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1999 Supreme(Guj) 755

Gujarat High Court
Judgename :S.K.Keshote
MINESH RAJNIKANT DALAL - Appellant
Versus
AVANI MINESH DALAL - Respondent
Civil Revision 1469 of 1996
Decided On : 12/30/1999

Advocates Appeared: N.A.PANDYA, Y.F.MEHTA

Headnote:Civil Revision Application No. 1469 of 1996<186-Decided -on 30th December, 1999

       Hindu Marriage Act, 1955 (Central Act 25 of 1955)-Maintenance --Interim alimony-Interim alimony Rs. 2000/- P.M. allowed to -wife w.e.f. 28.12.1995-Revision petition-Transfer application -from Extra Civil Judge Vadodara to city Civil Court Ahmedabad- -Enhancement of interim maintenance-Transfer of petition-Case -order to be transferred to Ahemdabad

       The revision application of the wife deserves to be allowed. -Accordingly it is allowed and the husband is directed to pay to the -wife, interim maintenance at the rate of Rs. 2,500/= with effect from -28th December, 1995.

       [Para 13]

       The learned counsel for the respondent- husband has failed -to show how any prejudice or irreparable injury will be caused to -the husband in case the matter is transferred from Vadodara to Ahmedabad. -Vadodara is not at a far off distance from Ahmedabad and to attend -the Court at Ahmedabad it will not cause any inconvenience to the -husband more so when he has to attend one case at Ahmedabad. In fact, -by transfer of this case to Ahmedabad, the husband will be relieved -of other additional visit to Ahmedabad.

       

S. K. KESHOTE, J.

( 1 ) ALL these three arise from Hindu Marriage Petition No. 280 of 1995 in the court of 5th Extra Assistant Judge, Vadodara, and the same are being taken up for hearing together and are being disposed of by this common order.

( 2 ) CIVIL Revision Application No. 1469 of 1996 is directed by the husband against the order of the court below, ex. 8 dated 21/08/1996, under which the court has directed the petitioner-husband to pay the respondent-wife, interim alimony at the rate of Rs. 2,000/= p. m. from the date of filing of the petition, i. e. 28. 12. 95 till the final disposal of the main petition. The court below further ordered the petitioner-husband to pay Rs. 5,000/= to the respondent-wife towards expenses for contesting the petition.

( 3 ) CIVIL Revision Application No. 1631 of 1996 is filed by wife against this very order for enhancement of the amount of interim alimony as well as the amount of litigation expenses.

( 4 ) IN Misc. Civil Application No. 118 of 1999, the wife is praying for transfer of Hindu Marriage Petition No. 280 of 1995 from the Court of 5th Extra Assistant Judge, Vadodara, to City Civil Court, Ahmedabad, and further prayer has been made for hearing and deciding this petition along with Hindu Marriage Petition No. 381 of 1995 pending in the City Civil Court at Ahmedabad.

( 5 ) MR. N. A. PANDYA, learned counsel for the husband contended that the amount of interim alimony granted to the wife under the impugned order is towards higher side. It is contended that the husband has to maintain his parents and his son born out of the wed-lock first marriage. It is contended that the take home salary of husband is a meagre sum and in case out of this, Rs. 2000/= are to be paid to the wife, he will not have any money with him to maintain his parents and his son as well as himself. Lastly, it is contended that the wife has left the matrimonial home herself and for this conduct, she may not be granted any maintenance. He lastly submitted that the learned trial court should not have awarded even a pie towards litigation expenses as the petitioner is eligible for free legal aid.

( 6 ) MR. Y. F. MEHTA, learned counsel for the wife submitted that the husband is employed in I. P. C. L. at Vadodara and as per his pay-slip, his gross income for the month of July 1996 is Rs. 10,333=0. The learned trial court has committed illegality in deducting therefrom Rs. 1699=72 as the amount of overtime wages as well as Rs. 884/= deducted in the pay slip towards income tax. In his submission the gross income has to be taken into consideration for determining what sum has to be paid to the wife towards interim alimony. In his submission the income tax amount could not be deducted for the reason that it would have been a voluntary deduction to lower down that income so that the wife may not get adequate amount of maintenance. The husband has not produced on record of the court below as well as in these revision applications to show what income tax is paid for the assessment year during which month of July 1996 falls. It is further submitted that the learned trial court has not awarded any maintenance to daughter Aditi. The wife has to maintain daughter also and this amount of Rs. 2000/= as awarded towards interim alimony is a meagre amount. For litigation expenses, the learned counsel for the wife submits that litigation highly costs litigants and more so when there are different proceedings. Advocates are to be paid fees as well as the wife has to incur other expenses of litigation. Looking to the nature of litigation what she is claiming, i. e. Rs. 25,000/= by way of costs, is a reasonable amount which should have been awarded. Replying to the contention raised by learned counsel for the husband that the wife is entitled for free legal aid, Mr. Mehta submits that legal services authority only provides advocate and not other amount of expenses. Otherwise also, Mr. Mehta submits, under Section 24 of the Hindu Marriage A
























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