The wife is entitled to claim a reasonable amount of maintenance from the husband, taking into account the needs of the wife, the capacity of the husband, and the claims of other family members. The rule that the wife cannot claim more than 1/5th of the husband's net income as interim maintenance is irrational and militates against the equality of the spouses under the Hindu Marriage Act, 1955.

JUDGMENT - V.S. DESHPANDE, J.:---This Letters Patent Appeal by the husband arises out of a Notice of Motion for fixation of interim maintenance under section 24 of the Hindu Marriages Act of 1955, taken out by the wife in her Matrimonial Petition No. 302 of 1976 for restitution of conjugal right. She claimed Rs. 600/- per mpnth on the basis that she was unemployed and the husband was earning Rs. 1200/- per month. She also claimed some amount towards costs. The husband asserted in reply that he was earning Rs. 720/- per month, and not Rs. 1200/-. He also alleged that the wife was employed as a teacher and was earning Rs. 450/- per month. He further pleaded that he has to support his father, mother, sister and brother, and that his fathers income was meagre. The wife then filed a second affidavit alleging that the father was earning Rs. 1,500/- per month and the brother and the sister were earning members and that the family was running dry-fruit business. The husband, however, denied all this but did not indicate what fathers income was.

2. A Judge of the City Civil Court allowed the application and fixed such maintenance at Rs. 145/- per month from July, 1976 and Rs. 125/- towards the costs of the suit. He thought that the wife could claim only 1/5th of the net income of the husband which he found to be Rs. 720/- per month. The wife filed an appeal against the said order in this Court and pressed for enhancement of the said quantum of interim maintenance. Hajarnavis, J. raised the quantum of maintenance from Rs. 145/- to Rs. 350/- per month and that of costs from Rs. 125/- to Rs. 500/-. In his opinion, the amount of Rs. 145/- per month was too inadequate for a young educated girl living in Bombay in these days of high cost of living. He also found that the husband has failed to prove what his other liabilities were. The Letters Patent Appeal is directed against this judgment.

3. Mr. Kapasi, the learned Advocate appearing for the appellant, raised two points for our consideration. He says that the wife under no circumstances can claim more than 1/5th of the net income of the husband. He relied on judgments of other High Courts, i.e. in the cases of (Mukan Kunwar v. Ajeetchand)1, A.I.R. 1968 Raj. 322. (Prasad Kumar v. Sureshwari)2, A.I.R. 1969 Orissa 12. and (Smt. Sushila Devi v. Ram)3, A.I.R. 1965 H.P. 12. He, secondly contends that such an enhancement in the amount of maintenance will prevent the husband from maintaining his parents, brother etc. within his monthly income of Rs. 720/- witch is his only income as found by both the courts.

4. Coming to the first contention of Mr. Kapasi, he relies on the practice followed in the City Civil Court in this behalf, which in turn is claimed to have been based on the rulings cited by him. The learned Judges in those cases have, no doubt, relied on the corresponding provision of section 36 of the Indian Divorce Act of 1869, the proviso of which disentitles the wife from claiming interim alimony in excess of the 1/5th of the net income of the husband. In the absence of any indication in this behalf of the Hindu Marriage Act, 1955, the learned Judges thought it proper to rely on this as a guiding factor. We are unable to trace any rational basis for this rule which prevents the wife from claiming more than 1/5th, even when her needs, and capacity of the husband, warrant awaring larger amount. This amounts almost to be a rule of the thumb. Such a provision in the Act of 1869 may have been based on the then notions and concepts, as to a womans status and position in the society and her claims against the husband. The provisions of the Hindu Marriage Act enacted in 1955 are, on the other hand, based on the recognition of the wife as equal partner of her husband in life. This is just in keeping with the guarantee of equality of every citizen afforded by the Constitution. It does not depend on whether the wife chooses to divote her talents to household work or to sphere outside. This Act does no

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