Judgment:
1. This application is filed by the respondent of the First Appeal seeking enhancement in the alimony from that of Rs.1,500/per month fixed by the Family Court in the Family Suit to Rs.10,000/per month.
2. Brief facts are as under:
3. Applicant is wife of present opponent. The husband had filed Family Suit No.50 of 2007 before the Family Court, Ahmedabad, seeking decree of divorce under Section 13 (1) of the Hindu Marriage Act, 1955 (the Act for short) on various grounds. The Family Court disposed of such suit by judgment dated 7th June 2011. Husband's Family Suit was allowed in part. Prayer for decree of divorce was not accepted. However, the learned Judge ordered judicial separation between the couple from the date of the judgment and decree. While doing so, the husband was ordered to pay permanent alimony at the rate of Rs.1,500/per month to the wife from 1st June 2009.
4. The husband has filed present First Appeal No.2254 of 2011 challenging the judgment of the Family Court. Such appeal is admitted and is pending. Pending such proceedings, the wife filed this Civil Application purportedly under Section 24 of the Act seeking enhancement in the alimony from Rs.1,500/to Rs.10,000/, inter alia on the grounds that the amount is meager, the husband is engaged in the business of printing earning sizeable income, considering the inflation and pricerise higher amount for maintenance of the wife would be justified.
5. Such application is opposed by the husband. An affidavit-in-reply dated 13th October 2014 was filed denying that he was engaged in the printing business, clarifying that he was doing printing business only as job work. He had filed income tax return for the assessment year 201213, where his business income was shown to be Rs.41,199/per year. It was also contended that the application itself is not maintainable. Along with his affidavit, he had produced the statement of his bank account for the period between 1.3.2009 to 18.3.2014. In such account, we had noticed two outward entries of Rs.3,50,000/each dated 26.4.2014 and 29.4.2014 in favour of one Sudhaben Yogeshkumar. Under order dated 20.11.2014, we had called upon the husband to reveal his relation with the said person and also the reason for payment of such large amount to her. He was also asked to disclose the source of these deposits, why they were made in cash and supporting evidence for the same.
6. In response to such order, the husband filed additional affidavit dated 17.12.2014 and clarified that said Sudhaben is his niece. She and her husband had helped him in several court proceedings arising out of the matrimonial disputes. In the month of April 2014, they were in need of finance and, therefore, he had given them loan of Rs.7 Lacs in two installments. He clarified that he had a share in the ancestral property along with his brother and four sisters, each one was to receive Rs.1,31,000/from the brother, who had retained agricultural lands of the family. Since the brother did not have good relations with the sisters, he had routed their shares also through the respondent-husband. Such amounts were received in cash and deposited in his bank account. Since his bank account also showed deposits of Rs.70,000/, Rs.6 Lacs and Rs.1,70,000/through cheques, it was clarified that such amounts were received by him from his nephew Dineshbhai Jayantilal Patel with whom he had recently started a business of electric pumps. In this affidavit, it is further stated that a revised income tax return for the assessment year 2014-15 was filed showing gross income of Rs.75,634/instead of Rs.65,634/previously declared.
7. On behalf of the applicant-wife learned counsel, Shri Samir Dave submitted that, pending the First Appeal, higher amount of maintenance is required to be paid by the husband. Considering his income and other resources, sum of Rs.1,500/per month is a meager sum. He contended that the husband has systematically tried to withhold correct information about his income.
8. On the other hand, learned advocate Shri Dhaval Shah for the husband opposed the application raising following contentions.
(i) Application under Section 24 of the Act pending appeal is not maintainable. He pointed out that no such application was filed before the Family Court in the original Family Suit.
(ii) The Family Court in the impugned judgment and decree has already awarded per month alimony at the rate of Rs.1,500/per month under Section 25 of the Act. Such alimony can be revised only in terms of Subsection
(3) of Section 25 and as long as such order holds the field, no order directing higher amount can be passed in an application under Section 24 of the Act.
(iii) He lastly contended that the husband's income does not justify awarding any higher amount. He relied on the affidavits filed by the husband in support of such contention.
9. We would firstly deal with the question of maintainability of this application, which has two parameters. First is, would this application be maintainable at an appellate stage when no such application was filed before the Family Court? Second aspect would be when order under Section 25 of the Act has been passed, can any higher amount be awarded as interim maintenance under Section 24 of the Act?
10. Section 24 of the Act pertains to maintenance pendente lite and expenses of proceedings and 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."
11. On the other hand, Section 25 of the Act pertains to permanent alimony and maintenance and reads as under:
25. Permanent alimony and maintenance. (1) Any court exercising jurisdiction under this 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 may be secured, if necessary, by a charge on the immovable property of the respondent.
(2) If the court is satisfied that there is a change in the circumstances of either party at any time after it has made an order under subsection (1), it may at the instance of either party, vary, modify or rescind any such order in such manner as the court may deem just.
(3) If the court is satisfied that the party in whose favour an order has been made under this section has remarried or, if such party is the wife, that she has not remained chaste, or, if such party is the husband, that he has had sexual intercourse with any woman outside wedlock, it may at the instance of the other party vary, modify or rescind any such order in such manner as the court may deem just.
12. In plain terms, Section 24 of the Act provides for interim maintenance pending proceedings under the said Act either in favour of the wife or the husband when the Court finds that he has no independent income sufficient for her or his support and that necessary expenses of the proceedings. It is well-settled that an appeal is continuation of the original proceeding. In the appeal filed by the husband, therefore, the proceeding arising in the Family Suit thus continue. It would, therefore, not be difficult to arrive at a conclusion that an application under Section 24 of the Act would lie at an appellate stage. It would be incorrect to suggest that once the proceedings before the trial Court are over, provisions of Section 24 would not apply at an appellate stage. Besides, there is nothing in Section 24 of the Act to suggest that if no such application for maintenance pendente lite was filed before the Court below, the same cannot be presented for the first time before the appellate Court. Equally, it makes no difference whether such an application has been presented by the wife or the husband. Section 24 of the Act only refers to any proceedings where either the wife or the husband can claim such interim maintenance, if it is established that he or she had no independent income sufficient for her or his support and necessary expenses for the proceedings.
13. In case of Chitra Sengupta v. Dhruba Jyoti Sengupta (AIR 1988 Calcutta 98), Division Bench of Calcutta High Court considered similar issue and opined as under:
2. In opposing the application so far it relates to payment of maintenance pendente lite and cost of litigation, the learned Counsel for the husband-respondent has firstly contended that the wife-appellant did not file any such application in the trial Court and that is a fact which must be taken into consideration against her claim in this application. We are, however, of opinion that if she is otherwise entitled to maintenance under S.24, Hindu Marriage Act, the fact that she made no such application in the trial Court would be of no consequence.
14. In case of Ranganatham v. Shyamala (AIR 1990 Madras 1), learned Single Judge of Madras High Court was concerned with the situation where the wife's petition for annulment of marriage and for permanent alimony was rejected. Against such order, the wife had filed appeal. Pending such appeal, she filed application for interim maintenance under Section 24 of the Act. The Court held and observed as under:
6. Further, the learned counsel for the respondent also relied on a decision reported in Nalini v. Velu, AIR 1984 Ker 214. That was a case u/S.24 of the Hindu Marriage Act, and that has nothing to do with the provisions of S.25 of the Hindu Marriage Act. It was held in the above decision that, arrears of maintenance allowable from the dates of service of summons of the main petition for restitution of conjugal right on the wife, notwithstanding the maintenance application was filed only at the appellate stage of the main proceedings. The learned counsel for the respondent also filed three petitions C.M.P. 13290 to 13292 of 1988 for awarding interim maintenance and the legal expenses, fees and other charges to the respondent. The respondent claimed interim maintenance at the rate of Rs. 500 per month. Both the Courts below on the basis of the materials available before them fixed the quantum of maintenance at Rs. 300 per month. The appellant also did not dispute the same. It is to be noted that even though the respondent is not entitled to the permanent alimony till her lifetime, in view of the findings already arrived at in this judgment, she is certainly entitled to claim maintenance till the termination of the proceedings in view of the provisions u/Ss. 24 and 25 of the Act. Hence, I feel that it is just and proper to award the pendente lite maintenance till the disposal of the appeal, A.A.A.O. 38 of 1986 to the respondent, even though her claim for permanent alimony till her lifetime is negatived.
15. In the case of Jalsutram Annapurnamma v. Jalasutram Ramakrishna Sastry (AIR 1959 AP 49), Division Bench of Andhra Pradesh High Court while interpreting the term any proceedings under this Act held that the same would also give power to the appellate Court to grant interim relief under Section 24. Referring to Section 24 of the Act, it was observed as under:
The object of the section is to enable the husband or the wife, as the case may be, who has no independent income, to provide the other, so that the proceedings may be conducted and she or he may be maintained during the pendency of the proceedings. But the learned counsel contends that the word 'proceeding' in S. 24 must be confined to the original proceeding on the ground that the original proceeding is the one under the Act, whereas an appeal against the order in that proceeding is one under the Civil Procedure Code. In support of this contention, reliance is placed upon the provisions of S. 28. The said section reads :
"All decrees and orders made by the Court in any proceeding under this Act shall be enforced in like manner as the decrees and orders of the Court made in the exercise of the original civil jurisdiction are enforced, and may be appealed from under any law for the time being in force :
X X X X X"
It is true that S. 28 confers a right of appeal by reference to any law. But nonetheless, but for S. 28, the aggrieved party cannot have a right of appeal against an order of dissolution of marriage or other orders under the Act. The right of appeal is one conferred under the Act and, therefore, it is a proceeding under the Act. That apart, any proceeding under the Act is a proceeding in respect of a right conferred under the Act.
That proceeding starts in the original Court and continues till it is disposed of by the appellate Court. It is a commonplace that an appeal is a continuation of the original proceeding. The fact that an appeal lies under the Civil Procedure Code against an order in a proceeding under the Act, will not make the appeal any-the-less a proceeding under the Act, for, the appeal also relates to the adjudication in respect of the rights conferred under the Act.
In whatever way the problem is approached, it is manifest that the appeal against an order in a proceeding under the Act is a proceeding under the Act. In this view, we hold that the appellate Court has jurisdiction to make an interim order in terms of S. 24 of the Act.
16. The ground of maintainability raised by the respondent thus fails. 17. Coming to the second aspect of the matter, we may notice that there is a direct decision of learned Single Judge of this Court in the case of Anilkumar v. Sunita [1997 (2) GLH 533], wherein the very contention raised by the husband in the present case was raised before the learned Single Judge. It was pointed out that the trial Court had disposed the petition for divorce and while doing so it had passed order under Section 25 of the Act and such order of the permanent alimony having become final, the application for interim alimony pending appeal was not maintainable. The learned Judge held and observed as under:
It appears that claim for interim alimony and claim for permanent alimony, may be by way of enhancement, are two different claims and there clearly appears to be a confusion created in the submissions made before the learned Appellate Judge, who has clearly recognized the right of the respondent in so far as enhancement of alimony is concerned. If the matter was seriously contested before the learned Appellate Judge, he would have been in a position to focus his attention on the two different claims. The learned Appellate Judge could not have granted permanent alimony since he was reversing the decree for divorce and was dismissing the petition bearing Hindu Marriage Petition No.175 of 1986. Hence, the observations of the learned Appellate Judge do not run counter to the respondent's statutory right of claiming interim alimony. The submission of Mr. Bookwala, therefore, cannot be accepted and the application for interim alimony moved by the respondent has in law to be entertained.
18. On the other hand, we notice that learned Single Judge of the Calcutta High Court in the case of Malaya Das (Nee) Ghosh v. Basudeb Das [(1997) 1 CALLT 512] held that Section 24 and Section 25 of the Act apply at different stages of the proceedings. Section 24 contemplates payment of maintenance and expenses during the pendency of the proceedings, which cannot be ordered after the proceedings are over. Such powers are vested under Section 25 of the Act.
19. As noticed Sections 24 and 25 of the Act use entirely different phraseology. Section 24 pertains to maintenance pendente lite and expenses of the proceedings which can be awarded by the Court during the pendency of any proceeding under the said Act, if it appears to the Court that either the wife or the husband has no independent income sufficient for her or his support and the necessary expenses of the proceedings. While deciding any such question as provided in the Section itself, the Court would have regard to the petitioner's own income and income of the respondent and award such interim amount as may seem reasonable. Proviso to Section 24 enjoins a duty on the Court to dispose of such proceedings as far as possible within 60 days from the date of service of notice on the wife or the husband, as the case may be.
20. Few things immediately thus emerge from the provisions of Section 24 of the Act. Firstly, it is maintenance or order for expenses pending the proceedings. Secondly, the stress is on inability of the applicant owing to non-availability of sufficient income for her or his support and the necessary expenses of the proceedings. Thirdly, such proceedings are to be decided in a summary manner and as far as possible within 60 days from the date of service of notice.
21. In the case of Rukhmanibai v. Kishanlal Ramlala [AIR 1959 MP 187], learned Single Judge of Madhya Pradesh High Court for object of enactment of Section 24 observed as under:
5. Coming to the merits of the appeal, I do not find myself in agreement with the view that the word 'respondent' in S. 24 of the Act has any reference to the respondent in original proceedings. The reason for enacting the provisions in S. 24 is obviously that a wife or husband who has no independent income sufficient for her or his support or enough to meet the necessary expenses of the proceedings, may not be handicapped.
It is necessary on social and moral grounds that such a party should be able to maintain itself while the proceedings are pending and there is no freedom to contract another marriage. It is also necessary that a party who wants to defend the petition made on insufficient grounds should be able to do so without any financial difficulty. These considerations apply equally to a party, whether an applicant or a non-applicant in the main proceedings.
22. Likewise, in the case of Smt. Kamala w/o Shama v. Shama Rupchand and Others (AIR 1958 Bombay 466), Division Bench of Bombay High Court observed as under:
(2) .......... In order to decide which of these interpretations is correct, it is necessary to consider the object of the section, which clearly is to ensure that a party to a proceeding does not suffer during the pendency of the proceeding by reason of his or her poverty. The section provides for the grant of maintenance 'pendente lite' and the expenses of the proceeding. The party standing in need of such relief may be either the petitioner or the respondent, and prima facie', there is no reason why the Parliament should try to make a distinction when the needy party is the petitioner, who had made the original petition and when the person requiring interim relief is the respondent. The fact that under S. 24, relief can be granted to both the wife and the husband indicates that the Parliament intended to make no such distinction. A petitioner may institute a proceeding "bona fide', but may be unable to continue it, owing to his inability to meet the further costs of the proceeding. Similarly, there may be cases, in which the aggrieved party is really the respondent, but in which the proceeding is initiated by the other party in the hope or expectation that he might succeed owing to the inability of the respondent to defend it. Such cases frequently come before the Courts. It is difficult to believe that Parliament intended to give relief only in the first class of cases and made no-provision for the other cases. Unless, therefore, the Legislature has shown a clear intention to the contrary, which it has not, it would not be reasonable to confine the relief under this section only to the party, who had initiated the original proceeding before the Court.
Thus, main object of Section 24 of the Act is to provide for interim maintenance and expenses of the legal proceedings, pending proceedings under the said Act in favour of the petitioner who does not have sufficient independent income for his or her support. Basic philosophy of the statute being that a party to matrimonial proceedings should not be allowed to be handicapped in defending himself or herself for want of sufficient income.
23. On the other hand, Section 25 of the Act pertains to permanent alimony and maintenance. Subsection (1) thereof empowers the Court exercising jurisdiction under the said Act, at the time of passing any decree or subsequent thereto order payment of permanent alimony for the maintenance of the husband or the wife for his or her maintenance and support by directing such gross sum or such monthly or periodical sum for a term not exceeding the life of the applicant, 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 as it may seem to the Court to be just. Subsection (2) of Section 25 empowers the Court if it is satisfied that there is a change in the circumstances of either party after the order is passed under Subsection (1), to modify or rescind any such order in the manner as the Court may deem just. Subsection (3) of Section 25, once again empowers the Court to vary, modify or rescind any such order in the manner as the Court may deem just, if the Court is satisfied that the party in whose favour the such order has been made has remarried or if it happens to be the wife that she has not remained chaste, or if it happens to be a husband that he had sexual intercourse with any woman outside wedlock.
24. It can thus be seen that considerations for passing order under Subsection (1) of Section 25 of the Act are entirely different from those which would apply for passing order of interim maintenance pending the proceedings under Section 24 of the said Act. While awarding permanent alimony the Court would be guided by the income and property of the applicant as also by income and other property of the respondent. Besides such factors, the Court would also be guided by the conduct of the parties and other circumstances.
25. On one hand, therefore, prime object of awarding interim maintenance under Section 24 of the Act is that a person who does not have independent income sufficient to support himself or herself and to meet with necessary expenses of any proceedings, may not be left handicapped in prosecuting or defending such proceedings. On the other hand, the prime object of permanent alimony under Section 25 of the Act is maintenance of a spouse at the hands of one, who has sufficient income and property. These two considerations, therefore, do not overlap. Therefore, while disposing of any proceedings under the said Act, if the Court of competent jurisdiction has granted an order of maintenance under Section 25 of the Act, such order, of course, would be open to variation or modification as provided under Subsection (2) or Subsection (3) of the said Section, as the case may be, nevertheless such order would not shut out any consideration of any application under Section 24, if the proceedings are pending and other parameters envisaged therein are applicable. In other words, merely because the Family Court has passed an order of permanent alimony under Section 25 of the Act, would not make the wife's application under Section 24 for interim maintenance pending the present appeal not maintainable.
26. Coming to the facts of the present case, we have noticed that the husband is admittedly engaged in the business of printing. He, of course, claims that he is doing such business through job work and all the deposits in his bank account are merely his receipts and not his income. We, however, cannot lose sight of the fact that after we made more incisive scrutiny of his bank account and passed the order dated 20.11.2014, he revised his income tax return for the assessment year 2014-15 and declared his gross total income of Rs.75,634/enhancing his previous declaration by Rs.10,000/. Further, in our opinion, he has completely failed to explain two cheques issued by him in favour of Sudhaben in the month of April 2014, each of Rs.3,50,000/. Though he has stated in his last affidavit that Sudhaben being his niece had along with her husband helped the petitioner in his difficult times, there are no matching entries of receipts from Sudhaben in the account of the petitioner. How much amount was lent at what stage and in what manner is not stated. He has also not disclosed satisfactorily the source of Rs.7 Lacs, which he paid to Sudhaben. He has stated that he received such amount from his brother towards family partition, towards his own share and share of his four sisters. His books of accounts are not produced to support this theory. There is no other document or affidavit of any other family member to substantiate this. The nature of such property, the details of agreement, which according to him his brother retained to the exclusion of other family members, are not stated. Though it is stated that such arrangement took place after the father passed away, it is not disclosed when the father had passed away. Learned counsel for the husband, however, upon our query orally stated that the father had passed away in the year 1985. What prompted the family to arrive at this understanding nearly 20 years after the death of their father is not clarified.
27. All in all the husband has completely failed in giving truthful and supporting account of sum as large as Rs.7 Lacs paid by him to a distant relative. We, therefore, refuse to base our consideration merely on husband's disclosures in the income tax returns or before us. Considering the facts and circumstances of the case, it must be held that the husband has additional source of income over and above Rs.75,634/of gross yearly income disclosed by him in the revised return for the last assessment year. Considering the facts and circumstances of the case, the husband is ordered to pay Rs.5,000/per month to the wife by way of maintenance pendente lite from the date of this application till disposal of the First Appeal. This would be inclusive of Rs.1,500/he is obliged to pay by way of permanent alimony fixed under Section 25 of the Act. This application is allowed to the above extent.