1985 Supreme(Ker) 134

Judges : U.L.BHAT
THANKARAJ - Appellant
Versus
PUSHPA ROSE - Respondent
Case No : C.R.P. No. 176 of 1985
Decided On : 06/07/1985
Advocates Appeared :
Siby Mathew; M. Mathew; A.A. Mohammed Nazir; For Petitioner P. Sukumaran Nair; For Respondent

In determining alimony pendente lite, the court will consider the means of both parties, the needs of the wife, and the husband's capacity and ability to provide maintenance. The net income for alimony purposes should only include expenses over which the husband has no control, such as direct taxes, and not optional deductions like voluntary savings schemes or loan repayments.

Headnote:

Alimony - Indian Divorce Act - S.23, S.36 - Judicial separation - Alimony pendente lite - S.36 of the Act deals with alimony pendente lite. It says that in any suit under the Act whether it be instituted by a husband or a wife and whether or not she has obtained an order of protection, the wife may present a petition, for alimony pending the suit. Such a petition is to be served on the husband. The Court, on being satisfied of the truth of the statements therein contained, may make such order on the husband for payment to the wife of alimony pending the suit as may deem fit. Alimony shall in no case exceed one-fifth of the husband's average net income for the three years next preceding the date of the order. Grant of alimony pendente lite is within the judicial discretion of the matrimonial court. Question of ordering such payment depends on consideration of all the relevant circumstances including the status and mode of life of the parties, their means and the surrounding circumstances. Where it is shown that the wife has no means at all or that her income is not sufficient for her sustenance, it is open to the court to award alimony pendente lite. Ordinarily, where it is shown that the wife has no means of her own or that her means are inadequate to meet her needs and where the husband has the capacity and ability to provide maintenance, the matrimonial court will pass an order in favour of the wife. In fixing the quantum of maintenance, the court will have to give due weight to all the facts and circumstances, the means of both parties or the lack of it, past life of the parties and their families, their mode of living and the needs of the wife. The fact that she is taking care of the child or children and is actually responsible for them is also a relevant factor to be taken note of. Net income would normally mean total income derived less the cost of collection and other compulsory payments such as income tax etc. It does not mean net income after giving deduction for all the expenses incurred by the husband. Expenses which are to be deducted must have some relation or connection with the source of income. In the case of a salaried employee, he may be legally compelled to pay tax or contribution to Provident Fund etc. In such a case, there is a legal obligation to make this payment in relation to the income he derives from the job which secures him the salary. Naturally, deductions have to be given for these outgoings in assessing the net income. At the same time, it is open to a salaried employee to contribute more to the Provident Fund than what he is required to do. That is purely a matter of option for him. He may contribute more by way of saving. He might have borrowed moneys for his own purposes and may have to make repayments in lump or instalments. It is only for the purpose of easy collection that arrangements are made for deduction at the source. They cannot be equated with compulsory deductions like Income Tax or contribution to compulsory Provident Fund. They must be treated as voluntary payments made in discharge of voluntary loans. They cannot be treated as deductions over which he has no control of any kind. Only such deductions which can be taken note of. Otherwise, it would be easy f or any husband to opt to allow more deductions than warranted and thereby defeat the claim of his wife. In arriving at the disposable income of the husband deduction can be given only to such items of expenses over which he has no control of any kind such as direct taxes like Income tax etc. No deduction can be given in respect of expenses for running a household, house rent, fuel or water charges, salaries of domestic servants, insurance premium, voluntary savings schemes such as Provident Fund or purchase of National Savings Certificates etc.

Fact of the Case:

The respondent, the wife of the petitioner, filed for judicial separation under S.23 of the Indian Divorce Act and sought alimony pendente lite. The husband opposed the application but the court allowed the alimony at the rate of Rs.140/-per month. The husband challenged this order in revision, claiming that the court erred in estimating his net income from salary.

Finding of the Court:

The court found that the wife had no means to maintain herself, and the husband had a net income of Rs. 708/- per month. Considering the circumstances, including the needs of the wife and the child, the court fixed the alimony at Rs. 140/- per month, slightly less than the ceiling of twenty percent fixed under S.36 of the Act.

Issues: The main issue was the estimation of the husband's net income for the purpose of determining alimony pendente lite.

Ratio Decidendi: The court held that in arriving at the disposable income of the husband, only expenses over which he has no control, such as direct taxes like Income tax, can be deducted. Optional deductions, such as voluntary savings schemes or loan repayments, cannot be considered in assessing the net income for alimony purposes.

Final Decision: The court dismissed the revision petition, upholding the alimony amount of Rs. 140/- per month, as it was found to be within the husband's capacity and ability to provide maintenance.