S.K. Keshote, J.
1. All these three arise from Hindu Marriage Petition No.280 of 1995 in the court of 5th Extra Assistant Judge, Vadodara, and the same are being taken up for hearing together and are being disposed of by this common order.
2. Civil Revision Application No.1469 of 1996 is directed by the husband against the order of the court below, ex.8 dated 21st August 1996, under which the court has directed the petitioner-husband to pay the respondent-wife, interim alimony at the rate of Rs.2,000/= p.m. from the date of filing of the petition, i.e. 28.12.95 till the final disposal of the main petition. The court below further ordered the petitioner-husband to pay Rs.5,000/= to the respondent-wife towards expenses for contesting the petition.
3. Civil Revision Application No.1631 of 1996 is filed by wife against this very order for enhancement of the amount of interim alimony as well as the amount of litigation expenses.
4. In Misc. Civil Application No.118 of 1999, the wife is praying for transfer of Hindu Marriage Petition No.280 of 1995 from the Court of 5th Extra Assistant Judge, Vadodara, to City Civil Court, Ahmedabad, and further prayer has been made for hearing and deciding this petition along with Hindu Marriage Petition No.381 of 1995 pending in the City Civil Court at Ahmedabad.
5. Mr. N.A. Pandya, learned counsel for the husband contended that the amount of interim alimony granted to the wife under the impugned order is towards higher side. It is contended that the husband has to maintain his parents and his son born out of the wed-lock first marriage. It is contended that the take home salary of husband is a meagre sum and in case out of this, Rs.2000/= are to be paid to the wife, he will not have any money with him to maintain his parents and his son as well as himself. Lastly, it is contended that the wife has left the matrimonial home herself and for this conduct, she may not be granted any maintenance. He lastly submitted that the learned trial court should not have awarded even a pie towards litigation expenses as the petitioner is eligible for free legal aid.
6. Mr. Y.F. Mehta, learned counsel for the wife submitted that the husband is employed in I.P.C.L. at Vadodara and as per his pay-slip, his gross income for the month of July 1996 is Rs.10,333=0. The learned trial court has committed illegality in deducting therefrom Rs.1699=72 as the amount of overtime wages as well as Rs.884/= deducted in the pay slip towards income tax. In his submission the gross income has to be taken into consideration for determining what sum has to be paid to the wife towards interim alimony. In his submission the income tax amount could not be deducted for the reason that it would have been a voluntary deduction to lower down that income so that the wife may not get adequate amount of maintenance. The husband has not produced on record of the court below as well as in these revision applications to show what income tax is paid for the assessment year during which month of July 1996 falls. It is further submitted that the learned trial court has not awarded any maintenance to daughter Aditi. The wife has to maintain daughter also and this amount of Rs.2000/= as awarded towards interim alimony is a meagre amount. For litigation expenses, the learned counsel for the wife submits that litigation highly costs litigants and more so when there are different proceedings. Advocates are to be paid fees as well as the wife has to incur other expenses of litigation. Looking to the nature of litigation what she is claiming, i.e. Rs.25,000/= by way of costs, is a reasonable amount which should have been awarded. Replying to the contention raised by learned counsel for the husband that the wife is entitled for free legal aid, Mr. Mehta submits that legal services authority only provides advocate and not other amount of expenses. Otherwise also, Mr.Mehta submits, under Section 24 of the Hindu Marriage Act, 1956, it is the duty of the husband to bear out expenses of litigation of the wife. Being a statutory duty, even if the wife is entitled for free legal aid, the husband can be given direction to bear the expenses where the wife decides not to go to the legal services authority for legal aid. He submits that the amount of maintenance as claimed by wife, i.e. Rs.10,000/= per month should have been granted.
7. In rejoinder, Mr.Pandya, learned counsel for husband submits that no interim alimony may be granted to daughter Aditi, as she was born out of wedlock of previous husband. Her real father has also made arrangement for her maintenance, that is to say, Rupees one lac have been invested in Unit Trust of India. Otherwise also, what he submits that there cannot be any liability for maintaining this girl upon the husband. With respect to the claim of wife of Rs.25,000/= towards expenses of litigation, in his submission, she is not entitled for any amount and he placed reliance on the provisions of Section 12 of the State Legal Services Authority Act. He submits that when the wife is entitled for free legal aid, the husband may not be burdened with the expenses of litigation.
8. I have given my thoughtful considerations to the submissions made by learned counsel for the parties.
9. The learned trial court has held that the amount of over time wages is always uncertain. The over time wages is not in fact regular wages and it depends on availability of overtime work. This is variable amount and as such, it cannot be taken into consideration for arriving at a gross regular income of husband for the purpose of awarding interim maintenance to wife. In case the contention of the learned counsel for wife is accepted and this amount of overtime wages is taken to be regular income, then it my cause prejudice to the husband for the reason that in the subsequent months, he may not get any overtime allowance. If the figure of maintenance to be awarded to the wife is calculated taking this amount to be a regular income of the husband, it will put burden upon the husband which otherwise would not have been there. Because of uncertainty of these wages it is always advisable not to take it into consideration for arriving at the figure of gross income of the husband in the proceedings initiated under Section 24 of the Hindu Marriage Act, 1956. The learned counsel for the wife has not produced on the record of these civil revision applications any document to show that overtime wages were paid to the husband in the months subsequent to July 1996. The very fact that these documents were not produced by wife goes to show that this is not the regular income of the husband and in subsequent months over time wages were not paid to him.
10. The amount of income tax which has been deducted in the salary slip of July 1996 of the husband could not have been deducted from the income of the husband. It is a figure of amount which on the instructions of the employee is deducted by the employer. There are all possibilities that deliberately deduction under the head of income tax may be made towards higher side by the husband in case where the wife is applying for interim alimony. If we go by the facts of this case, the application has been filed by wife under Section 24 of the Hindu Marriage Act, 1956, on 28th December 1995. The pay slip for the month of July 1996 has been produced and deliberately this figure would have been shown by the husband to take benefit in the court. Otherwise also, by merely deducting income tax in one month it cannot be taken to be the income tax to be paid every month by husband. The husband has not produced on record of the proceedings before the learned trial court as well as of these revision applications what ultimately his tax liability is assessed by the Income Tax Department for the assessment year in which the month of July 1996 falls. That would have been the correct figure to be deducted from the gross salary of the husband. I find sufficient merits in the contention of the learned counsel for wife that this amount could not have been deducted from the gross salary of the husband. Be that as it may, it will not materially effect the net income of the husband which was taken to be in this case of Rs.7,500/=. The court cannot be oblivious of the fact that looking to the gross income of the husband, some liability of income tax may fall upon him. However, as said earlier, this is not very material and relevant in the present case. One third of the net salary of the husband may be a reasonable sum which has to be awarded to the wife as interim maintenance. The learned trial court has awarded Rs.2,000/= to the wife which is less than one third of the net income of the husband which was taken to be Rs.7,500/=. The revision application of the husband has no merits and it cannot be allowed. The amount of maintenance awarded to the wife is otherwise towards lower side. The learned trial court has not committed any illegality in exercise of its jurisdiction in passing of this order and the revision application filed by husband deserves to be dismissed.
11. The amount of maintenance of Rs.2,000/= awarded is towards lower side. If we go by the normal rule, it should have been one third of the net income and if we go by this, then the amount should have been Rs.7500/3 = Rs.2500/=.
12. The vital issue, as raised by learned counsel for wife, namely, whether there is liability of the husband to maintain daughter Aditi or not, I do not consider it to be appropriate to decide. However, it is fact that Rs.1 lac have been invested by her father in long term investment and presently the wife is not getting anything from that investment. The wife has to maintain this girl also and whatever the amount of maintenance awarded to her, she has to share out of this for expenses of her daughter also. This is another ground which supports my view to enhance the amount of interim maintenance granted to the wife.
13. As a result of this discussion, the revision application of the wife deserves to be allowed. Accordingly it is allowed and the husband is directed to pay to the wife, interim maintenance at the rate of Rs.2500/= with effect from 28th December, 1995.
14. The learned trial court has not considered this aspect of the matter and felt satisfied to award meagre amount of maintenance. It is not a charity but a right and the court has to take care that a reasonable sum is awarded to wife so that she may be able to maintain herself. In case the order of the learned trial court is allowed to stand, as what it is passed, then certainly it will cause prejudice to the wife.
15. The Legal Services Authority Act provides free legal aid to women, children, and persons belonging to schedule caste, schedule tribe, etc. When free legal aid is available to women, I find justification in the contention of the learned counsel for the husband that cost of litigation could not have been awarded by the court. Section 24 of the Hindu Marriage Act, 1956, no doubt confers powers upon the court to order for payment of costs of litigation against husband. This Act was enacted in the year 1956 when Legal Services Authority Act was not there and this conception of free legal aid to women was not there in the country. However, it is option of the wife either to go to the legal services authority to get free legal services or to ask the husband to pay her the cost of expenses. I am constrained to observe that despite of the fact that Legal Services Authority Act provides totally free legal aid to women in almost all the cases of matrimonial disputes, this class of litigants are represented by paid advocates. Either we are unable to give message to this class of litigants or there are some other causes which persuade them not to approach to the authority for free legal aid. I do not consider it to be necessary to go any deep on this point but when the wife has engaged an advocate and litigation costs also to her, the court has not committed any error by awarding Rs.5000/= towards the cost of litigation to her. This is a reasonable sum looking to the high cost of litigation in the country. The contention of the learned counsel for the husband is not acceptable on another ground. Free legal aid is available but Section 24 of the Hindu Marriage Act provides that the court may order for grant of costs of litigation in favour of wife against husband. This is a statutory provision and so long as it is there it is always open to the wife to apply for the cost of litigation and the court has power to award the same in case the facts and circumstances so warrant. However, I do not find any justification in the prayer of the wife for enhancement of the amount of costs of litigation to the tune of Rs.25,000/=. The husband is a low paid employee and it is too difficult for him to bear out such heavy expenses. Moreover, where free legal aid is available to the wife it is difficult to appreciate on her side to engage costly lawyer. She has to take also care that as far as possible, heavy burden of litigation expenses may not fall on the husband. The court has to consider the matter with reference to both, the husband and wife and in the context of the facts where free legal aid is available to the wife, heavy amount towards costs of litigation normally should not be awarded. The wife could have got a good advocate from Legal Services Authority if she would have approached it. The demand of wife for enhancement of amount of costs of litigation is highly unreasonable in the facts of this case coupled with the fact that now free legal service is available to her and accordingly it cannot be granted.
16. In the result Civil Revision Application No.1469 of 1996 fails and the same is dismissed. Rule discharged. Civil Revision Application No.1631 of 1996 is allowed to the extent as indicated above and Rule therein is made absolute accordingly. The husband is directed to pay Rs.1500/= as costs of this revision application to the wife.
17. In Misc. Civil Application No.118 of 1999, the wife has prayed for transfer of Hindu Marriage Petition No.280 of 1995 from the court of 5th Extra Assistant Judge, Vadodara to the City Civil Court at Ahmedabad.
18. The learned counsel for the petitioner-wife submits that one case filed by petitioner-wife in the City Civil Court, Ahmedabad, being Hindu Marriage Petition No.381 of 1995 is pending. The respondent-husband has to go to Ahmedabad to attend that case and in case this petition is also transferred to this court, it will not cause any inconvenience or suffering to the husband. The wife is getting a meagre sum towards maintenance and in case she has to attend the court at Vadodara, it will cost heavily to her. Moreover, she has to look after her daughter Aditi from her first marriage. Summing up his contention, the learned counsel for the petitioner-wife submits that when two petitions are pending in different courts, it is always better and in the larger interest of the parties that the same are to be tried and disposed of by one court and the petitioner, being a weaker sex, otherwise also, looking to her condition and the amount of maintenance which she is getting, the petition which has been filed by husband may be transferred from Vadodara to Ahmedabad. In support of his contentions, he placed reliance on the decision of Karnataka High Court in the case of C.S. Shyamala v. C.S. Srikantaiah reported in AIR 1990 KARNATAKA 146.
19. The learned counsel for the respondent-husband strongly opposed this Misc. Civil Application. However, he has failed to give out how any prejudice or inconvenience will be caused to the husband in case the Hindu Marriage Petition is transferred from Vadodara to Ahmedabad.
20. I have given my thoughtful considerations to the submissions made by learned counsel for the parties.
21. It is not in dispute that the wife filed Hindu Marriage Petition No.381 of 1995 which is pending in the City Civil Court at Ahmedabad. This petition, even if filed after the respondent-husband filed Hindu Marriage Petition No.280 of 1995, is hardly of any substance and relevance as the fact remains that once case is pending between the parties in the City Civil Court at Ahmedabad. To go to Vadodara and attend the case in the facts that the wife has to look after her daughter and the amount of maintenance which she is getting from the husband, will certainly cause inconvenience and cost to her. The wife is residing with her parents who are staying at Ahmedabad. Being a lady, as and when she has to go to attend the court at Vadodara, somebody has to accompany her and in these days where all are occupied, it may be very difficult for her to arrange every time the company of some other person. The powers which vest in this court under Section 24 of the Civil Procedure Code, are comprehensive and discretionary. The fact that this court can, on its own motion, even without notice to the other side, withdraw any suit or appeal or other proceedings pending in any court subordinate to it and transfer the same speaks of wide powers which are vested in it under Section 24 of the Code. Legislature has not limited the power and discretion of this court under Section 24 of the Code, meaning thereby, the powers are not circumscribed by any considerations. Under Section 24 of the Code, consideration is that if the court is satisfied that circumstances so warrant such transfer the matters can be ordered to be transferred. Looking to the facts of this case and the meagre amount of cost of expenses awarded to the wife, at least to the extent of overcoming avoidable expenditure some relief would be available to the wife on transfer of this case to Ahmedabad. Further, if the two matters are decided by two different courts, certainly it may result in contrary decisions also. In the same case, there will be duplication of evidence. Such matters are to be decided by one court and by consolidating the same which will be in the larger interest of the parties also. These two matters are to be decided by one court and either of them has to be transferred, but here the wife is praying for transfer of the matter from Vadodara to Ahmedabad, and looking to the facts of this case, her request deserves to be allowed. The learned counsel for the respondent-husband has failed to show how any prejudice or irreparable injury will be caused to the husband in case the matter is transferred from Vadodara to Ahmedabad. Vadodara is not at a far off distance from Ahmedabad and to attend the court at Ahmedabad it will not cause any inconvenience to the husband more so when he has to attend one case at Ahmedabad. In fact, by transfer of this case to Ahmedabad, the husband will be relieved of other additional visit to Ahmedabad.
22. In the result, this Misc. Civil Application succeeds and the same is allowed and the Hindu Marriage Petition No.280 of 1995 is ordered to be transferred from the Court of 5th Extra Assistant Judge, Vadodara, to the City Civil Court at Ahmedabad. It is further directed that the transferee court may consider to consolidate the two petitions, i.e. Hindu Marriage Petition No.381 of 1995 and Hindu Marriage Petition No.280 of 1995. Rule is made absolute accordingly.