Court: Calcutta High Court
Equivalent citations: AIR 1987 Cal 153, 90 CWN 1060
Bench: A M Bhattacharjee, S Chakravarty
Ashit Mukherjee vs Smt. Susmita Mukherjee (Nee Roy) … on 13 May, 1986
Law Point:
Maintenance pendente lite- Income of parties- Failure of court to take into consideration such income- Affidavit in support of application of wife not in accordance with O.19, R3(1) of C.P.C. Court has “acted illegaly” within meaning of S.115 of code.
JUDGEMENT
1. An order of maintenance pendente lite having been passed under Section 24 of the Hindu Marriage Act in favour of the wife against the husband, the latter has moved this Court in revision against the said order. In view of the nature, object and duration of a pendente lite maintenance order under Section 24, such an order should be sustained, wherever possible, and should be interfered with only when the law irresistibly warrants intervention.
2. Under Section 28 of the Hindu Marriage Act, as it stood before the Amendment Act of 1976, there was a view that such an order was appealable thereunder, though a contrary view was also maintained. But Section 28, as it now stands after the 1976. Amendment, makes it abundantly clear that only final orders under Section 25 and Section 26 of the Act relating to permanent alimony, maintenance and custody of children etc. are, but no other order is, appealable. When the Legislature does not provide for an appeal against an order, then, as pointed out by the Privy Council in N. S. Venkatagiri Ayyangar, AIR 1949 PC 156 at p. 158, the intention of Legislature is taken to be that the order, right or wrong, shall be final. And such a Legislative intent would be more manifest in case of an order of maintenance pendente lite under Section 24, if the Legislature having provided an appeal therefrom under Section 28 as originally enacted, has now taken away the same by amending that section in 1976. But after hearing the learned Counsel for the parties, we are, however, satisfied that the instant case warrants our intervention in revision. In N.S. Venkatagiri Ayyangar (supra at p. 158) Sir John Beaumont, speaking for the Board, while interpreting the expression “acted illegallly or with material irregularity” in Section 115 of the Code of Civil Procedure, construed the expression “acted illegally” to mean to have acted “in breach of some provisions of law” and the expression “with material irregularity” to mean “by committing some error of procedure in the course of trial which is material in that it may have affected the ultimate decision”. These observations, have been quoted with approval by the Supreme Court in Keshardeo Chamaria, and have also been fully relied on in a number of later decisions, e.g., in M.L. Sethi, ; in Sher Singh, . We are satisfied that the learned Judge in making the impugned order in the exercise of the jurisdiction vested in him under Section 24 of the Hindu Marriage Act, acted illegally within the meaning of Section 115(1)(c) of Civil P.C. The provisions of Section 24 of the Hindu Marriage Act are reproduced hereunder : —
“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”.
3. It is, therefore, clear that the factor which entitles the court to exercise jurisdiction underSection 24 is it appearing to the Court that the applicant-spouse has no independent income sufficient for her or his support but such jurisdiction is to be exercised and the resultant order is to be made by the Court “having regard to” the applicant-spouse’s own income and the income of the non-applicant-spouse. Assuming that it rightly appeared to the court in this case that the applicant-wife had no independent income of her own sufficient for her support and, therefore, the trial court was right in assuming and proceeding to exercise jurisdiction under Section 24, we are afraid that in making the impugned order of maintenance the court did not have regard to the income of the applicant wife and the non-applicant husband, which the court was bound to have under the law.
4. The expression “having regard to” in Section 24 conveys a mandate that the Court shall have regard to the income of the parties. The expressions “having regard to”, “have regard to” and other allied expressions have been the subject of judicial interpretation by our apex Courts. The expression “having regard to” in Section 168 of the Madras Estates Land Act, 1908, came up for consideration in the leading case of the Privy Council in Ryots of Garabandho v. Zamindar of Parlakimedi, AIR 1943 PC 164. The view taken by the majority of the Collective Board of Revenue in that case was that “the requirement ‘have regard to’ the provisions in question has no more definite and technical meaning than that of ordinary usage and only requires that those provisions must be taken into consideration”. Their Lordships approved this view (at p. 180) which appeared to their Lordships to be “fairly clear as a matter of English” also. These observations of the Privy Council have been quoted with approval by the majority of the Supreme Court in Mysore State Electricity Board, . In V. K. Verma v. Radhey Shyam , the Supreme Court has observed (at p. 1320) that “where the law requires the court to have regard to certain provisions and the Court does not pay that regard, it cannot but be said that the trial has not been according to law”. In Patiala Bus Pvt. Ltd., , when it was urged before the Supreme Court that since Section 47 of the Motor Vehicles Act requires that the Regional Transport Authority, in considering an application for stage carriage permit, shall have regard to certain matters, the Authority must take them into consideration and that failure to do so would be “clearly in breach of Section 47” and would vitiate the order, the Supreme Court, while accepting the argument, observed that “there is great force in this contention”. In this view of the law, we have no doubt that the Court having been required by Section 24 of the Hindu Marriage Act to have regard to the income of the parties in ordering payment of pendente lite maintenance by one spouse to the other, must take into consideration such income in making such order and if the court does not do so or does not pay that regard, then it cannot but be said that the Court has acted in breach of the relevant provisions of law and has, therefore, “acted illegally” within the meaning of Section 115(1)(c) of Civil P.C. to warrant intervention in revision.
5. It appears from the order-sheet that the learned Judge directed both the parties to file documents in support of their respective cases and it further appears from order No. 46. dt/- 8-2-85, that “necessary papers have been filed by the respondent-wife and the petitioner-husband already filed documents”. The learned Judge, however, has not even remotely referred to or considered any of those papers or documents. If the learned Judge considered the materials legally brought on record and then came to a finding as to the maintenance, then obviously it would not have been open to us, while sitting in revision, to reassess and consider those materials. But the impugned order would clearly show that the learned Judge did not ascertain or consider the actual income of the husband but the basis of his order was the income which the husband could earn by more application of industry. The learned Judge has concluded that “it is quite reasonable to believe that the petitioner (i.e. the husband), by more application of industry, could earn sufficient money to provide the respondent, his wife, with Rs. 400/- per month, which is required in view of the fact of the present day escalation of prices by way of maintenance pendente lite”. The impugned order, therefore, demonstrates that the basis of the order is the belief of the learned Judge that at least a sum of Rs. 400/- is required by the wife for her maintenance in view of the present escalation of prices and his further belief that the husband “by more application of industry could earn sufficient money”. Under Section 24, however, the matter which must be considered by the Court is the income actually earned by the parties and not what a party could have earned by putting in more labour, capital and all that. It is, therefore, manifest that the learned Judge did not pass the order “having regard to” the actual income of the husband, though under Section 24 he was obliged to have regard to the same. The impugned order, therefore, was passed not in accordance with the provisions of law, but in breach thereof.
6. It is true that the wife in her application for pendente lite maintenance has stated that the husband “is a medical practitioner and has got a lucrative practice and earns at least Rs. 8,000/- per month” and that he also “owns a fairly big house at Calcutta” which fetches and is capable of fetching decent income”. But in the affidavit in support of this application all the statements in the application have been affirmed as “true to the best of my knowledge and belief”, without specifying in any way which statements are true to her knowledge and which are true to her belief and also without stating the grounds of such belief. Under the provisions of Order 19, Rule 3(i) of Civil P.C., in affidavits relating to interlocutory applications, statements of the deponent’s belief may be admitted, provided however, “the grounds thereof are stated”. The statements in the affidavit of the wife, therefore, could not in law be taken into consideration.
7. It further appears from order No. 28, dt. 14-7-84, that the husband filed an application praying for permission to cross-examine the wife on the facts stated in her affidavit and also to adduce evidence in support of his case. The learned Judge was also obviously satisfied that in the interest of justice such cross-examination was necessary and accordingly ordered attendance of the wife for cross-examination. On repeated failure of the wife to appear for cross-examination, the learned Judge finally ordered by his order No. 31, dt. 22-8-84, that “in the event of the wife’s failure to appear in person in Court on 10-9-84, her affidavit in support of her application for alimony will be treated as non est and in that case the application will be disposed of on the materials placed on record”. But on 10-9-84, as it appears from the order of that date, the learned Judge appeared to have forgotten all about it and proceeded with the hearing of the application and reserved his order.
8. In our view, the impugned order was passed without having any regard to the income of the parties, though under Section 24 of the Hindu Marriage Act, the learned Judge was mandated to consider the same and, therefore, in making the impugned order the learned Judge “acted illegally” within the meaning of Section 115(1)(c) of Civil P.C. The learned Judge also acted illegally in taking into consideration the statements of the wife in her application, as the affidavit in support thereof was not in accordance with the relevant provisions of Order 19 of the Code.
9. We accordingly accept the revision, set aside the impugned order of maintenance pendente lite and send back the application to the court below for rehearing according to law in the light of the observations made herein. The court below shall decide the application on the materials on record and such further evidence, oral or documentary, as the parties may adduce before him. The court below shall note that it must dispose of and decide the application before the original matrimonial proceeding between the parties, now pending before it, is finally disposed of. No order as to costs. Let a copy of this order go down at once.
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