A wife is entitled to maintenance under Section 36 of the Special Marriage Act, despite having an independent income, if the disparity between her income and that of her husband is substantial.

Harish Tandon, J.

The point emerged in this revisional application is whether the wife is entitled to maintenance under Section 36 of the Special Marriage Act having independent source of income which is grossly in disparity with the income of the husband.

2. Both the parties are at variance on the language employed under Section 24 of the Hindu Marriage Act, 1955 and Section 36 of the Special Marriage Act. According to the learned Advocate for the petitioner, the expressions “maintenance” and “support” appeared in Section 36 of the Special Marriage Act are indicative of legislative intend that if the income of the wife is grossly despaired with the income of the husband, she is entitled to the maintenance from the husband to maintain and keep herself with the status of the husband in the society. On the other hand, the learned Advocate for the opposite party submits that the wife has an independent source of income, sufficient to support and maintain herself cannot be awarded maintenance under Section 36 of the said Act.

3. Admittedly the wife is working and earns at present Rs. 20,000/- per month from her salary. The husband who was associate Professor in a renowned educational institution was getting a sum of Rs. 58,000/-& odd per month and attained a superannuation on and from 1st April, 2011. The information received under Right to Information Act reveals that he would get a sum of Rs. 29,000/-& odd as pension and decided to commute 40% thereof. Apart from the same, he will get a sum of Rs. 18,78,492/- towards provident fund and Rs. 6 lakhs as gratuity. In addition thereto, he would receive a further sum of Rs. 9,32,510/- for leave salary. According to the husband, except the leave salary, he has not received any amount indicated in the said information as on this date.

4. There is a distinction between the language of Section 24 of the Hindu Marriage Act and Section 36 of the Special Marriage Act discernible therefrom which are quoted herein below:

“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 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 the reasonable.”

36. Alimony pendente lite.- Where in any proceeding under Chapter V or Chapter VI it appears to the District Court that the wife has no independent income sufficient for her support and the necessary expenses of the proceeding, it may, on the application of the wife, order the husband to pay to her the expenses of the proceeding, and weekly or monthly during the proceeding such sum as, having regard to the husband’s income, it may seem to the Court to be reasonable:”

5. Section 24 of the Hindu Marriage Act recognizes the right of both the wife and the husband having no independent income sufficient for her or his support and the necessary expenses of the proceeding. Section 36 of the Special Marriage Act entitles the wife having no independent income sufficient for her support and necessary expenses to be paid such amount which the court thinks reasonable. The distinction which could be deciphered therefrom is that in case of Section 24 of the Hindu Marriage Act, both the wife and the husband can claim the maintenance against each other but Section 36 of the Special Marriage Act restricts the claim to the wife. Section 24 of the Hindu Marriage Act has two part, the first relates to the entitlement of both the husband or the wife having no independent income sufficient for her support and necessary expenses of the proceeding to make an application to the Court; the later part is relatable to the