The court has the discretion to determine the amount of maintenance pendente lite and expenses of the proceeding, taking into consideration the income of both spouses and the necessary expenses of the proceeding.

Sachchidanand Jha, J.

1. In a matrimonial suit for decree of divorce the Court below has passed an interim order directing payment of maintenance pendente lite at the rate of Rs. 300.00 per month and also expenses of the proceeding quantified at Rs. 4000.00 under Sec. 24 of the Hindu Marriage Act, 1955 (hereinafter referred to as the Act). The husband has come to this Court in revision.

2. Before I proceed to dispose of the case on merits, I may mention that earlier, pursuant to the orders of this Courts both the parties appeared in person before me along with their respective fathers in order to enable the Court to make endeavour for amicable settlement between them. During course of the Session, which was held in camera, in my Chambers, learned Counsel for the parties also were present. However, on account of recalcitrant attitude of the husband and his father the endeavour to bring about settlement between the parties was given up and this case was posted for hearing on merits.

3. Mr. Tarakant Jha, appearing on behalf of the petitioner, has assiduously submitted that in the absence of any finding in the impugned order, as also the necessary evidence, with respect to the income of the husband, the impugned order directing payment of maintenance pendente lite and the expenses of the proceeding cannot be sustained. Sec. 24 of the Act reads as follows :

"24. Maintenance, pendente lite and expenses of proceedings : 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 the petitioner the expenses of the proceeding such sum as, having regard to the petitioners own income and the income of the respondent. It may seem to the Court to be reasonable"

4. It would appear from the aforesaid provisions that the Section is in two parts. The first part of the Section provides for enquiry to be held by the Court in regard to the income of the wife or husband (applying under Sec. 24), as the case may be, as to whether her or his income is sufficient for her or his support. Once after such an enquiry it is held that the wife or the husband, as the case may be, has no sufficient income to support herself or himself, the Court will proceed to make an order directing the other side to pay maintenance pendente lite as well as expenses of the proceeding. At that stage, which will constitute the second stage of enquiry, the Court will, for the purpose of determining the sum of the maintenance or the expenses, take into consideration the own income of the wife or husband, as the case may be, as well as the income of the other side. In my opinion, the expression "having regard to occurring in the second part of Sec. 24 refers to and is relevant only for the purpose of quantification of the sum, which is to be paid by the husband or the wife. In a case where there is no dispute that the petitioner of the application under Sec. 24, in the instant case the wife-opposite party, has no income of her own, the order in terms of Sec. 24 directing payment of maintenance pendente lite and the expenses of the proceeding should ordinarily be made, in this connection it would not be out of place to mention that the history of law of alimony or maintenance can/be traced back to the conditions then prevailing in England where the wife was considered to be a tutelage to and economically dependent on her husband and was thus entitled to be maintained so long she was the wife. The conditions prevailing in India even now, by and large, are no better, in many English decisions it has been held that the wife is the privileged suitor. In my opinion, therefore, having regard to the conditions prevailing in India the provisions of Sec. 24 have to be liberally construed so as to make them vibrant rather than dormant.