ORDER
1. The respondent in I.A. No. 65 of 1982 in O.P. No. 235 of 1981, on the file of the learned I Additional Subordinate Judge, Madurai, is the petitioner herein. I.A. No. 65 of 1,982 in O.P. No. 235 of 1981 was filed by the respondent (wife) under S. 24 of the Hindu Marriage Act for directing the petitioner (husband) to pay to the respondent Rs. 1,200/towards legal expenses and Rs. 400/- per month towards maintenance.
2. The case of the respondent/wife is as follows She is the legally wedded wife of the petitioner herein, that the petitioner has preferred O.P. No. 235 of 1981 against the respondent herein seeking a decree for divorce on the ground of cruelty and desertion. The respondent herein filed a statement of objections and she is contesting the same. In the meanwhile, she has filed I.A. No. 65 of 1982 under S. 24 of the Hindu Marriage Act claiming Rs. 1,200/- towards legal expenses and Rs. 400/- per month towards maintenance alleging that she has no property or income for her maintenance, that she is living with her aged parents as a burden to her parents and that the petitioner herein, who is the husband of the respondent, is earning monthly salary at the rate of Rs. 800/-as a Government servant and that he is not providing any maintenance for her. Therefore, the respondent herein prayed for a direction to the petitioner' to pay to her litigation expenses and also interim alimony as prayed for by her. According to her, she is having no income or property and her parents are also leading a very hard life and she cannot afford litigation expenses to contest the main petition instituted by the petitioner frivolously and, therefore, it is necessary to pass an order for interim maintenance and also for litigation expenses as prayed for by her.
3. On the other hand, the case put forward by the petitioner herein in his counter-affidavit is that his monthly salary including allowances comes to Rs. 382.75 p. after deductions and this amount is quite insufficient for his maintenance and also for the maintenance of his son Ramkumar, who is aged six years and therefore, he cannot provide any maintenance as prayed for by the respondent. He has denied that his monthly salary is Rs. 800/-, that the respondent is living with her aged parents and that she is leading a hard life. He has claimed that the respondent is living with her sister's husband, a film producer and director, and that the respondent's brother is also employed Linder the said film producer drawing a high salary and that the respondent is also earning nearly Rs. 500/- per mensem in tailoring and the said amount is more than sufficient for the maintenance of the respondent herein. The petitioner claimed that the respondent is not entitled to claim any maintenance for the reasons aforesaid and that he is leading a hard life and he finds it difficult to maintain himself and his son Ramkumar with his meagre monthly salary and as the respondent is in affluent circumstances, the respondent has to provide maintenance to him.
4. On the case put forward by the parties, the Court below framed the following point for determination :
'Whether the petitioner (the respondent herein) is entitled to the litigation expenses and interim alimony and if so at what rate?'
No witnesses were examined on either side Exhibit 131, the salary certificate dt. 30-6-1980 issued by the Manager, Office of the Director of Medical Services and Family Welfare, Madras, was marked on behalf of the petitioner herein. The Court below came to the conclusion that the respondent is entitled to the litigation expenses in a sum of Rs. 250/ and interim alimony at the rate of Rs. 150, / per month from the date of filing of I. A. No. 65 of 1982 till the disposal of the main petition O.P. No. 235 of 1981 and accordingly allowed the application with costs. Aggrieved by the above decision of the Court below, the petitioner (Husband) has come forward with this Civil Revision Petition inter alia contending that the Court below had not property - appreciated the case put forward by him and did not adopt any basis or take into account any acceptable material for granting the relief prayed for by the respondent herein.
5. Mr. T. Viswanatha Rao, the learned Counsel for the petitioner, contends that the interim maintenance awarded by the Court below is excessive and the Court below ought to have taken into consideration the fact that the son of the parties, aged about 6 years, is also living with the petitioner and after deduction, the petitioner is getting only Rs. 558.75 per month. The learned counsel for the petitioner further submits that as per S. 36 of the Indian Divorce Act, 1869, only one-fifth of husband's net income is granted as interim maintenance and as such by applying the said principle of the Indian Divorce Act to the present case, the interim maintenance of Rs. 150/- awarded to the respondent is excessive. In support of his contention, Mr. T. Viswanatha Rao, the learned counsel for the petitioner, refers to the decision in Prasana Kumar v. Sureswari : AIR1969Ori12 . In the said decision, it was held that as for maintenance pendente lite, Courts generally allow it at one-fifth of the income of the husband after necessary deductions and that under the Indian Divorce Act the maximum alimony pendente lite has been fixed at one fifth of the net income. Under the 'Hindu Marriage Act, no such limit has been prescribed. In the absence of special circumstances, maintenance should be allowed at one-fifth of the net income of the husband and as regards litigation expenses, it should be reasonable. It is also held in the said decision that in determining the quantum of maintenance the conduct of the parties is also relevant. It is permissible for the Court to go into the conduct of the wife with reference to the question whether she should be held to have forfeited her claim for maintenance in sympathy of her claim.
6. On the other hand, Mr. N. Sivamani, the learned counsel for the respondent, submits that the Court below exercised its discretion judicially and it fixed a reasonable amount towards interim alimony taking into account the monthly salary of the petitioner and as such no deduction can be made so far as the interim maintenance of Rs. 150/- per month awarded by the Court below is concerned.
7. The right of a wife for maintenance is an incident of the status or estate of matrimony. In general, therefore, 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. S. 24 of the Hindu Marriage Act, 1955 deals with maintenance pendente lite and expenses of proceedings. It reads as follows :--
'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 expenses of the proceeding, it may, on 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.'
So far as Rs. 250/- awarded by the Court below towards litigation expenses, is concerned it is submitted by the learned counsel for the petitioner himself that the fixation of litigation expenses at Rs. 250/- is reasonable and the petitioner has no grievance against the same. It is only with respect to the interim maintenance that is granted in favour of the respondent, it is submitted on behalf of the petitioner that the discretion vested with the Court below had not been exercised judicially.
8. Section 24 of the Hindu Marriage Act 1955 lays down that in arriving at the quantum of interim maintenance to be paid by one spouse to another, the Court must have regard to the petitioner's own income and the income of the respondent. In the instant case. though it is alleged that the respondent herein is earning as a tailor, no evidence had been let in to substantiate the said contention of the petitioner herein. The petitioner has admitted that he is employed in Government Service. According to the respondent, the petitioner is getting a monthly salary of Rs. 800/-. But, according to the petitioner, his monthly salary is Rs. 564/- and he is getting Rs. 382.75 p. per month and with that meagre amount he finds it very difficult to maintain himself and his six years old son and, therefore, he cannot provide any maintenance to the respondent. To show that the petitioner's monthly salary is Rs. 564/-and that he is getting, after deductions, Rs. 382.75 p. per month, he has produced the salary certificate Exhibit B1. From Exhibit B1, it is seen that his monthly salary is Rs. 745/and that he is getting Rs. 558.75 p. after deductions. The petitioner has averred that the respondent is living with her sister's husband, who is a film producer and director, and that she is in affluent circumstances. The petitioner has also stated that the respondent is getting a monthly income of Rs. 500/- in doing tailoring work. The petitioner further averred in his counter that the respondent's brother one K. Gurumurthy is employed under the said film producer and he gets a high salary and, therefore, on that ground also, the respondent is not entitled to claim maintenance. The income of the brother of the respondent cannot afford a ground for refusing interim maintenance to the respondent herein. There is also no proof to show that the respondent is living with her sister's husband, who is in affluent circumstances. There is also no proof that the respondent is getting a monthly income of Rs. 500/- by doing tailoring work. Therefore, the Court below is correct in rejecting the case of the petitioner herein that the respondent is in affluent circumstances and that she is not in need of any maintenance from the petitioner. The Court below is also correct in holding that the claim of Rs. 1,200/- by the respondent herein towards legal expenses is excessive. The amount of Rs. 250/-fixed by the Court below towards legal expenses is correct and reasonable under the circumstances.
9. The petitioner is getting a monthly salary of Rs. 800/- and out of that amount, he has to pay some usual deductions like General Provident Fund, Insurance, etc. The petitioner has to maintain himself and also his son, is aged six years. If these factors are taken into consideration, the sum of Rs. 150/-per in awarded by the Court below towards interim maintenance to the respondent cannot be said to be either excessive or too meagre a sum. A reasonable sum had been awarded by the Court, below towards interim maintenance after exercising its discretion judicially and on the basis of the evidence placed before it.
10. The Court exercises a wide discretion in the matter of granting alimony pendente lite but the discretion is judicial and not arbitrary or capricious. It is to be guided on sound principles of Matrimonial law and to be exercised within the ambit of the provisions of the section and having regard to the object of the Act. An order for maintenance pendente lite or for costs of the proceedings is conditional on the circumstances that the wife or husband who makes a claim for the same has no independent income sufficient for her or his support or to meet the necessary expenses of the proceeding. It is also implicit in the section that the order would not be made if the respondent to the application is shown to have no property nor earning capacity, or is shown to have a very small income. But the fact that the respondent is not receiving any income from property for the time being would not be sufficient answer to the claim if the Court is satisfied that the property owned by the.
11. The amount payable by the husband to the wife is usually called alimony which signifies literally nourishment or sustenance. This word has not been used in this section because the primary signification of the word is maintenance to the wife and it is not in that sense, that the word maintenance is used in this section because this section provides for maintenance for the husband also. The maintenance means provisions for food, clothing and habitation and other necessaries for the support of the wife or the husband. This S. 24 of the Hindu Marriage Act deals with temporary alimony which is synonymous with the terms alimony pendente lite or alimony ad interim. The question whether the petitioner should be granted interim maintenance is to be decided first by the Court. Thereafter the quantum that should be awarded is left to the discretion of the Court, and that discretion should not be arbitrarily exercised but should be exercised judicially to serve the interests of justice. The Hindu Marriage Act itself has not set any limit to the maintenance awardable under S. 24. This section empowers the Court to award such sum as it may seem to the Court to be reasonable. What is a reasonable amount must differ from case to case. Neither a minimum nor a maximum percentage of the respondent's income can be fixed for the maintenance allowance. The quantum must depend on the circumstances of the case. No mathematical proportion of the respondent's income is to awarded. Following the practice under S. 36 of the Indian Divorce Act, it was held in Prasanna Kumar v. Sureswari : AIR1969Ori12 that ordinarily in the absence of special circumstances one-fifth of the net income of the respondent should be allowed. In this regard, the decisions in Mukan Kanwar v. Ajit Chand , Sushila Devi v. Dhani Ram and Dinesh v. Usha AIR 1979 Bom 178 may be useful. One-fifth of the net income of the respondent towards interim maintenance is not warranted and the rule has no place in the Hindu Marriage Act, as Section 24 itself expressly states that the interim maintenance should be a reasonable amount. For fixing the quantum, it is only the 'net' or disposable income of the respondent that should be taken into account. In the determination of the amount which would be just and proper such circumstances as the ability of the parties to work and earn, 'their financial condition, their status and position in life will all have to be taken into consideration. The Court should consider the means and the income of the parties, the nature of the litigation and allied circumstances and the equities of the parties should be adjusted.
12. The Courts should never lose sight of the fact that except in very exceptional cases, a Hindu wife never normally leaves the house of her husband and is never enamoured of staying with her parents after giving up the matrimonial home. Thus the consideration of the wife living with her parents is not relevant in determining the quantum. Since the temporary or interim allowance is awarded without going into the merits, the amount is usually less than the amount awarded as permanent maintenance and is normally restricted to the actual needs of the petitioner if living in comfortable retirement, but the amount should not be on a very parsimonious or miserly scale.
13. The Court would not be in a position to judge the merits of the rival contentions of the parties when deciding an application for interim alimony and would not allow its discretion to be fettered by the nature of the allegations made by them and would not examine the merits of the case. At the same time, there is nothing in S. 24 of the Hindu Marriage Act to prevent the Court from taking into consideration the conduct of the parties. A comparison of the language of this Section with that of S. 25 which deals with permanent alimony and maintenance shows that under latter section the conduct of the parties is an important factor for consideration in awarding the same. The words 'conduct of the parties' do not appear in the present section but the conduct of the parties would not be ignored by the Court in making the order asked for in assessing the amount of alimony. The matter is one for the Court to deal with as it thinks just and reasonable in its unfettered discretion and the Court has the power to make an order for alimony pendente lite for instance in favour of a respondent' wife notwithstanding the wife's adultery. S. 24 of the Hindu Marriage Act confers on the Court a general power to make orders for alimony pendente lite and the Court would take into consideration the whole of the circumstances of the case although the prime consideration even in such cases would be the means of the parties. The Court can in the exercise of its discretion vary an order for interim maintenance if there is such change in the circumstances of the parties justifying variation. There is nothing in the section which can disable the Court in appropriate cases, passing an order varying, modifying, resident-, or temporarily suspending any order made by it tinder the section even though there is no provision relating to the same.
14. Bearing in mind the above principles, relating to the provisions under S. 24 of the Hindu Marriage Act 1955, this Court is of the opinion that the Court below had exercised its discretion judicially and justly fixed the quantum of interim maintenance at the rate of Rs. 150 per mensem and had also awarded Rs. 250 towards legal expenses. There is no infirmity in the order under revision. Therefore, the civil revision petition is dismissed. Under the circumstances, there is no order as to costs.
15. Revision dismissed.