. The onus was on her to
show as to when she closed down the business. She did not discharge this
burden. I consider that the wife was able to maintain herself and was not
entitled to any maintenance however the husband had responsibility of
maintaining the daughter. The husband had another daughter to maintain. No
doubt he is working in Rajasthan and his daughter is living in his ancestral
house at Rai Barelli. If his net income is divided in four parts and two parts
are left to him and one part each to his daughters, I consider that a monthly
maintenance of Rs.1500/- would be proper maintenance. The order of the
trial Court is modified accordingly. The petitioner shall pay maintenance of
Rs.1500/- per month during the pendency of the petition filed for divorce
from the date of application, to the wife for maintenance of the daughter.
However, the condition put by the learned ADJ of payment of 20% penalty
is unjustified. An order of maintenance under Section 24 of the HM Act is
an executable order and if the maintenance is not paid, the defence of the
husband can be struck off and execution can be carried out. In case of late
payment, the wife would be entitled to a reasonable interest over the unpaid
amount and in my view 10% interest is a reasonable interest on the unpaid
amount for the unpaid period.
5. The petition for divorce has been filed by the wife. The husband has in
fact filed a petition under Section 9 to ask the wife to join him. I consider
that in such a situation the husband is not liable to pay litigation expenses to
the wife.
6. As far as visitation rights of the father with the child are concerned, I
consider that there is no necessity of interference with the order of the
learned ADJ. It is petitioner’s own case that right from the birth, the child
has been living with the mother. The interaction of the child with the father
has been minimal. Under these circumstances, I consider that the trial Court
rightly arrived at a conclusion that it would not be in the welfare of the child
to compel her to see her father against her wishes. The petition is allowed to
the above extent.
Sd/-
SHIV NARAYAN DHINGRA, J.
Wife eligible for free legal aid – no littigation expenses
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
Civil Revision Application No. 1665 of 1997
Decided On: 09.12.1999
Appellants: Sangitaben Rasiklal Jaiswal
Vs.
Respondent: Sanjaykumar Ratilal Jaiswal
Hon’ble Judges:
S.K. Keshote, J.
Counsels:
For Appellant/Petitione r/Plaintiff: Jitendra Malkan, Adv.
For Respondents/ Defendant: Megha Jani, Adv.
Subject: Family
Catch Words:
Acts/Rules/Orders:
Constitution of India
Disposition:
Petition dismissed
Case Note:
Family – maintenance – Section 24 of Hindu Marriage Act, 1956 and Legal Services Authorities Act, 1987 – revision application filed for enhancement of allowance of maintenance, Maruti car with driver, expenses of petrol, flat at Vadodara and Rs. 23350 as costs of present litigation and further costs of litigation – not fair for wife to spend luxuriously in litigation and burden husband having pay package of Rs. 6116.50 per month – claim likely with object to harass husband – wife entitled to free legal aid after enactment of Act of 1987 – revision application dismissed.
JUDGMENT
S.K. Keshote, J.
1. The wife, the petitioner herein, and the respondent in Hindu Marriage Petition No. 243 of 1996 (Old No. 111 of 1996) which was again renumbered as H.M.P. No. 209 of 1997 pending in the court of Civil Judge (S.D.) Mahesana challenges in this civil revision application the order passed by the court aforesaid below Ex. 5 dated 29th September, 1997 under which the court has granted her the interim maintenance at the rate of Rs.2000/= p.m. w.e.f. 5-10-1996 and Rs.1500/= towards special costs of the application.
2. The husband respondent filed H.M.P. for divorce at Mahesana. It is not in dispute that the respondent husband is an employee and residing in territorial jurisdiction of the city of Baroda and marriage of the parties was solemnised at Hotel Surya Palace, a three star hotel in the city of Baroda on 9-5-1992 but still he has chosen to file this H.M.P. at Mahesana which prima-facie appears to be a deliberate attempt to harass this lady who is stationed at Vanadra, Taluka Dabhoi Dist, Vadodara with her widow mother.
3. On receipt of summons of this petition, the petitioner filed an application under section 24 of the Hindu Marriage Act, 1956 at Ex.9 and therein she prayed for Rs.20,000/= p.m. as allowance of maintenance from the date of application, a Maruti car with Driver and also the husband to bear the costs of petrol and furnished flat in a good locality in the city of Vadodara admeasuring 800 sq. ft. and Rs.23,350/= towards costs of litigation and such other and further costs of litigation which may be incurred by the petitioner. Under the impugned order, as stated earlier, the court has awarded the allowance of maintenance at the rate of Rs.2000/= p.m. and special costs of Rs.1500/=. It is not clear from the order of the learned trial court whether this Rs.1500/= awarded as special costs of application under section 24 of the Hindu Marriage Act to the wife or it is total amount which has been awarded towards the litigation expenses.
4. The respondent – husband is serving with Indian Petrochemicals Corporation Ltd. and his salary certificate is on the record of this civil revision application dated 30th January, 1997. His gross salary is of Rs.6116-50.
5. This revision application is filed for enhancement of the allowance of maintenance, a Maruti Car with driver, expenses of petrol, flat at Vadodara and Rs.23,350/= as costs of this litigation and further costs of litigation.
6. Taking into consideration the pay package of the husband of the petitioner i.e. Rs.6116-50, this amount of Rs.2000/= awarded is just and reasonable amount. Normal rule is of awarding maintenance pendete-lite 1/3rd of the net income of the husband arrived at after taking into consideration only statutory permissible deductions from the salary. In this certificate, the employer has not given out what deductions are being made from the salary. So it has to be taken to be a net salary of the husband – respondent and the amount of allowance of maintenance granted per month of Rs.2000/= to the petitioner is a reasonable sum.
7. However, the enhancement has been claimed on the ground that the husband is possessing the properties (i) agricultural lands details of which are given in para-3 of the additional affidavit in rejoinder, (ii) many more other ancestral properties and valuable movable properties. In this affidavit, it is further stated that the present market value of the properties as described therein is estimated to be more than Rs.50 to 60 crores and reference has been made to the fact that recently properties bearing R.S. NO. 1500, 1501 and 1528 were placed in market for sale. On information, the petitioner stated that the said properties could fetch an offer of Rs.22 crores. Then it is stated that she reliably learnt that the husband respondent has also enter into an agreement for sale of abovesaid three properties and received an amount of Rs.2.2 crores as consideration for agreement to sale.
8. Merely because the husband is possessing valuable movable and immovable properties it is hardly of any relevance in the matter for grant of temporary maintenance. It is understandable if the husband is having regular income from the properties then it may be taken into consideration. However, as per the case of the petitioner herself, these are all ancestral properties and at this stage, it is difficult to find out what is the ultimate share of the husband – respondent therein. The petitioner has not given out what regular income per month husband is getting from these properties. The valuation of properties irrespective of the fact whether what is stated is correct or not, is not sufficient to take that what claim has been made for maintenance and other things has to be accepted. Reference of agreement to sale of properties is also difficult to accept as for which also there is no evidence on the record. To reach to a reasonable sum of maintenance to be awarded to the wife on her application under section 24 of the Hindu Marriage Act what income regularly per month the husband is having has to be considered. He is in employment and accordingly his salary is taken into consideration and the amount of interim maintenance awarded can not be interfered with. There is no scope whatsoever on the basis of the material produced on the record for enhancement to be made in the amount of interim maintenance granted to the wife by the trial court under the impugned order. So to this extent the claim of the petitioner is not acceptable.
9. The further claim made for providing a Maruti Car with chauffeur and further direction to husband to bear the expenses of petrol etc. it is suffice to say that such a claim may not fall under section 24 of the Act, 1956. It is no more the maintenance but may be a luxury in the facts of this case and that can not be taken into consideration.
10. The claim for furnished flat at Vadodara is also difficult to accept what to say to be granted under the provisions of section 24 of the Hindu Marriage Act. It is understandable if ultimately the marriage of the parties is dissolved by a decree of divorce, while considering the matter for grant of permanent alimony under section 25 of the Act, 1956, the court may consider all these aspects but not at this stage. The claim of the petitioner for these two things is also difficult to be accepted.
11. Now I may advert to the claim of the petitioner for litigation expenses. This claim has to be dealt with in two parts. First is the claim which has been made of Rs.23,350/= and second the claim for further expenses. The rejoinder affidavit has given shocking facts and really after going through the contents of this affidavit, it touches the conscience of the court that how the lady who has no source of income whatsoever and entitled for free legal aid under the Legal Services Authorities Act, 1987 has been exploited by an advocate. The shocking facts are of the claims for coming to Mahesana by the advocate, the claim for professional fees of an advocate per appearance, professional fees for drafting of reply to the original application including clerical and typing expenses and affidavit in rejoinder to the advocate, Mrs. Nayna V. Malkan, professional fees of drafting application for maintenance, professional fees for drafting affidavit in rejoinder, expenses incurred for obtaining property documents, car expenses and other expenses of appearance. I cannot do better than to reproduce all these items in the judgment.
Rs.250/- Visit by Shri Anmol Sharon (Lumsum amount, inclusive of Autorickshaw, Bus Fare To &Fro AbdMSN Tea, Snacks his stipend Dt. 28-11-96.
Rs.250/- Visit By Shri Anmol Sharon inclusive of a (lumsum amount inclusive of Autorickshaw, Bus fare, To & Fro Abd-MSN Tea, Snacks inclusive his stipend Dt. 31-12-96)
Rs.1500/- My visit with my Mother and Lawyer from Vanadara to Mahesana in a private Car. Dt. 17-1-97.
Rs.500/- Tea, Snacks, Lunch for 5 persons.
Rs.5500/- Professional Fees of Jitendra Malkan for his appearance on that date.
Rs.3500/- Professional fees for drafting reply to original application including clerical and typing expenses. Affidavit in rejoinder to Advocate Nayna V. Malkan.
Rs.1500/- Professional fees for drafting application for maintenance u/s. 24 of the Act with clerical and typing expenses to be paid to Mrs. Nayna V. Malkan.
Rs.1500/- Professional fees drafting affidavit in rejoinder of reply to application u/s.24 of the Act to Nayna V. Malkan.
Rs.1000/- Expenses incurred for obtaining property documents.
Rs.1500/- Car expenses for my visit with my mother and Lawyer from Vanadhara to Mahesana in a private car on Dt. 24-2-97.
Rs.500/- Tea, Snacks, Lunch for 5 persons.
Rs.5500/- Professional fees of Jitendra Malkan for his appearance on Dt. 24-2-97.
Rs.350/- Professional fees to Advocate Ms. Prerana Vakharia for her visit to Mahesana (including and snacks on 7-2-97).
12. The petitioner may not know that she is eligible for free legal aid but the advocate and the Presiding Officer of the court in which the matter was pending are suppose to know for this entitlement of this litigant. A litigant who has been ordered to be granted Rs.2000/= per month as maintenance, how she will bear out all these expenses and wherefrom she has borne out all these expenses and how in future she will borne out these expenses is a matter of realisation. It is very very difficult for this lady and equally very harsh on the part of the advocate to put burden of heavy litigation expenses over this poor lady more so when she is entitled for free legal aid. This is not the only case but I am seeing cases after cases where very sad stories are being told by the litigants of this class either in the court or in the Chamber when the matters are being placed for conciliation proceedings. There seems to be something wrong somewhere in our efforts to make known to this class of litigants for their right to get free legal aid. Though under section 24 of the Hindu Marriage Act, the husband is under legal obligation to bear out the expenses of litigation of the wife but that is the Act of the year 1956. After this Act of 1987 where this class of litigants are entitled for free legal aid still a husband who belongs to lower middle class may be saddled with all these costs or a question does arise whether he is in a position to bear out such a luxurious litigation expenses of the wife. Now after this Act of 1987 possibly and legitimately the husband may not be made responsible for the litigation expenses of the wife. However, this is not the matter to be considered at this stage and decided in this case. I am only concerned with the shocking facts which have come on record that how this class of litigants are being exploited. I find fault with the system of which I am also the part. It is unfortunate that despite of having all these legal literacy camps, Lok Adalats etc. we are unable to give a message and make known to this class of litigants that they are entitled for free legal services. Out of the total population of the country, very nominal percentage thereof are involved in litigations. So what is important is that there must be some system, method or modality to make known to this class of litigants about their right of free legal aid at the State expenses. It is not unknown and what our system is that on receipt of summons/notices of proceedings of the court, a litigant will do one thing to approach to an advocate. So the first duty falls on the advocate who has been approached by this class of litigant and more so a class of litigant who is eligible for free legal services under section 12 of the Act, 1987 to make her known of the fact that she may not engage him as she is entitled for free legal aid and may approach to the concerned authorities. This is required to be done at the grass root level and where the two important persons to give this message or to make known of this right to this class of litigants are advocate and the judicial officer concerned. If the advocate, a professional, does not give this information to the litigant of this category or make know him/her of this right then it comes on the court on the first hearing of the case to make known him/her of their entitlement of free legal aid. If such category of litigant appears through an advocate, it is the duty of the court also to ascertain and to make know to the litigant that he/she is entitled for free legal aid. If it has been done then only our these programmes will be successful and beneficiaries thereof will be benefitted. The courts know this but still these litigants are not made known of their right of free legal aid. All the litigants of this class are represented in the courts by advocates. I had an occasion to talk to many of the litigants of this class in the court where they have narrated very sad stories. In one case, a lady litigant – a wife, on being asked by the court stated that his advocate is very good advocate and has not demanded anything from her and has not charged anything from her of the litigation. That was the stage only where application under section 24 of the Act was decided. She has paid to him in installments about Rs.6000/= towards fee. It is no doubt true that certain percentage of advocates are rendering free legal services in these matters but not substantial number.
13. The justification given for claim of this heavy expenses of litigation is that the lady has to travel with some security from her village to Mahesana and it is the creation of husband himself. I find sufficient justification in the contention of the learned counsel for the petitioner that this attempt of husband to file petition at Mahesana though he himself resides near to Baroda and marriage was solemnised at Baroda is with the object to harass this lady. However, if that is so, I cannot do better than to remind the counsel for the petitioner of the provisions of section 24 of the Civil Procedure Code and if such an application is filed by the wife, the court will consider the same accordingly and there may be all possibility of accepting the prayer of the petitioner for transfer of this petition from Mahesana Court to Baroda court.
14. Before parting with this judgment, it is to be stated that the advocate of the petitioner here in this court, or the advocate appearing for her in the Mahesana court as well as the Presiding Officer of the court concerned to make this lady know of her right of free legal aid so that there may not be any further expenses of litigation to be borne out by her. This judgment is dictated in English. I do not know whether this lady knows English or not. It is also difficult to ensure whether if she knows to read and understand English, whether the judgment will reach to her hands or not. It is a matter of concern of both the advocate and the court and I hope that the advocate being an officer of the court and the court will realise their responsibility and will see that in future she will not have to bear out the heavy expenses of litigation. It is also not fair for wife to spend luxuriously the amount in litigation and burden the husband whose total pay package is of Rs.6116-50p. m.. This claim may be with the object and purpose to harass the husband. Both the parties so long as their relation of husband and wife is tied up should take care of each other and to see that wife also minimises her expenses of litigation and more so when after the Act of 1987 she is entitled for free legal aid. From the order of the court, I find that the amount of Rs.1500/- awarded as special costs may not be final figure of the amount of expenses of litigation. It is still open to the court to reconsider the matter but at the same time the court will keep in mind that the petitioner- wife is entitled for free legal services. As a result of the aforesaid discussion, I do not find any merits in this claim of the petitioner for sum of Rs.23,350/=. So far as further litigation expenses are concerned, as stated earlier, it is the concern of the court below.
15. As a result, of the aforesaid discussion, this revision application fails and the same is dismissed. Rule discharged. Interim relief, if any, granted by this court stands vacated. In this court also, the petitioner was entitled for free legal aid but she could not get this facility either because of unawareness of her right or that her advocate has not made known her of this right, the innocent husband cannot be saddled with the costs of this revision application. Hence, no order as to costs
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