IN THE HIGH COURT OF JUDICATURE AT PATNA C.R. No.573 of 2008 KUNDAN KUMAR SINGH Versus NIRU KUMARI & ANR ----------- 2 22.9.2008 Heard Counsel for the petitioner. In the opinion of this Court, the direction in the impugned order for payment of an amount of Rs. 3,000/- per month by way of maintenance pendentelite and Rs. 6,000/- by way of consolidated cost of litigation under Section 24 of the Hindu Marriage Act (hereinafter referred to as the Act) does not suffer from any jurisdictional error nor in the facts and circumstances of this case can be held to be either excessive or illegal. The Court below has taken into account the materials brought on record by both the parties which if closely analyzed would go to show that the payment of such amount was within the means of the income of the petitioner. It is true that the petitioner has always taken a plea that whatever is the family property does not belong to him exclusively in as much as the house is in the name of his mother and the father has only his own separate income from his salary, and as such those income cannot be said to be the personal income of the petitioner. He further says that even the income from agricultural property of the family cannot be said to be 2 so such, out of which the petitioner can pay Rs. 3,000/- to his wife. A question however in all such cases would always arise that when a girl is married in a family of unemployed boy and the family projects that it has got sufficient income for not only maintaining the unemployed boy but even the girl being taken in marriage, can that family or that boy later on resile from the situation by taking a plea that now he has got no personal independent income as he is an unemployed and therefore even if he is seeking divorce, he is not required to pay any amount by way of interim maintenance under Section 24 of the Act. This court would find it very difficult to accept such proposition either on fact or in law because Section 24 of the Act does not envisage personal income of the husband to be deciding factor for grant of interim maintenance to the wife. Section 24 of the Act, reads as follows : - “Maintenance pendente lite and expenses of proceedings – Where in any proceeding under this Act it appears to the Court that either the wife or the husband, as the case may be, has no independent income sufficient for her or his support and the necessary expenses of the proceeding, it may, on the application of the wife or the husband, order the respondent to pay to the petitioner the expenses of the proceeding, and monthly during the proceeding such sum as, having regard to the petitioner’s own income and the income of the respondent, it may seem to the Court to be 3 reasonable. Provided that the application for the payment of the expenses of the proceeding and such monthly sum during the proceeding, shall, as far as possible, be disposed of within sixty days from the date of service of notice on the wife or the husband, as the case may be.” (underlining for emphasis) The expression “income of the Respondent” in contradistinction with the “petitioner’s own income” used in Section 24 of the Act would brook no two interpretation that while the person claiming maintenance has to establish that he or she has no personal independent income to support himself or herself during the pendency of the matrimonial case and meet its expenses, the quantum of payment of the person liable to pay such amount of interim maintenance has to be fixed on his any income whether it is his personal independent income or otherwise. Reference in this connection may be made to Apex Court in the case of Amarjit Kaur Vs. Harbhajan Singh reported in (2003) 10 S.C.C. 228 wherein it was held that relevant consideration for grant of maintenance pendente lite is that the spouse seeking maintenance should not have independent income sufficient for her/his support and once Court reaches its conclusion in that regard, it has to grant maintenance and only discretion left with the Court is with regard to quantum 4 of maintenance. In that view of the matter, it has to be always kept in mind that the status in which the girl walked in a family even though as a wife of an unemployed man, she in absence of her own independent income will have to be maintained from the income of the husband whether his own or otherwise during the pendency of the divorce suit. If on the day of marriage the family income of the husband was the only source of income of the husband, he cannot be allowed to take a plea of lack of his own income for payment of interim maintenance. The welfare of the wife cannot be sacrificed at a subsequent stage when the divorce suit has been filed by the husband and the family income of the husband must he utilized for supporting the wife by way of bearing the expenses so fixed by way payment of amount of interim maintenance. Judged in this background, it would be found from the discussions in the impugned order of the court below that there are unimpeachable documents to show that the petitioner has a double storied house in which there are three tenants namely a tuition center, cement shop and a Kirana shop. That apart, the Court has also made evaluation of other source of income on the basis of which it can be safely said that a sum of Rs. 3,000/- 5 per month is within the paying capacity of this petitioner and is not an excessive amount. That being so, this Court would not find any reason to interfere with the impugned order and accordingly, this civil revision application is hereby dismissed with a direction to the petitioner to pay the entire arrears and current amount within a period of three months from the date of receipt/production of a copy of this order. Rsh (Mihir Kumar Jha, J.)