P.S. Krishna Murthy Vs. P.S. Umadevi - Court Judgment

Excerpt:
family - validity of provision - section 24 of hindu marriage act, 1955, article 14 of constitution of india and section 36 of divorce act, 1869 - validity of section 24 challenged on ground that it violates article 14 - section 24 gives equal right to either spouse to claim maintenance - matter was left to court's discretion to determine quantum of compensation - court considered income of both claiming spouse and other spouse while determining amount of compensation - no undue responsibility cast on parties under section 24 - held, section 24 not violative of article 14 and valid. - all india services act, 1951.sections 8 & 11 & a.p. buildings (lease, rent and eviction) control rules, 1961, rule 5: [v.v.s. rao, g. yethirajulu & g. bhavani prasad, jj] refusal by landlord to receive rent - deposit of rent in court - held, a tenant has the option to take recourse to section 8 in case of refusal or evasion by landlord to receive rent and if landlord were to not name a bank or refuse even the money order of rent, the tenant can deposit the rent in accordance with sub-rules (1) to (3) of rule 5. the notice to person entitled to rent and proper maintenance of accounts of such deposits under sub-rules (4) and (5) of rule 5 are solely dependent on compliance with sub-rule (3) by the tenant. the payment or deposit of rent under section 11 read with sub-rule (6) of rule 5 arises only in respect of a tenant who did not take recourse to section 8 or section 9 before an application for eviction has been made against him in respect of any rent in arrears by date of that application, whereas in respect of rent that becomes subsequently due since date of application for eviction, the tenant is bound to pay or deposit regularly until termination of proceedings in order to enable him to contest the application. any violation of section 11(1) to (3) and sub-rule (6) of rule 5 makes the tenant liable for the adverse consequences under sub-section (4) of section 11. thus, the provisions of section 11 and sub-rule (6) of rule 5 are intended only to ensure the payment and deposit of rent including arrears during pendency and till termination of proceedings for eviction. the forfeiture of right of tenant to contest in case of default is to protect the rights and interests of landlord pending such an application for eviction, but not to confer any right on tenant to plead that all defaults committed by him prior to application for eviction can never be considered wilful, if he were to deposit all arrears of rent due within fifteen days under rule 5(6) read with sub-section (1) of section 11. the object and effect of section 11 and sub-rules (1) to (5) to rule 5, the former being for protection of landlord during pendency of eviction proceedings and the later being for protection of tenant to avoid any liability for eviction on ground of wilful default. consequently, while taking recourse to section 8 by tenant is optional, once that option is exercised, compliance with sub-rules (1) to (5) of rule 5 becomes mandatory in the sense that any non-compliance with prescribed procedure will positively indicate the wilful nature of default committed in paying or tendering rent as prescribed. while deposit of rent in terms of provisions of act and the rules amounts to valid tender of rent to landlord, the failure to comply with rule 5 (3) requiring delivery of a copy of the challan for deposit of rent in office of controller or appellate authority, as the case may be, so as to enable controller or appellate authority to cause maintenance of proper accounts under sub-rule (5) and give notice of deposit to person amounts to wilful default in making valid payment or lawful tender of the rent by the tenant to the landlord. thus, where a tenant obtains an order to deposit rent, same shall be deposited at least by the last day of the month following that for which rent is payable and rent challan shall be delivered in the office of controller within a reasonable time so that rent controller can take necessary action for service of notice of deposit under sub-rule (4) of rule 5 of the rules within seven days of such delivery. in the absence of compliance in so depositing rent and delivering challan in the office of controller, tenant shall be deemed to have committed wilful default. - and the court, on being satisfied of the truth of the statements therein contained, make such order on the husband for payment to the wife of alimony pending the suit as it may deem fit; 36 of the divorce act gives right to alimony pendente lite only to the wife where the court is satisfied of the statements contained therein obviously of the income of the husband. as a fact he can complain of discrimination, section 24, as a matter of fact, is more beneficial to either spouse, but whereas s.order1. the petitioner is the husband. the respondent filed an application under sec. 24 of the hindu marriage act for payment of alimony pendente lite. the trial court awarded a sum of rs. 300/- to the respondent and rs. 150/- towards maintenance of the daughter. against this order, the revision petition has been filed.2. the petitioner is resisting this order mainly on the vires of s. 24 of the hindu marriage act (act 25 of 1955) for short 'the act'. it is contended that under sec. 36 of the divorce act maximum amount that could be granted is only 1/5th of the husband's average net income for the three years next preceding the date of the order, whereas under sec. 24 of the act the liability has been kept very vague. therefore, it is violative of art. 14 read with art. 44 of the constitution under common civil code. it is further contended that the liability under the divorce act would subsist till the date of confirmation by the appellate court, whereras under the act it is liable till the date of passing of the decree and there is discrimination in that regard. i am unable to agree. under art. 44 no doubt common civil code is contemplated to be brought on statute. though it is high time that a common civil code is to be made, yet, the legislature has not brought it on statute. the question is whether it is violative of art. 14 of the constitution. section 24 of the act reads thus :'24. 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 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.'section 36 of the divorce act reads thus :'36. alimony pendente lite : in any suit under this act, whether it be instituted by a husband or a wife, and whether or not she has obtained an order of protection, the wife may present a petition for alimony pending the suit. such petition shall be served on the husband; and the court, on being satisfied of the truth of the statements therein contained, make such order on the husband for payment to the wife of alimony pending the suit as it may deem fit; provided that alimony pending the suit shall in no case exceed one-fifth of the husband's average net income for the three years next preceding the date of the order, and shall continue, in case of a decree for dissolution of marriage or of nullity of marriage, until the decree is made absolute or is confirmed, as the case may be'. a reading of the provisions of sec. 24 of the act would adumbrate that the condition precedent for an application under sec. 24 is that the spouse, either wife or husband has no independent income sufficient to the spouse for his or her maintenance and of necessary expenses. in determining the quantum, regard should also be had to the petitioner's own income and the income of the other spouse in computation of the monthly maintenance payable by the other spouse and that matter was left to court's discretion to determine the quantum on the facts and circumstances in such case. it gives equal right to either spouse to claim maintenance. sec. 36 of the divorce act gives right to alimony pendente lite only to the wife where the court is satisfied of the statements contained therein obviously of the income of the husband. the court then may order payment of alimony to the wife pending the suit. however, the maximum is 1/5th of the husband's average net income for three years next preceding the date of the order and the liability would continue to subsist till the date the decree is made absolute or confirmed, as the case may be, by the appellate court viz., the high court. therein the right is confined to the wife and that too to a maximum of 1/5th of the husband's net income. here both may be at disadvantage. though the wife may have sufficient income for her maintenance, yet she can claim maintenance. that is not the case under sec. 24 of the act. the christian husband is denied of similar right of hindu husband. as a fact he can complain of discrimination, section 24, as a matter of fact, is more beneficial to either spouse, but whereas s. 36 confers right only on the wife and that too for a fixed amount, sec. 24 of the act contemplates to take into account not merely the income of the petitioner, but also the own income of the spouse claiming maintenance from the other spouse, be it husband or wife, as the case may be. therefore, it is more reasonable and beneficial to the parties and there is no invidious discrimination or undue disability to the wife or husband. no undue responsibility is cast on the parties under sec. 24 of the act. under the divorce act, confirmation of the decree is a condition precedent to its becoming operative and obviously for that reason sec. 36 of the divorce act makes the liability to pay interim alimony subsist till that date. but under the act, the moment the decree is made, it becomes operative and so the liability of the spouse to pay maintenance ceases from that date. accordingly, i do not find any justification to hold that sec. 24 is violative of equality provided under art. 14 of the constitution.3. it is next contended that the amount awarded is exorbitant. the income determined by the lower court is rs. 1,500/- per month and out of that rs. 450/- per month was the total amount awarded i.e., rs. 300/- to the wife and rs. 150/- to the daughter, besides rs. 500/- towards legal expense. in those circumstances, i do not find any justification for interfering with the order passed by the court below. the civil revision petition is accordingly dismissed, but in the circumstances, without costs.4. petition dismissed.

Judgment:
ORDER

1. The petitioner is the husband. The respondent filed an application under Sec. 24 of the Hindu Marriage Act for payment of alimony pendente lite. The trial Court awarded a sum of Rs. 300/- to the respondent and Rs. 150/- towards maintenance of the daughter. Against this order, the Revision Petition has been filed.

2. The petitioner is resisting this order mainly on the vires of S. 24 of the Hindu Marriage Act (Act 25 of 1955) for short 'the Act'. It is contended that under Sec. 36 of the Divorce Act maximum amount that could be granted is only 1/5th of the husband's average net income for the three years next preceding the date of the order, whereas under Sec. 24 of the Act the liability has been kept very vague. Therefore, it is violative of Art. 14 read with Art. 44 of the Constitution under common civil Code. It is further contended that the liability under the Divorce Act would subsist till the date of confirmation by the appellate Court, whereras under the Act it is liable till the date of passing of the decree and there is discrimination in that regard. I am unable to agree. Under Art. 44 no doubt common civil Code is contemplated to be brought on statute. Though it is high time that a common Civil Code is to be made, yet, the Legislature has not brought it on statute. The question is whether it is violative of Art. 14 of the Constitution. Section 24 of the Act reads thus :

'24. 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 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.'

Section 36 of the Divorce Act reads thus :

'36. Alimony pendente lite : In any suit under this act, whether it be instituted by a husband or a wife, and whether or not she has obtained an order of protection, the wife may present a petition for alimony pending the suit.

Such petition shall be served on the husband; and the Court, on being satisfied of the truth of the statements therein contained, make such order on the husband for payment to the wife of alimony pending the suit as it may deem fit;

Provided that alimony pending the suit shall in no case exceed one-fifth of the husband's average net income for the three years next preceding the date of the order, and shall continue, in case of a decree for dissolution of marriage or of nullity of marriage, until the decree is made absolute or is confirmed, as the case may be'.

A reading of the provisions of Sec. 24 of the Act would adumbrate that the condition precedent for an application under Sec. 24 is that the spouse, either wife or husband has no independent income sufficient to the spouse for his or her maintenance and of necessary expenses. In determining the quantum, regard should also be had to the petitioner's own income and the income of the other spouse in computation of the monthly maintenance payable by the other spouse and that matter was left to court's discretion to determine the quantum on the facts and circumstances in such case. It gives equal right to either spouse to claim maintenance. Sec. 36 of the Divorce Act gives right to alimony pendente lite only to the wife where the Court is satisfied of the statements contained therein obviously of the income of the husband. The Court then may order payment of alimony to the wife pending the suit. However, the maximum is 1/5th of the husband's average net income for three years next preceding the date of the order and the liability would continue to subsist till the date the decree is made absolute or confirmed, as the case may be, by the appellate Court viz., the High Court. Therein the right is confined to the wife and that too to a maximum of 1/5th of the husband's net income. Here both may be at disadvantage. Though the wife may have sufficient income for her maintenance, yet she can claim maintenance. That is not the case under Sec. 24 of the Act. The Christian husband is denied of similar right of Hindu husband. As a fact he can complain of discrimination, Section 24, as a matter of fact, is more beneficial to either spouse, but whereas S. 36 confers right only on the wife and that too for a fixed amount, Sec. 24 of the Act contemplates to take into account not merely the income of the petitioner, but also the own income of the spouse claiming maintenance from the other spouse, be it husband or wife, as the case may be. Therefore, it is more reasonable and beneficial to the parties and there is no invidious discrimination or undue disability to the wife or husband. No undue responsibility is cast on the parties under Sec. 24 of the Act. Under the Divorce Act, confirmation of the decree is a condition precedent to its becoming operative and obviously for that reason Sec. 36 of the Divorce Act makes the liability to pay interim alimony subsist till that date. But under the Act, the moment the decree is made, it becomes operative and so the liability of the spouse to pay maintenance ceases from that date. Accordingly, I do not find any justification to hold that Sec. 24 is violative of equality provided under Art. 14 of the Constitution.

3. It is next contended that the amount awarded is exorbitant. The income determined by the lower Court is Rs. 1,500/- per month and out of that Rs. 450/- per month was the total amount awarded i.e., Rs. 300/- to the wife and Rs. 150/- to the daughter, besides Rs. 500/- towards legal expense. In those circumstances, I do not find any justification for interfering with the order passed by the Court below. The Civil Revision Petition is accordingly dismissed, but in the circumstances, without costs.

4. Petition dismissed.