The duty of the court to ensure maintenance for a spouse and the importance of ascertaining the true financial status of the parties to determine maintenance under section 24 of the Hindu Marriage Act.

J.R. Midha, J.

The petitioner has challenged the order dated 26th November, 2010 whereby her application for maintenance u/s 24 of the Hindu Marriage Act was dismissed by the learned Trial Court.

2. The petitioner claimed maintenance and litigation expenses from her husband on the ground that she was unable to maintain herself and her two children aged 13 and 16 years. The petitioner averred that she was not gainfully employed and was receiving interest income of about Rs. 8,000 to Rs. 10,000 per month from the investments whereas the monthly expenses of the children were to the tune of Rs. 25,000 per month. The petitioner further averred that the respondent was running the business of transport in the name of Bakshi Transport Service and his income was more than Rs. 2,00,000 to Rs. 3,00,000 per month.

3. The respondent contested the above application before the learned Trial Court on the ground that the respondent was unemployed and had no income. The respondent averred that he was living like a pauper and had no money even for two proper meals a day. He also stated that he had no shelter. The respondent also alleged that the petitioner's annual income was Rs. 3,00,000 per month from three sources, namely Rs. 1,00,000 to Rs. 2,00,000 per month from business, Rs. 60,000 per month from salary and Rs. 20,000 per month from interest.

4. The learned Trial Court believed the respondent and held that there was no material record to show that the respondent had any income and, therefore, the petitioner's application was dismissed.

5. In Sh. Bharat Hegde Vs. Smt. Saroj Hegde, (2007) 140 DLT 16 this Court laid down the following principles for fixing the maintenance u/s 24 of the Hindu Marriage Act:

4. Right to maintenance is an incident of the status from an estate of matrimony. Interim maintenance has an element of alimony, which expression in its strict sense means allowance due to wife from husband on separation. It has its basis in social conditions in United Kingdoms under which a married woman was economically dependent and almost in a position of tutelage to the husband and was intended to secure justice to her.

5. Section 24 of the Hindu Marriage Act goes a step further inasmuch as it permits maintenance to be claimed by the husband even against the wife.

6. While considering a claim for interim maintenance, the Court has to keep in mind the status of the parties, reasonable wants of the applicant, the income and property of the applicant. Conversely, requirements of the non-applicant, the income and property of the non applicant and additionally the other family members to be maintained by the non-applicant have to be taken into all. Whilst it is important to insure that the maintenance awarded to the applicant is sufficient to enable the applicant to live in somewhat the same degree of comfort as in the matrimonial home, but it should not be so exorbitant that the non applicant is unable to pay.

7. Maintenance awarded cannot be punitive. It should aid the applicant to live in a similar life style she/he enjoyed in the matrimonial home. It should not expose the non applicant to unjust contempt or other coercive proceedings. On the other hand, maintenance should not be so low so as to make the order meaningless.

8. Unfortunately, in India, parties do not truthfully reveal their income. For self-employed persons or persons employed in the unorganized sector, truthful income never surfaces. Tax avoidance is the norm. Tax compliance is the exception in this country. Therefore, in determining interim maintenance, there cannot be mathematical exactitude. The Court has to take a general view. From the various judicial precedents, the under noted 11 factors can be culled out, which are to be taken into consideration while deciding an application u/s 24 of the Hindu Marriage Act. The same are:

1. Status of the parties.

2. Reasonable wants of the claimant.

3. The independent income and property of the claimant.

4. The number of persons, th