Judgment:
S.K. Chattopadhyaya, J.
1. The order dated 26.6.96 passed by the Second Additional District Judge, Jamshedpur in an application under Section 24 of the Hindu Marriage Act, 1955 in Matrimonial Suit No. 73/94 has been impugned by the husband-petitioner before this Court. In the said Matrimonial suit, a decree for dissolution of marriage has been claimed by the petitioner for the grounds mentioned in the application under Section 13(1)(i) of the Hindu Marriage Act (hereinafter referred to as 'the Act').
2. After being noticed, the opposite party-wife, in stead of filing a written statement countering the claim of the petitioner, filed an application under Section 24 of the Act claiming Rs. 2, 00000.00 as litigation expenses and a total sum of Rs. 11, 000/- per month as pendente lite for education and other expenses for her two sons namely. Shakti and Subhas as well as her own maintenance.
3. After hearing the parties, the learned court below has directed the petitioner to pay litigation expenses of Rs. 25, 000/- and a sum of Rs. 6, 000/- per month towards pendente lite alimony as maintenance for the opposite party as well as the minor children.
4. Mr. P.K. Prasad, learned Counsel appearing on behalf of the petitioner, strongly contended at the first instance that when no petition was filed under Section 26 separately, the Court below could not have granted maintenance to the minor children. In support of his contention, he has relied on the decision in the case of Chitra Sengupta v. Dhurba Jyoti Sengupta, reported in A.I.R. 1988 Cal. 98 and Bankim Chandra Roy v. Smt. Anjali Roy, reported in A.I.R. 1972 Patna 80 :1971 PLJR 309.
He has further urged that there being no finding that the application-wife was not able to maintain herself and her sons from her own income, the court below erred in law in directing payment of maintenance as well as alimony. According to him, before such order can be passed, there must be a specific finding that the income of the wife was not sufficient either to maintain herself or her sons. In this regard, he has relied on a decision in the case of Manoj Kumar Thakur v. Shibani Devi, reported in 1991 (2) PLJR 311.
Relying on some other decisions in the case of Mukun Kunwar v. Ajeet Chand, reported in A.I.R. 1958 Rajasthan 322, Ram Pal v. Smt. Nisha, reported in A.I.R. 1994 Rajasthan 204 and in the case of Raghvendra Singh v. Seema Rai, reported in A.I.R. 1989 M.P. 259, Mr. Prasad contended that in a case where the wife is a working lady, one-fifth of husband's net income should be allowed to her. Lastly he contended that there being no evidence to show that property belongs to the petitioner is fetching any rent, the court below could not have presumed net income from that property, in as much as law requires assessment of actual income for giving such direction either under Section 24 or 26 of the Act.
5. Countering the argument of Mr. Prasad, Mr. A.K. Sinha, leaned counsel appearing on behalf of the opposite party No. 1, has contended that it is now settled law that the court has ample power to pass an order for maintenance to the children in a petition under Section 24 of the Act even when a separate application has not been filed under Section 26. In support of his contention, he was referred the decision in the case of Durga Pada Banerjee v. Smt Sushmita Banerjee, reported in 1991 (2) PLJR 215.
He further contends that payment of one-fifth of husband's net income to the wife is not a hard and fast rule and that depends on facts and circumstanced of the case. He urged that when the court below has considered the income of he husband-petitioner, the High Court will not interfere with the same conclusion lightly. Mr. Sinha has contended that the petitioner has already opted for voluntarily retirement scheme and as such, he will get entire salary from his employer and secondly his deposit in GPF must be held to be his total income. In support of his contention, he has relied on a decision in the case of Chandrikaben Chhanalal Patel v. Rameshchandra Chandilal Patel and Anr. reported in 1986 (1) All India Hindu Law Reporter 426.
6. In order to appreciate the contentions raised on behalf of the parties, some claims and counter claims asserted by the parties in the petition under Section 24 and its reply may be looked into.
The petition filed by the wife under Section 24 is Annexure 1. According to her, she is working in Jamshedpur Blood Bank, a private organisation as a Doctor, where she is getting Rs. 4, 000/- per month as-salary. Their eldest son Shakti, who is getting education in Dehradun, is aged about 13 years and second son Subhas is 6 months old. She has admitted that being a Medical Officer in Jamshedpur Blood Bank, she has a high status and she can maintain a car with a driver and a house-servant. It is also admitted that she usually visits Dehrudun to see her son Shakti. According to her , except that salary from the Blood Bank, she has no property of her own and her parents are also living a very hard life and due to their financial stringency, they cannot afford maintenance or litigation expenses to her. She is not in a position to maintain herself and to incur expenses of her two children without getting some financial help from her husband. According to her, as sum of Rs. 4, 000/- is the monthly expenses for her eldest son at Dehradun and Rs. 2, 000/- is required for the second son and Rs. 5, 000/- for herself and further Rs. 2, 00000/- is required for meeting the litigation expenses. The husband is drawing salary more than Rs. 10, 000/- per month and Rs. 10, 000/- is monthly house rent from his property and he has having share interest of Rs. 12, 000/- per month from the Bank and other sources. Total income of the husband thus, according to the wife, is Rs. 30, 000/-per month. She has however, admitted that the husband has to give Rs. 5, 000/- to maintain his mother, Smt. Jagdamba Sahiba.
7. A rejoinder was filed to this petition by the husband contenting the claim of the wife stating that as inspite of court's order she did not file documents and written statement till the filing of the application under Section 24, the said petition could not have been considered by the court at that stage. Regarding financial background, case of the husband is that apart working in Jamshedpur Blood Bank, the wife has a lucrative private practice from which she earns lot of money. However, being an agent of LIC, she is receiving huge amount as commission. She is maintaining an air condition car bearing Registration No. DL 20B-7974 purchased at Rs. 2.5. lakhs and also maintaining a driver and a house-servant. She visits her eldest son at Dehrudun regularly. He has denied the cost of educational expanses of Shakti and maintenance of Subhas as exorbitant. He also controverted the claim that the wife is required to have Rs. 5, 000/- per month as her own maintenance.
8. Refuting the claim of the wife about his own income, he has stated that he is working in Tisco Sports Department and drawing a salary at Rs. 4186/-per month. In order to prove the same, he has 'enclosed his salary slip as Annexure 1 to the said rejoinder. He has also denied the fact that the properties fetching income as house rent and he is receiving Rs. 12, 000/- per month form the shares held by him. Accordingly to him, the wife is maintaining her father and large family at Dumka and- she also purchased and modified a house at Dumka and also entered into an agreement to purchase a house at Benaras. The opposite party-wife is not only maintaining her father's large family at Dumka but her father also intends to purchase a house at Banaras, apart from renovating his property out of financial help given by the wife. Giving example of financial stability of opposite party No. 1, the petitioner has stated that she is having an air conditioner, BPL automatic washing machine, Vediocon colour television, Godrej Almirah, jewellaries and above all one and half acre of land at Guargaon (Haryana). With all these details, it is contended that his wife is living a luxurious life having strong financial background and as such is not required to have financial help from him.
9. Section 24 of the Hindu Marriage Act reads as follows:-
Maintanance Pendente lite and expenses of proceedings.- Where in any proceedings under 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.
10. It is well settled that the right of a wife for maintenance is an incident of the status or estate of matrimony. Thus, is general, the husband is bound to defray the wife's costs of any proceeding under the Act and to provide for her maintenance and support pending the disposal of such proceeding. It is also recognised that when the wife has separate means sufficient for her defence and subsistence she should not be entitled to alimony nor costs during the proceeding; and if the husband has neither property nor earning capacity the court would not award any interim alimony. On these principles that the law relating to matrimonial causes provides for rules for payment of maintenance pendete lite and expenses of proceedings by the husband to the wife. Section 24 adopts those principles and goes one radical step further when it lays down that any such order can be made not only in favour of the wife but also in favour of the husband. Making order under this Section is a matter of discretion with the Court and where it is shown that such spouse has no independent income sufficient for her or his support and the necessary expenses of the proceeding, the court may make an order in favour of either of the parties. The amount of interim maintenance that one spouse may be ordered to pay to the other must be such as appears reasonable to the court in the exercise of that discretion. The basic principle is that the court in ordering so must have regard to the petitioner's own income and income of the respondent. No fix rules can be expected on the question of granting alimony and it depends on the facts and circumstances of each case.
11. A number of case laws have been cited at the Bar, which may be noticed at the first instance.
In AIR 1986 Kerala 23, while considering the mode of assessment of net income, it is held that deduction can be made in respect of compulsory outgoings but optional deductions cannot be considered. This case under Section 36 of Divorce Act, some what similar view is of the Gujarat High Court in 1986 (1) All India Hindu Law Reporter 426. In A.I.R. 1990 Kerala 262, interpreting Section 36 of the Divorce Act it is held that irrespective of there independent income, the wife is entitled to get one-fifth of the husband's average income. However, in the case of Smt. Sheh Prabha v. Ravinder Kumar, 1995 SC 2170. which was under Section 20 of the Hindu Adoption and Maintenance Act, though the wife was earning handsome salary and more than the husband, as because the two daughters were living with their mother, the Apex Court directed the husband to pay Rs. 4000/- per month to the wife for maintaining the two daughters till they married or are in a position to earn their livelihood. This decision of the Supreme Court, in my view, is quite on a different footing and not applicable to the facts of the instant case. Similarly the ruling reported in 1993 Kerala 139 is not applicable to the present case as in this case, no argument has been advanced that as because the opposite party No. 1 is being maintained by her father, she is not entitled to get any amount. In 1996 Delhi 94, the High Court was called upon to consider the provision of Sections 13 and 25 of the Hindu Marriage Act arid Section 23 of the Hindu Adoption and Maintenance Act where the divorce had already taken place.
The decisions reported in 1987 Delhi 43, 1939 M.P. 259, 1958 Raj, 322 and 1987 Raj, 159 have only down the principle as to how the Court should consider the facts and circumstances of each case while granting relief under Section 24 of the Act.
12. In the case of Chitra Sengupta (supra), a Division Bench of the Calcutta High Court has held that if the amount of maintenance awardable to the wife is to depend on the status and station of the husband, the amount which can be regarded to be sufficient for her support must also depend on and vary with the status and station of the husband. It is further held that the expression 'income sufficient for her support' in Section 24 of the Act would not only such amount as would be sufficient for the wife to take out her existence at the subsistence level, but would cover such amount as would be necessary for the necessaries suited to the status and station which the wife would have enjoyed as the wife of the respondent-husband.
13. In the case of Durga Pada Banerjee (supra), a learned Single Judge of this Court, interpreting the provisions of Section 24 of the Act, has opined that the word 'maintenance' means any amount which may be sufficient for subsistence and reasonable living of the party concerned. Provisions of Section 24, according to this decision, are beneficent in nature and such power is exercised by court not only out of compassion but also by way of judicial duty so that an indigent spouse may not suffer at the instance of the affluent spouse.
14. Yet in another case of Manoj Kumar Thakar (supra), another learned Single Judge of this Court has held that the expression 'having regard to' occurring in the second part of Section 24 refers to and is relevant only for the purpose of quantification of the sum, which is to be paid by the husband or the wife. In a case where there is no dispute that the petitioner of the application under Section 24 has no income of her own, the order in terms of Section 24 directing payment of maintenance pendente lite and the expenses of the proceeding should ordinarily be made. His Lordship has also considered that courts in India, while dealing with the question of maintenance pendete lite to Hindu wives have generally followed the one third rule in case of low income.
15. In Ram Pal's case (supra), while considering the status of the spouse, Rajasthan High Court has held that where wife is also a working lady, it cannot be said that she cannot meet out day-to-day expenses. It was held, considering the income of the husband and the wife, that she was not entitled to receive any amount of maintanance to meet out her day-to-day expenses from her husband.
16. In this context, I may usefully refer to a decision in the case of Pradeep Kumar Kapoor v. Shailja Kapoor, reported in A.I.R. 1989 Delhi 10, in which a learned single Judge of the Delhi High Court has considered the scope of Section 24 read with Section 26 of the Act and laid down the following principles 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 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 circumstances 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.'
17. In the back drop of the aforesaid decisions, the findings of the trial court in the instant case may be looked into.
Upon considering of evidence, the court below has found that after deduction, the wife gets Rs. 4790/- per months as salary. Her appointment letter prohibits private practice of trade and no evidence has been adduced by the husband to show that she was having lucrative or any sort of income from her private practice. No proof was there that being an LIC agent the wife was getting commission regularly. On the other hand, the court has considered the return submitted by the Branch Manager of LIC that she earned a total amount of Rs. 8797.61 paise as commission for the period from 6.4.94 to 31.3.95 and for which a sum of Rs. 822/- was deducted as tax. The court below has held that she might be a Crorepati Agent in the year 1989 but this does not consolidation her earning. On the other hand, two pay slips for the month of March, 95 and November, 95 clearly establish that husband's monthly income was Rs. 11, 000/- per month. This was his gross income per month and after deduction of Rs. 4, 062/- per month as income tax deposit, GPF and LIC etc. the net income comes to the tune of Rs. 6, 938/-.
18. In the case of Chandrikaben Chhanlal Patel (supra), the Gujarat High Court has held as follows:-
The amount which is being deducted from his salary would be by way of contribution towards Provident Fund or it may be by way of instalments of repayment of loans which might have taken by the opponent. In either case it would be the amount which would go for the benefit of the opponent himself. If the amount is being deducted towards Provident Fund Contribution, then the opponent himself is going to get the benefit of the savings which he may get in future. If he has taken the loan and the amount is being deducted towards the instalment of loan then in that case he has already enjoyed the case received by him and he is repaying the debts. In either case this amount cannot be deducted from total earings of the opponent-husband.
19. I respectfully agree with the aforesaid view and my opinion, the court below has correctly assessed monthly salary of the petitioner as approximately Rs. 10, 000/- per month. This finding of the trial court, in my view, cannot be interfered with. However, the findings of the trial court that husband-petitioner was earning a sum of Rs. 5000/- as rental of house property is, in my view, cannot be sustained. No specific evidence was put forward by the wife which could lead the court below to presume that share in the property fetches rent of Rs. 5000/- per month to the husband-petitioner. Only because he was giving Rs. 5000/- per month to his mother as maintenance and because the house is located at a posh locality at Jameshedpur , the court below could not have presumed the net income from that property. What Section 24 requires is not existence of property but the quantum of income, which is received or accrues to the person from such property. My this finds support from the case of Manoj Kumar Thakur (supra).
20. In my vide, as the learned court below has refused to believe the contention of the wife about income of Rs. 12, 000/- per month from the Bank interest and other shares in absence of any document, it should have also disbelieved income from house property in absence of any positive evidence from the wife. Thus, in my opinion, the quantification of the income of the husband @ Rs. 15, 000/- per month by the court below is not justified.
21. Considering the aforesaid net income of the parties, in my view, the joint income of the husband and wife would have been approximately Rs. 15, 000/- per month. It is admitted by the wife that husband is to pay a sum of Rs. 5000/- to his mother per month as maintenance. From what source this amount is being paid is not before the court and as such, it is not possible to give a positive finding regarding the same.
22. The contention of Mr. Prasad that in considering that petition under Section 24 of the Act, the court below could not have directed the petitioner to pay the maintenance to the minor children, in my view, is not sustainable in law. This matter has been settled by this Court in the case of Durga Pada Banerjee (supra). While distinguishing the case of Bankim Chandra Roy v. Smt Anjali Roy (supra), the learned single Judge has held that the judgment of that court is not a binding precedent and must be held to have been passed sub silencio , Having held so, the learned Single Judge was of the view that the court below has not committed any illegality in granting maintenance to the child of the parties.
23. Agreeing respectfully with the said decision, in my view, only because a separate petition under Section 26 of the Act was not filed by the wife for allowing maintenance to the children, it cannot be held that order passed by the court below to that effect illegal.
24. Having given my anxious consideration to the facts and circumstances of the case and the laws thereto, I am of the view that justice could be meted out by modifying the impugned order to the extent that the husband is liable to pay Rs. 5000/- per month in stead of Rs. 6000/- per month as directed by the court below as maintenance for the opposite party No. 1 and two children. The amount of litigation expenses is also modified to the extent that the wife is entitled to get a total sum of Rs. 20, 000/-. The husband-petitioner is directed to deposit alimony and maintenance to the wife @ Rs. 5000/- per month from December, 94 up-to September, 96 by 17th October, 96 before the court below. Similarly the amount of Rs. 20, 000/- also must be deposited before the court below by the said period.
25. In the result, this application is dismissed subject to modification in the amount as indicated above.