Delhi High Court
JUSTICE D.P. Wadhwa
Pradeep Kumar Kapoor Vs. Shailja Kapoor On 20 May 1988
Law Point:
No finding by trial court about the insufficiency of the income of wife for her support — Husband earning Rs. 200/- p.m. from sale of paintings not based on any evidence — Husband net income from salary Rs. 1890.00 p.m. Wife net income Rs. 1269.00 p.m. — Wife contested — Demand for separate residence — Court awarded maintenance pendente lite over and above her income which was not sufficient for her support — — She justified impugned order — Perusal of record — Whether the trial court exercised its discretion in fixing the quantum of maintenance arbitrarily ? (Yes).
JUDGEMENT
This revision is of the order dated 1-2-1988 passed by the Additional District Judge, Delhi, whereby she, on an application under Section 24 of the Hindu Marriage Act, 1955 (for short ‘the Act’) ot the wife, allowed her maintenance pendente lite at the rate of Rs. 600/- per month, but at the same time declining her any expenses of the proceedings. The petitioner is the husband before me.
2. The parties were married on 12-10-1986. They lived together for about three months. Then the wife filed a petition under Section 12 of the Act seeking annulment of the marriage on the ground that the marriage had not been consummated owing to impotence of the husband. In these proceedings, she filed an application on 10-3-1987 under Section 24 of the Act claiming both maintenance pendente lite and litigation expenses but as noted above, her application was allowed to the extent that she was awarded maintenance pendente lite at the rate of Rs. 600/- per month from the date of the application but the court below held that she was not entitled to any litigation expenses she being herself an earning hand.
3. The husband is working as a junior accountant (not junior engineer as recorded in the impugned order) and the wife is working as a lower division clerk.
Respective incomes of the husband and wife for the month of July 1987 as per their pay certificates are as follows :
Mr. P.K. Kapoor : (husband)
Deduction
Basic pay
Rs.
1600/-
CGHS
Rs.
3.00
D.A.
Rs.
128/-
CGEIS
Rs.
20.00
H.R.A.
Rs.
450/-
GPF(C)
Rs.
100.00
GPF(A)
Rs.
200.00
C.C.A.
Rs.
75/-
FA (A)
Rs.
40.00
Total
Rs.
2253/-
Rs.
363.00
Net : Rupees one thousand eight hundred and ninety only (Rs. 1890.00).
Mrs. Shailja Kapoor : (wife)
Basic pay
Rs.
1050.00
CGEGIS
Rs.
20.00
D.A.
Rs.
84.00
GPF
Rs.
100.00
C.C.A.
Rs.
45.00
Festival advance
Rs.
40.00
H.R.A.
Rs.
250.00
Total
Rs.
1429.00
Rs.
160.00
Net amount drawn : Rs. 1269.00.
The wife has contended that the husband is an artist and holds exhibitions and earns Rs. 2000/- per month from the sale of the paintings. This has been denied by the husband who said painting was merely his hobby and rather he spent Rs. 200/- every month on buying colours, brushes, canvas, etc. The trial court, however, assessed the income of the husband from the sale of paintings at Rs. 200/- per month as the court was of the view that the husband must be having some income by holding exhibitions of his paintings.
4. The husband has challenged the impugned order on the grounds that there was no finding by the trial court that the income of the wife was not sufficient for her support and the finding that the husband was earning Rs. 200/- p.m. from the sale of his paintings was not based on any evidence when there was no evidence to base such a finding. It was also contended that in fixing the maintenance pendente lite the court did not have regard to the income of the wife. In support of his submissions, Mr. S.M. Sarin, learned counsel for the husband, referred to : a Bench decision of the Calcutta High Court in Ashit Mukherjee v. Smt. Susmita Mukherjee, AIR 1987 Cal. 153; L.R. Rajendran v. Gajalakshmi, AIR 1985 Mad. 195; Rajambal v. Murugappan, AIR 1985 Mad. 284; Preeti v. Ravind Kumar Sharma, AIR 1979 All. 29; and Baboolal v. Prem Lata, AIR 1974 Raj. 93.
5. Mr. S.K. Puri, learned counsel for the wife, justified the impugned order’ and stated that the learned trial court did take into account the income of the wife, but considering the fact that the wife required residence she was awarded maintenance pendente lite over and above her income which was not sufficient for her support. Grievance of Mr. Puri was that the trial court acted illegally in not granting any expenses for the proceedings to the wife. He in support referred to a decision of this court in Dev Dutt Singh v. Rajni Gandhi, AIR 1984 Del. 320, I may note that in Dev Dutt Singh’s case this court did not follow the decision, of the Allahabad High Court in Preeti v. Ravind Kumar Sharma, AIR 1979 All. 29 and held that the use of the word “support” in Section 24 of the Act was of wide import. This court observed that “support” had to be according to the standard of the parties, and maintenance had to be fixed according to the standing of the parties, their wealth and the environment to which they in their married state had been accustomed. The court further observed as under:
“In the light of all the circumstances of the particular case the Court has to arrive at a figure for the maintenance and support of the wife which is reasonable having regard to the income of the parties. In all these cases it is necessary at the end to view the situation broadly and see if the proposals meet the justice of the case. Rough justice according to common sense may be the best that the Court can in many cases achieve.”
In that case the court found that difference between the income of the husband and the wife was large and the question of house accommodation for the wife appeared in the forefront and that first basic need of the wife was the home.
Mr. Sarin said that the amount payable by the husband to the wife was usually called alimony which signified literally nourishment or sustenance. He said that in the present case the trial court had exercised its discretion in fixing the quantum of maintenance arbitrarily and thus illegally.
6. Under Section 24 of the Act, the court has to see if the applicant who may either be wife or husband has no independent income sufficient for her or his support and the necessary expenses of the proceeding, and then award expenses of the proceeding and such sum every month, having regard to the applicant’s own income and the income of the respondent, which may seem to the court to be reasonable. This section may be contrasted with Section 25 of the Act which deals with permanent alimony and maintenance. Under Section 25, the court may order the respondent to pay to the applicant for her or his maintenance and support, till her or his lifetime, either a lumpsum amount or such monthly or periodical sum, having regard to the respondent’s own income and other property, if any, and the income and other property of the applicant, the conduct of the parties and other circumstances of the case, which the court might deem just. It may be noticed that heading of Section 24 of the Act is “Maintenance pendente lite and expenses of proceedings.” The section, however, does not use the word “maintenance”, but, to me, it appears that the words “support” and “maintenance” are synonymous. “Support” means “to provide money for a person to live on”, like “he supports a family” or “he supports his old mother,” Maintenance is “an act of maintaining”, i.e. to support with money. For example, “he is too poor to maintain his family”. It may be useful at this stage to refer to the definition of “maintenance” as given in the Hindu Adoptions and Maintenance Act 1956 (for short ‘the Act of 1956’). Under Section 3 of that Act, “maintenance” includes—(i) in all cases, provision for food, clothing, residence, education and medical attendance and treatment; (ii) in the case of an unmarried daughter also the reasonable expenses of and incident to her marriage. I would, therefore, think that when we talk of maintenance and support, the definition of “maintenance” as given in the Act of 1956 should be adopted. Section 18 of the Act of 1956 also refers to maintenance of wife and gives the circumstances under which a Hindu wife is entitled to live separately from her husband without forfeiting her claim to maintenance. The amount of maintenance to be fixed is provided in Section 23 of that Act, the relevant provision of which is as under :
“23. Amount of maintenance.—(1) It shall be in the discretion of the court to determine whether any, and if so what, maintenance shall be awarded under the provisions of this Act, and in doing so, the court shall have due regard to the consideration set out in Sub-section (2) or Sub-section (3), as the case may be, so far as they are applicable.
(2) In determining the amount of maintenance, if any, to be awarded to a wife, children or aged or infirm parents under this Act, regard shall be had to—
(a) the position and status of the parties;
(b) the reasonable wants of the claimant;
(c) if the claimant is living separately, whether the claimant is justified in doing so;
(d) the value of the claimant’s property and any income derived from such property, or from the claimant’s own earning or from any other source;
(e) the number of persons entitled to maintenance under this Act.
x
x
x”
7. Sometimes an application under Section 24 is filed read with Section 26 of the Act which deals with custody of the children and the court is authorised to pass interim orders with respect to custody, maintenance and education of minor children. That, however, is not the case here. While fixing permanent alimony and maintenance under Section 25 of the Act, the court is expected to make detailed inquiry and has to take into account not only the income but other properties of the parties, their conduct and other circumstances of the case that the court might consider relevant. But that would not be so for the decision of the application under Section 24 of the Act as in its very nature, the inquiry under Section 24 has necessarily to be summary. The court cannot be bogged down to intricacies of a protracted trial for fixing maintenance pendente lite and expenses of the proceedings. Otherwise, the very object of the section would be frustrated which is that a party is not handicapped in prosecuting his or her case. But, then in deciding the application under Section 24 of the Act, the court has to act in accordance with sound judicial principles and cannot act in an arbitrary fashion to the prejudice of either of the parties. The following principles would appear to be relevant for the purpose :
(1) position and status of the parties;
(2) reasonable wants of the claimant (towards food, clothing, shelter, medical attendance and treatment, education and the like);
(3) income of the claimant;
(4) income of the opposite party;
(5) number of persons opposite party is obliged to maintain.
Two corollaries may be added here (1) In arriving at the income of a party only involuntary deductions like income-tax, provident fund contribution, etc., are to be excluded; and (2) though under the law opposite party may not be obliged to maintain brother or sister but if that brother or sister having no income is living with the opposite party as member of his family and where either there are no parents or are unable to maintain themselves, the court may in a given circumstance consider the expenses to be incurred on the maintenance of brother or sister by the opposite party. After all, court cannot be expected to adopt a mechanical approach while interpreting the provisions of law incorporating principles of social justice like Section 24 of the Act.
8. In the present case, there appears to be no obligation on the part of the husband to support his younger brother. There is then certainly no evidence regarding the income of the husband from sale of paintings. The trial court was clearly in error in fixing the income of the husband from sale of paintings at Rs. 200/- per month. There is nothing in the impugned order to show as to how the trial court arrived at this figure. The amount of Rs. 200/- per month added to the income of the husband has, therefore, to be excluded. Thus, the only income which the husband and the wife have is their respective salary. The husband has contended that he is contributing substantial portion of his salary to his parents for the expenses of the house and is also supporting his younger brother who is unemployed. There are no further particulars. If the husband is living with his parents it is not unusual to contribute a part of his salary for meeting the house-hold expenses. The husband is living with his parents and the wife with hers The wife said that she was living with her father in the accommodation allotted to him but that her father was to retire the following year and that she intended to live in a separate accommodation. She said the income which she was having was not sufficient for her maintenance and for maintaining a separate residence. This appears to have influenced the trial court in awarding the wife a sum of Rs. 600/- every month as maintenance pendente lite. The fact remains that both husband and wife belong to the same strata of life. Presently, the wife is not living in any separate accommodation and it is not her case that she is paying anything to her father on that account Father of the wife owns a two roomed flat in New Delhi where he is likely to shift after his retirement. The respondent-wife might contend that she would like to live in some adjoining house but then nothing has been said about the rental prevailing in any particular area where the wife would like to live in a separate residence for herself. Wife would also like to live in an area near to her place of work. Her office is presently situated at Defence Colony, New Delhi. It is a matter of common knowledge that rents in nearby colonies have reached astronomical proportions. An L.D.C. or a junior accountant can ill-afford an independent accommodation in any nearby locality. Wife in such circumstances will have to live, if she wants to live independently, either in some Women’s Hostel or as a paying guest. All this I am saying as I believe a Judge is supposed to know the facts of life. The wife’s income after taking into account deductions on account of CGEIS and GPF contributions would come to Rs. 1309/- per month. The income of the husband would, on similar basis, be Rs. 2130/- per month. The trial court has awarded Rs. 600/- per month as maintenance pendente lite to the wife thus making her total emoluments at Rs. 1909/- per month and that of the husband at Rs. 1530/- per month. On the face of it, it will be seen that jurisdiction in this case has been exercised with material irregularity calling for interference under Section 115 of the Code of Civil Procedure. Taking into account the principles laid above, I think it will be proper exercise of judicial discretion if the husband is asked to pay Rs. 200/- every month to the wife as maintenance pendente lite from the date of the application by the wife, making her monthly income at Rs. 1509/-. I order accordingly. The petition is thus partly allowed. There will, however, be no order as to costs.
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