No Maintenance to Child when WIfe has Suffient INcome

Punjab and Haryana High Court

N.K. Kapoor

Satya Pal Vs. Sona Devi On 15 July 1992

Law Point:
Both parties employed — Petitioner drawing salary of Rs. 1865/- P.M. — Wife getting Rs. 1845/- P.M. — Whether Sec. 24 envisages the grant of interim maintenance allowance of minor children — Held — No — Grant of maintenance for upkeep of children u/Sec. 24 wholly unwarranted.

JUDGEMENT

1. The petitioner has challenged the order of Additional District Judge, Yamunanagar, passed under Section 24 of the Hindu Marriage Act whereby he has been directed to pay a monthly allowance of Rs. 250/- and a consolidated sum of Rs. 700/- as litigation expenses, to the respondent

2. This case has a chequered history. The parties were married on 9.5.1984 but fell out soon thereby compelling the petitioner to file a petition for restitution of conjugal rights in the year 1988. The respondent assured the petitioner that she would no more give any cause for annoyance and thus the petition was got dismissed as withdrawn. The petitioner too assured the respondent that she would be properly kept and looked after. The petitioner further agreed that his parents would live separately. Respite this assurance, the respondent did not live upto her promise and remained residing separately. Not only this, she instituted a complaint under Sec. 498-A and 406 of the Indian Penal Code on 3.7.1989. Thereafter, the petitioner filed a petition under Section 13 of the Hindu, Marriage Act for grant of divorce m which petition under Section 24 of the Hindu Marriage Act for interim maintenance and litigation expenses has teen allowed by the Additional District Judge.

3. Both the parties are employed. The petitioner is employed in a bank drawing a salary of Rs. 1865/- where-as the respondent is employed as a steno-typist in the office of the Deputy Exicse and Taxation Commissioner, Jasadhari; on a consolidated pay of Rs. 1845/-. The Additional District Judge in his order-has-however, noted that the respondent is getting a sum of Rs 1313/- after deduction whereas the petitioner is getting carry home salary of Rs 1198.51 Whether gross income is taken into consideration as given by the petitioner or net income as given by the Additional District Judge, there is no manner of doubt that both the parties are gainfully emploped. Thus according to the counsel for the petitioner, the prayer made by the respondent for grant of maintenance pendente lite and expenses of the proceedings is wolly unjustified. Referring to Section 24 of the Hindu Marriage Act the counsel contended that this interim arrangement is only envisaged when there is proof on-record-that either the wife or the husband, as the case may be has no independent income sufficient for her or his support and to meet necessary expenses of the proceedings. Thus Court has thus not dwelt upon this aspect of the matter and has granted the maintenance pendente lite and the expenses of the proceedings in a. mechanical banner.

4. The Counsel further urged that the grant of maintenance allowance of Rs. 250/- for the children in petition under Section 24 of the Hindu Marriage Act is impermissible. The Counsel referred to Section 26 of the Hindu Marriage Act and thus contended that the enquiry as envisaged by this provision or the relief which legitimately could be granted to a party cannot be the subject matter of adjudication in a petition under Section 24 of the Hindu Marriage Act.

5. I find sufficient merit in both the contentions of the learned Counsel for the petitioner. The Additional District Judge despite having come to the conclusion that there is a negligible difference between the carry home salary of both the supouses. Yet somehow chose to grant interim maintenance award at the rate of Rs. 250/- per month as well as directing the petitioner to pay a sum of Rs. 700/- as litigation expenses, A bare perusal of Section 24 of the Act reveals that it does not evisage the grant of interim maintenance allowance of the minor children. Section 26 of the Act specifically deals with the custody of children, their maintenance and education. The ambit and scope of Sections 24 and 26 of the Hindu Marriage Act are quite different. Section 26 specifically determination by the Court with regard to the coustody, maintenance and education of minor children, consistently with their wishes. Admittedly, no such enquiry was conducted by the Court. This way the grant of maintenance for the upkeep of children under Section 24 of the Hindu Marriage Act is wholly unwarranted,

6. Since the Court below too has come to the conclusion that both the spouses are gainfully employed and that there is a negligible difference between their carry home salary, the direction issued for payment of Rs. 700/- as litigation expenses too could not be granted keeping in view the provisions of Section 24 of the Hindu Marriage Act. Resultantly, I accept the revision petition and set aside the order of the Additional District Judge, Yamuna nagar. No costs.

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