S.N. Hussain, J.
1. Heard learned counsel for the petitioner and learned counsel for the opposite party.
2. This petition has been filed for review of this Court's order dated 23.9.2004 allowing Civil Revision No. 1002/2002 filed by the opposite party and setting aside impugned order dated 1.6.2002 passed in Divorce Case No. 27/96, by which the learned 1st Additional District Judge, Begusarai had rejected the defendant's (wife) petition under Section 24 of the Hindu Marriage Act, 1955 (hereinafter referred to as 'the Act') for the sake of brevity).
3. By the order under review this Court had directed the plaintiffs- petitioner to pay Rs. 2,000/- as monthly maintenance pendente lite to the defendant-petitioner alongwith arrears from the date of filing of the divorce case.
4. The petitioner, who was opposite party in the revision case raises two points for review of the earlier order of this Court, namely, the quantum of the monthly maintenance pendente lite and the retrospective effect of the said order from the date of filing of the divorce case. With respect to the quantum of the monthly maintenance fixed, the learned counsel for the petitioner submits that due to laches on the part of the petitioner proper assistance could not be provided at the time of hearing of the revision case and for that purpose he has now produced two statements of pay accounts (Annexure 8 and 8/A) for the months February, 2001 and September, 2004, from which he claims that the average net salary was only Rs. 5,000/- as he was working as lower grade mechanical staff and that too only when he was serving on the ships. He further submits that according to Section 24 of the Act own income would mean net income, which in case of the petitioner was not more than five thousand per month. Learned counsel for the petitioner also submits that as per Section 36 of the Indian Divorce Act the amount of maintenance per month cannot be more than 1/5th of the salary of the husband. Hence, according to him, the amount of maintenance should not have been fixed at any rate more than Rs. 1,000/- per month. With respect to second point the contention of the learned counsel for the petitioner is that maintenance should be prospective from the date of the order and not retrospective and in that connection he relies upon a decision of the Apex Court in the case of Smt. Jasbir Kaur Sehgal v. District Judge, Dehradun and Ors., reported in, AIR 1997 SC 3397. He further submits that the suit for divorce was filed in the year 1996 and in the same year the wife (opposite party) appeared in the suit but the petition in question was filed about five years thereafter in 2001 and hence a long delay was caused at the behest of the wife who merely wanted to harass the petitioner and obtain the money in a lumpsum. Lastly he raises another question that the language of Section 24 of the Act indicates that expenses of the proceeding should be paid in a lumpsum and only the maintenance amount has to be paid monthly, but by the order of this Court under review the earlier order of the Court below for payment of cost of litigation has been upheld. Hence, on the aforesaid grounds learned counsel for the petitioner prays for review of the earlier order of this Court.
5. On the other hand, learned counsel for the opposite party (wife) submits that the instant review petition is not maintainable as no defect or error has been pointed out in the decision making process and in this connection he relies upon a judgment of this Court in the case of Fulak Enterprises v. Bihar State Electricity Board, reported in, 2000 (3) BBCJ 82. He further submits that the petitioner has also not raised any claim regarding discovery of any new fact or material about which he had no earlier information, hence no case for review even as per Order XLVII of the CPC is made out. He further contends that during the pendency of the civil revision petition this Court asked the husband to produce his salary sheets of 2004, but although the said civil revision remained pending for a very long period, the said salary sheets were not produced by him even after several adjournments and specific orders of this Court. Now a statement of salary has been produced as Annexure-8 but that is of the year 2001, whereas only one statement of salary of 2004 has been produced as Annexure 8/A, which shows that the petitioner is getting about Rs. 8,000/- per month which is liable to statutory deduction of Rs. 260/- as provident fund and Rs. 30/- as group insurance only and nothing more. Hence, after the said deduction he would be getting about Rs. 7,700/- and the other deductions shown are voluntary in nature. Learned counsel for the opposite party further contends that the opposite party is a graduate and is preparing for competitive exam, for which she is attending coaching classes also but she has no income of her own, hence the petitioner is liable to maintain her and he is under bounded duty and legal obligation to bear her expenses. He also states that in the aforesaid circumstances the amount of maintenance at the rate of Rs. 2,000/- per month is reasonable and not at all excessive.
6. With regard to the question of quantum of maintenance learned counsel for the opposite party further submits that Section 36 of the Indian Divorce Act is not attracted in the instant case as the said Act is for the Christians, whereas parties to this revision are Hindus and are governed by the Hindu Marriage Act, 1955 in which no such limitation of 1/5th of the salary is prescribed. So far the question of the retrospectivity of the order in question is concerned, learned counsel for the opposite party submits that the Hon'ble Apex Court in its decision in the case of Smt. Jasbir Kaur Sehgal (supra) has specifically held that it is discretion of the Court as to from which date maintenance has to be paid and in that case no retrospective order was passed due to the dilatory attitude of the wife, but here, he submits, no delay has been caused by the wife rather this is a clear case of high handed attitude of the husband who threw out his wife and filed a case for divorce and hence he is clearly liable to maintain his wife from that date. Learned counsel for the opposite party finally submits that the question of payment of litigation expenses is not involved in the instant case as the said costs were ordered to be paid by the Court below much earlier vide orders dated 05.1.1998 and 23.4.2001, which were never challenged by the petitioner who deposited the amount as ordered. He further submits that the instant matter involves a simple question for payment of maintenance amount, for which petition had been filed subsequently on 21.6.2001 and the same has been considered and decided by the impugned orders, but the petitioner even violated the revisional order and filed this frivolous case for review merely to harass his wife and hence this case is fit to be dismissed.
7. After hearing the learned counsel for the parties and after perusing the materials on record, it is quite apparent that the attitude of the petitioner (husband) was throughout to violate the orders of this Court and to avoid producing the papers, namely, his salary sheets, which were clearly in his possession. It may be pointed out that several opportunities were given to the petitioner to produce those papers and even after several orders the said papers were not produced and now when the civil revision has been finally decided, he comes up with a paper showing his monthly salary about Rs. 8,000/- out of which the statutory deductions are less than Rs. 300/-. Hence even after considering the said document it is apparent that the petitioner is capable of paying his wife an amount of Rs. 2,000/- per month as maintenance as admittedly she is his legally wedded wife and he had not denied in his counter affidavit filed in the civil revision the claim of the wife that she has no source of income to maintain herself. Learned counsel for the petitioner has tried to take help of the provisions of Indian Divorce Act but it is clearly not applicable to the parties of this case who are governed by Hindu Marriage Act in which there is no provision for such limitation.
8. So far the claim of the petitioner that Section 24 of the Act cannot have any retrospective effect is concerned it is also against the specific provision of law and the case laws as there is no such bar in Section 24 and even the decision of the Supreme Court relied upon by the petitioner has held that maintenance can be ordered to be paid retrospectively and it is the discretion of the Court after considering the grounds to pass any order. In the instant case it is quite apparent that there is no delay on the part of the wife as the petitioner has been harassing her by filing the suit at Munger, whereafter it was transferred to Begusarai on the order of this Court and thereafter the petition for maintenance was filed by the wife. Hence there is no delay or laches on the part of the wife, rather it was the husband who after throwing out his wife had filed a case for divorce. In this connection it may be pointed out that at the time of hearing of the civil revision learned counsel for the husband had relied upon a decision of this Court in the case of Jitendra Kumar alias Jitendra Dhiman v. The State of Bihar and Ors., reported in, 2004 (1) BBCJ 25, in which it was held that in today's time an award of maintenance of Rs. 2,000/- (two thousand) per month was not unreasonable and ordered the husband to pay the said amount to the wife.
9. So far the least contention of the learned counsel for the petitioner regarding litigation cost is concerned, the said matter is although not in issue here but it may be made clear that the provision of Section 24 of the Act does not say that the cost of litigation should necessarily be paid in lumpsum. Learned counsel for the petitioner has failed to produce any provision of law or case law to show that the cost of litigation cannot be paid in monthly instalments. It is also to be considered that the cost of litigation is a heavy burden on a wife who is facing dissolution of marriage and has no source of income of her own and also that the said cost occurs every month at least once. Hence this Court on the earlier occasion has held that the learned Court below by the earlier orders was quite justified in passing the said orders for cost of litigation should be paid every month. Moreover, the said orders were never challenged by the plaintiff-petitioner and hence he cannot raise such frivolous and blatantly baseless claim again and again.
10. In the aforesaid circumstances, I find no merit in this civil review petition, which is, accordingly dismissed.