Anirudha Mishra Vs. Dr. Sujata Acharya - Court Judgment

L. Mohapatra, J.

1. The prayer of the opposite party under Section 24 of the Hindu Marriage Act for payment of interim maintenance having been allowed at the rate of Rs. 800/- per month and further prayer of the opposite party for litigation expenses having been allowed to the extent of Rs. 3,000/-, the present petitioner has filed this writ application challenging the order 12-5-2003 passed by the revisional Court.

2. It appears that a suit under Section 13 of the Hindu Marriage Act has been filed by the present petitioner for divorce which is pending consideration in the Court of the learned Civil Judge (Sr. Division), Bhubaneswar. In that suit an application was filed by the present opposite party under Section 24 of the Hindu Marriage Act claiming interim maintenance at the rate of Rs. 5000/- per month and litigation expenses to the tune of Rs. 20,000/-. The opposite party filed the application on the ground that the petitioner ill-treated her due to non-fulfilment of dowry demand and drove her out from the matrimonial house. After the opposite party was ousted from the house, no arrangement was made for her maintenance by the petitioner and that she was suffering from diseases which require constant medical attention. Having no income to maintain her and contest the proceeding, the application was filed for interim maintenance and litigation expenses. The present petitioner filed objection contending therein that the opposite party voluntarily left the house of the petitioner since 1997 and is staying with her sister in a house adjacent to the house of the petitioner. It is also stated in the objection that after marriage the opposite party completed her higher studies and obtained Ph.D. Degree and got an employment as a teacher in St. Xavior's School, Bhubaneswar and is presently drawing a salary of Rs. 5,000/- per month, it is also stated in the objection that the opposite party also earns by writing articles and Editorials in different magazines and since she is earning more than the petitioner, it cannot be said that she is not in a position to maintain herself and accordingly a prayer was made to reject the petition under Section 24 of the Hindu Marriage Act. It further appears from the record that the opposite party examined herself as P.W. 1 and the present petitioner examined himself as O.P.W. 1 in the proceeding so far as it relates to claim of interim maintenance and litigation expenses. The learned Civil Judge (Sr. Division) on consideration of evidence adduced before him rejected the petition of the opposite party on the ground that she was earning Rs. 3246/- per month towards her salary from the school and her mother was also getting family pension. The learned Civil Judge also took into consideration the fact that mother of the present petitioner was suffering from cancer and the petitioner is to pay back Rs. 1.5 lakhs which he has taken as a loan for treatment of his parents. The said order of the learned Civil Judge (Sr. Division) was challenged by the opposite party in a revision in the Court of the learned Additional District Judge, Bhubaneswar. The learned Additional District Judge allowed interim maintenance at the rate of Rs. 800/- per month from February, 2003 and also directed payment of Rs. 3,000/- towards litigation expenses to the petitioner. Challenging the order passed in the revision, the husband has approached this Court under Articles 226 and 227 of the Constitution of India.

3. The learned counsel appearing for the petitioner submitted that the evidence adduced before the Court clearly indicate that the income of the petitioner is Rs. 3696/-per month whereas the opposite party is earning Rs. 3240/- towards salary every month. The income of both the parties being more or less the same, the revisional Court could not have directed payment of interim maintenance to the opposite party as she had sufficient income to maintain herself. The learned counsel appearing for the opposite party, on the other hand, submitted that the school in which the opposite party is working is a private school and there is no certainty of continuance of service or payment of salary regularly. It was also contended by the learned counsel for the opposite party that the appointment of opposite party in the said school not being regular one, she may lose her job at any time in which case she will not be in a position to maintain herself.

4. From the discussions made by both the Courts below in their respective judgments, it is clear that the opposite party is working as a teacher in St. Xavior School. Bhubaneswar and is drawing salary of Rs 3240/- every month. It also appears that she is not regular employee of the school and the school being a private one, there is no certainty of continuance of service. However, on the other hand it also appears that the present petitioner is working as a News Reporter in O.T.V., Bhubaneswar and is drawing a salary of Rs. 3496/- per month. The company in which the petitioner is working is also a private company and it cannot be said that there is any certainty of continuance of service. If comparison is made so far as salaries of the respective parties are concerned, it appears that the petitioner is earning a little more than that of the opposite party. The expenditure incurred by both the parties include treatment of their respective parents. The mother of the opposite party is getting family pension whereas the mother of the present petitioner is yet to get family pension and she is also suffering from cancer.

5. On consideration of the above, we are of the view that the opposite party stands on much better footing than that of the present petitioner and since she is earning Rs. 3240/- every month towards salary from the school where she is working, it cannot be said that she is not in a position to maintain herself. We are, therefore, of the view that there was no reason for the revisional Court to allow interim maintenance of Rs. 800/- per month. However, considering the fact that the opposite party is working in a private school where continuance of service is uncertain, we observe that in the event the opposite party loses her job, she can approach again the Court where the matter is pending for interim maintenance. So far as litigation expenses are concerned, we are of the view that there is no reason for us to interfere with the same. We accordingly allow the writ application in part and quash the revisional order, Annexure-2 so far as it relates, to interim maintenance of Rupees 800/- per month. It is directed that the petitioner shall pay Rs. 3000/- to the opposite party as litigation expenses as directed by the revisional Court and in the event the opposite party loses her job, she shall be at liberty to approach the learned Civil Judge (Sr. Divisional), Bhubaneswar where the suit is pending for grant of interim maintenance again.

6. The writ application is allowed in part to the extent indicated above.

Sujit Barman Roy, C.J.

7. I agree.