ORDER
K.L. Manjunath, J.
1. The respondent has filed a Petition in M.C. No. 726/2001 on the file of Family Court at Bangalore for grant of divorce and to award a maintenance of Rs. 10,000/- per month for the rest of her life. The petitioner is working as Deputy Commissioner of Commercial Taxes. The respondent was working in a Bank and now she has obtained voluntary retirement. In the proceedings before the Family Court, the respondent filed an application under Section 24 of the Hindu Marriage Act requesting the Court to direct the petitioner herein to pay a maintenance of Rs. 7,500/- per month contending that her husband is getting more than Rs. 20,000/- as salary per month and that she is not in a position to maintain herself and that she cannot be a burden to her father. The petitioner-husband contended that the respondent-wife has received a retirement benefit of Rs. 9,00,000/- (Rs. Nine Lakhs), therefore, she is not entitled to claim a separate maintenance. The respondent further contended that out of the retirement benefits, she has purchases a site and constructing house for her shelter. Therefore, the retirement benefits cannot be considered as an income.
2. The Trial Court after considering the grounds urged by both the parties held that the respondent-wife is required to construct a residential house, therefore the retirement benefits received by her cannot be taken into account while calculating the income of the parties. Accordingly, the Trial Court has directed the petitioner-husband to pay a monthly maintenance of Rs. 4,000/-. This order is called in question in this Petition.
3. I have heard the Counsel for both the parties.
4. The only point to be considered by this Court in this Writ Petition is whether the retirement benefits received by the respondent is required to be considered while directing the petitioner to pay the interim maintenance or whether the retirement benefits has to be treated as an income white awarding interim maintenance under Section 24 of the Hindu Marriage Act.
5. The facts in this case are not in dispute. It is not in dispute that the respondent was working in Bank and has received a sum of Rs. 9.00 lakhs after taking voluntary retirement. According to the respondent she has made arrangement to purchase a site at a cost of Rs. 5.00 lakhs with an intention to construct a residential house for her use. The Trial Court considering the statement made by the respondent without taking into consideration the amount received by the respondent under the voluntary retirement scheme, has directed the petitioner to pay interim maintenance at the rate of Rs. 4,000/- per month.
6. According to this Court, the Family Court has committed an error in not considering the income of the respondent. The amount of Rs. 9.00 lakhs received by the respondent from her employer has to be treated as an income and it was the duty of the Trial Court to consider the probable interest which may be accrued on the retirement benefit if the same is invested in any Nationalised Bank or in any other Institution. After calculating the interest which would be accrued on Rs. 9.00 lakhs and if any pension is being received by the respondent and also taking into consideration the income of the petitioner and the probable amount that may be required for the maintenance of respondent and considering the status of the parties, the Family Court has to award interim maintenance. But in the instant case, the procedure followed by the Family Court is not in accordance with law. If necessity arises, it is open for the Trial Court to direct the parties to lead the evidence if the parties are disputing the income of the respective parties,
7. In the circumstances, this Writ Petition is allowed. The Order passed by the Family Court in awarding the interim maintenance of Rs. 4,000/- per month is hereby set-aside. The matter is remitted back to the Family Court directing the Family Court to consider the income of both the parties and decide the case on merits and in accordance with law within three months from the date of receipt of this order.
8. It appears, pursuant to the order of this Court, the petitioner had deposited a sum of Rs. 52,500/- which amount has been withdrawn by the respondent. Subject to the outcome of the Family Court, the said amount is required to be adjusted.