No insistence by court for filing written statement.

This revision arises from a divorce proceeding initiated by the respondent herein as H.M.O.P. No.478 of 1994, on the file of Subordinate Judge, Krishnagiri. When the wife received notice of the divorce petition, she filed an application under Sec.24 of the Hindu Marriage Act, seeking interim alimony and litigation expenses. According to her, she has no means to support herself and she is completely depending on others for her maintenance. It is further averred that her husband is getting more than Rs.5,500 as monthly income. So, according to status, she requires at least Rs. 1,000 per month as maintenance. She also claimed Rs.5.000 as litigation expenses.

2. Respondent herein filed a detailed counter. According to him, the wife has got other means to support herself and, therefore, the petition is not maintainable. He also said that the monthly income alleged in the petition is not correct, though he admitted that he is an employee as alleged by the wife. He said that he is not getting Rs.5,500 as monthly income but only Rs.3,000. He said that his aged mother and other relations are depending on him for their subsistence and therefore, the petitioner’s claim is exaggreated. He prayed for dismissal of the petition.

3. By the impugned order, court below awarded Rs.750 as monthly maintenance, effective from the date of the order and also Rs.2,000 towards litigation expenses.

4. Not satisfied with the order, wife has filed this petition challenging the correctness of the order. According to her, she is entitled to claim maintenance from the date of petition and the quantum awarded is also too low. The litigation expenses awarded is also meagre and it will not be sufficient to meet even the travelling expenses from her residence to court very often.

5. When the revision came for admission, I ordered notice of motion. After receipt of notice, respondent has also entered appearance. The entire matter was heard.

6. The only question that has to be considered is, whether the order of the court below requires interference.

7. There is a finding by the court below that the wife is not in a position to maintain herself and she has no independent income of her own. Challenging the same, the husband has not filed any revision, nor has he questioned the same though in the counter statement, he takes a stand that the wife has got income of her own. In view of the said finding, her entitlement to get interim maintenance cannot be doubted. The object of Sec.24 of the Hindu Marrige Act is to enable the husband or wife, as the case may be, who has no independent source of income, for his or her support and the necessary expenses of proceeding, to apply under the Act and obtain interim maintenance pendente lite. The intention is that the person should not suffer due to poverty and submit to the demand made in court.

8. He/she must be capable of getting independent legal advance. The provisions of the said section are mandatory and the court has to assess reasonable amount to be paid to the opposite party, who has no independent source of income. It is also settled law that the court cannot insist on the opposite party to file written statement if his/her financial position is not good. Regarding the quantum payable, the petitioner in an application under Sec.24 of the Hindu Marriage Act cannot insist that a particular share of the income should be given. In page 343 of Mayne’s Hindu Law and Usage, 14th Edition (1996), the learned author says:

"The payment of maintenance pendente lite and litigation expenses can be decided on the basis of affidavits of parties without recording evidence. Generally, one-fifth of the net income of the husband should be awarded depending upon other circumstances of the case, a working rule adopted by the courts under the Indian Divorce Act. But this is not an inflexible rule, the main consideration being that the maintenance must be reasonable. There is no hard and fast rule for allowing one-fifth or