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PATNA HIGH COURT
S.K.Chattopadhyaya, J.
Indu Dhari Singh
Versus
Rita Singh
Civil Revision No. 299 of 1996 ;
Decided On : SEPTEMBER 25, 1996
HINDU MARRIAGE ACT - SECTION 24 - MAINTENANCE PENDENTE LITE - QUANTIFICATION - FACTORS TO BE CONSIDERED - COURT'S DISCRETION - MODIFICATION OF ORDER.
Fact of the Case:
Husband challenged the order passed by the trial court directing him to pay Rs. 25,000 as litigation expenses and Rs. 6,000 per month as maintenance for his wife and two minor children under Section 24 of the Hindu Marriage Act, 1955.
Finding of the Court:
The court held that the trial court erred in presuming the husband's net income from his property without any specific evidence and that the quantification of his income at Rs. 15,000 per month was not justified.
Issues: 1. Whether the court below erred in granting maintenance to the minor children in a petition under Section 24 of the Act without a separate petition under Section 26. 2. Whether the court below erred in quantifying the husband's income and in determining the amount of maintenance and litigation expenses.
Ratio Decidendi: 1. The court held that the trial court did not commit any illegality in granting maintenance to the children, as settled by the decision in Durga Pada Banerjee v. Smt Sushmita Banerjee. 2. The court held that the trial court erred in presuming the husband's net income from his property without any specific evidence and that the quantification of his income at Rs. 15,000 per month was not justified. The court modified the order to reduce the maintenance amount to Rs. 5,000 per month and the litigation expenses to Rs. 20,000.
Final Decision: The court dismissed the husband's application and modified the trial court's order to reduce the maintenance amount to Rs. 5,000 per month and the litigation expenses to Rs. 20,000.
S.K.Chattopadhyaya, J.
1. The order dated 26.6.96 passed by the Second Additional District Judge, Jamshedpur in an application under Sec. 24 of the Hindu Marriage Act, 1955 in Matrimonial Suit No. 73/94 has been impugned by the husband-petitioner before this Court. In the said Matrimonial suit, a decree for dissolution of marriage has been claimed by the petitioner for the grounds mentioned in the application under Sec. 13(1)(i) of the Hindu Marriage Act (hereinafter referred to as the Act).
2. After being noticed, the opposite party-wife, in stead of filing a written statement countering the claim of the petitioner, filed an application under Sec. 24 of the Act claiming Rs. 2, 00000.00 as litigation expenses and a total sum of Rs. 11, 000.00 per month as pendente lite for education and other expenses for her two sons namely. Shakti and Subhas as well as her own maintenance.
3. After hearing the parties, the learned court below has directed the petitioner to pay litigation expenses of Rs. 25, 000.00 and a sum of Rs. 6, 000.00 per month towards pendente lite alimony as maintenance for the opposite party as well as the minor children.
4. Mr. P.K. Prasad, learned Counsel appearing on behalf of the petitioner, strongly contended at the first instance that when no petition was filed under Sec. 26 separately, the Court below could not have granted maintenance to the minor children. In support of his contention, he has relied on the decision in the case of Chitra Sengupta V/s. Dhurba Jyoti Sengupta, reported in A.I.R. 1988 Cal. 98 and Bankim Chandra Roy V/s. Smt. Anjali Roy, reported in A.I.R. 1972 Patna 80 :1971 PLJR 309.
He has further urged that there being no finding that the application-wife was not able to maintain herself and her sons from her own income, the court below erred in law in directing payment of maintenance as well as alimony. According to him, before such order can be passed, there must be a specific finding that the income of the wife was not sufficient either to maintain herself or her sons. In this regard, he has relied on a decision in the case of Manoj Kumar Thakur V/s. Shibani Devi, reported in 1991 (2) PLJR 311. Relying on some other decisions in the case of Mukun Kunwar V/s. Ajeet Chand, reported in A.I.R. 1958 Rajasthan 322, Ram Pal V/s. Smt. Nisha, reported in A.I.R. 1994 Rajasthan 204 and in the case of Raghvendra Singh V/s. Seema Rai, reported in A.I.R. 1989 M.P. 259, Mr. Prasad contended that in a case where the wife is a working lady, one-fifth of husbands net income should be allowed to her. Lastly he contended that there being no evidence to show that property belongs to the petitioner is fetching any rent, the court below could not have presumed net income from that property, in as much as law requires assessment of actual income for giving such direction either under Sec. 24 or 26 of the Act.
5. Countering the argument of Mr. Prasad, Mr. A.K. Sinha, leaned counsel appearing on behalf of the opposite party No. 1, has contended that it is now settled law that the court has ample power to pass an order for maintenance to the children in a petition under Sec. 24 of the Act even when a separate application has not been filed under Sec. 26. In support of his contention, he was referred the decision in the case of Durga Pada Banerjee V/s. Smt Sushmita Banerjee, reported in 1991 (2) PLJR 215.
He further contends that payment of one-fifth of husbands net income to the wife is not a hard and fast rule and that depends on facts and circumstanced of the case. He urged that when the court below has considered the income of he husband-petitioner, the High Court will not interfere with the same conclusion lightly. Mr. Sinha has contended that the petitioner has already opted for voluntarily retirement scheme and as such, he will get entire salary from his employer and secondly his deposit in GPF must be held to be his total income. In support of his contention, he has relied on a decision in the case of
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