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IN THE HIGH COURT OF ORISSA
R.C. Patnaik, J.
GOURI DAS - APPELLANT
Versus
PRADYUMNA KUMAR DAS - RESPONDENT
Civil Revision No. 518 of 1984
Decided On : 05-05-1986
HINDU MARRIAGE ACT, 1955 - SECTION 24 - PENDENTE LITE MAINTENANCE AND LITIGATION EXPENSES - WIFE'S RIGHT TO MAINTENANCE AND LITIGATION EXPENSES - FACTORS TO BE CONSIDERED - QUANTUM OF MAINTENANCE - DATE FROM WHICH MAINTENANCE IS PAYABLE.
Fact of the Case:
The wife filed an application under Section 24 of the Hindu Marriage Act, 1955, seeking pendente lite maintenance and litigation expenses in a proceeding initiated by the husband for divorce under Section 13 of the Act. The wife claimed that she had no independent income and was dependent on her father, who was a retired government servant with meager resources. The husband resisted the application, alleging that the wife's family had considerable income and that she had income from sewing.
Finding of the Court:
The court held that the wife was entitled to pendente lite maintenance and litigation expenses. It held that the burden was on the husband to establish that the wife had sufficient income to support herself and to carry on the litigation, and that he had failed to discharge this burden. The court also held that the wife was not required to file her written statement before her application for maintenance and expenses was considered.
Issues: 1. Whether the wife was entitled to pendente lite maintenance and litigation expenses. 2. From what point of time is maintenance payable?
Ratio Decidendi: 1. The court held that the wife was entitled to pendente lite maintenance and litigation expenses because she had no independent income and was dependent on her father, who had meager resources. The court also held that the burden was on the husband to establish that the wife had sufficient income to support herself and to carry on the litigation, and that he had failed to discharge this burden. 2. The court held that maintenance is payable from the date of service of summons on the respondent in the main proceeding. However, the court also held that the date from which maintenance is payable may be varied depending on the facts and circumstances of each case and the conduct of the parties.
Final Decision: The court allowed the wife's revision petition and set aside the order of the lower court rejecting her application for pendente lite maintenance and litigation expenses. The court directed the husband to pay the wife Rs. 300/- per month as pendente lite maintenance from the date of filing of the application, and Rs. 1,000/- towards litigation expenses. The court also directed the husband to pay the arrears of pendente lite maintenance till 30th April, 1986, within two months from the date of the order.
JUDGMENT :
R.C. Patnaik, J. - This is a revision by the wife against an order passed by the Subprnate Judge rejecing her application Med Section 24 of the Hindu Marriage Act 1955 (for short the Act') for pendente the maintennce and litigation expense in a proceding initiated, by the opposite graty husband for under.Section 13 of the Act.
2. After entering appearance in the main proceeding, the wife filed an application u/s 24 of the Act claiming Rs. 6,000/-; Rs. 1,000/-towards litigation expenses and Rs. 5,000/- towards pendente lite maintenance. She submitted that she was a deserted and helpless lady having no independent income for her support and for defending her in the proceeding. Though she had taken shelter under the roof of her father, the meagre resources of her father, who was a retired Government servant, were insufficient to maintain and support her. She alleged that her husband was working an Assistant Engineer and was getting salary of Rs. 2,000/- per month. Besides, he had income from agricultural lands, 7 acres in extent. The application was resisted by the husband. He averred that the father and the brother of the wife had considerable income. The wife had also considerable income from sewing. It was further alleged that the wife's family had a building at Cuttack, a portion whereof had been let out. He stated that after deductions, he received a sum of Rs. 1,000/- only and the income from the agricultural lands was meagre.
3. Upon a consideration of the aforesaid materials, the learned Subordinate Judge rejected the application holding that there was no material before him that "the wife had no independent income sufficient for her support and the necessary expense of the divorce proceeding." The learned Subordinate Judge was of the view that had there been some material before him, he would have allowed a sum of Rs. 200/- towards monthly maintenance to the wife.
4. Shri M. Patra, the learned counsel for the petitioner, has urged that the learned Subordinate Judge has erred in exercise of jurisdiction with an erroneous approach to the matter. Sri S. K Dey, the learned counsel for the opposite party, has endeavoured to support the judgment by contending that the family of the petitioner had considerable income and there was no material to show that the wife did not have adequate resource. When there was no material to show that the wife had no income, which was sufficient for her support and the necessary expenses of the proceeding, there was no infirmity in the impugned order.
5. Contentions have been raised at the Bar regarding the time of commencement of the proceeding u/s 24 of the Act and the point of time from which the maintenance is payable. The counsel have cited authorities in support of their contentions which will be noticed in due course. Before I notice the contentions raised, it is worthwhile to mention that the wife moved the Court for pendente lite maintenance and necessary expense for the proceeding alleging that she had no income to support her and to defend her in the proceeding. She had pleaded that unless litigation expense was paid to her, she was not in a position to file her written statement. No doubt, the initial onus is on the applicant. But, where the stand is that the applicant has no sufficient income to support him or her and to carry on the litigation, denial itself would shift the burden to the otherside who asserts that the applicant has sufficient income. It would be Inappropriate to call upon the applicant to establish the negative, i. e, he or she has no income. To discharge the burden, the otherside has to lead evidence to satisfy the Court that the applicant has independent income sufficient for his or her support and the necessary expense of the proceeding.
It was alleged by the husband that the wife's family had considerable assets or income. The income of the father or the brother of the applicant is irrelevant. The legislature has in its wisdom used the expressions 'Indepe
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