IN THE HIGH COURT OF JUDICATURE AT PATNA C.R. No.132 of 2008 ANAMIKA BANKA Versus NAWAL BANKA @ NAWAL KISHOR BANKA ----------- 3 9.9.2008 Heard learned counsel for the wife-petitioner as also learned counsel for the husband-opposite party. In a proceeding under Section 24 of the Hindu Marriage Act, the wife-petitioner has been refused any amount of maintenance pendentelite only on the ground that she has sufficient income of her own to support herself. Counsel for the petitioner has referred to the pleadings on record to submit that there was nothing which could have established the own income of the wife-petitioner and at least the court below has not referred to any evidence in this regard. Counsel for the husband-opposite-party however, has annexed certain documents with the counter affidavit to show that the wife-petitioner was having her own income and in this context, certain document including income tax return of the wife-petitioner have been referred to and relied by him. It has to be noted that in a proceeding under Section 24 of the Hindu Marriage Act, whenever the plea of ad-interim maintenance is raised by the wife, the first and foremost thing to be seen is how much would be the 2 amount really required for the lady to support herself. The next question would be that how much is her own independent income and whether by such independent income of the wife, she can support herself? The concept of supporting a wife would also depend on varying circumstances. The wife is definitely entitled to maintain her status and standard in the same manner in which she was living prior to filing of the matrimonial case by the husband. Thus, it is not that if the husband- opposite party was a millionaire, an accomplished and established businessman, his wife-petitioner would be disentitled for maintenance, if she had some income of her own. Reference in this regard may be made to the following passage of the judgment of the Apex Court in the case of Jasbir Kaur Sahgal V. District Judge, Dehradun and Others, II (1997) DMC 338(SC)=(1997) 7 SCC 7 wherein it has been observed that, “no set formula can be laid for fixing the amount of maintenance. It has, in the very nature of things, to depend on the facts and circumstances of each case. Some scope for leverage can, however, be always there. The Court has to consider the status of the parties, their respective needs, the capacity of the husband to pay having regard to his reasonable expenses for his own maintenance and of those he is obliged under the law and statutory but involuntary payments or 3 deductions. The amount of maintenance fixed for the wife should be such as she can live in reasonable comfort considering her status and the mode of life she was used to when she lived with her husband and also that she does not feel handicapped in the prosecution of her case. At the same time, the amount so fixed cannot be excessive or extortionate.” The aforesaid aspects of the matter as indicated in the aforesaid case of Jasbir Kaur (supra) by the Apex Court had to be also gone into by the court below. As a matter of fact such serious consideration in the impugned order is altogether lacking and the court below has not even considered the documents referred to and relied by the counsel for the husband-opposite party as with regard to own income of the wife-petitioner from the point of view as observed by the Apex Court in the case of Jasbir Kaur (supra). It has to be noted that when the wife-petitioner had set out her case in her application under Section 24 of the Hindu Marriage Act seeking ad-interim maintenance, she had definitely indicated of being habituated and accustomed to certain standard of living and status which she was enjoying prior to the filing of the matrimonial case. Those facts were not even controverted by the husband-opposite party in his written statement to the said application. In 4 fact, the plea of the husband-opposite party of the wife- petitioner having sufficient means was also raised in a vague manner by referring to or relying certain documents. The court below also did not examine the issue with all its pros and cons and had merely proceeded on an assumption that the moment there was something to show that the wife-petitioner had her own income it was sufficient for her to be denied any amount of maintenance by the husband-opposite party. Such is not the concept of Section 24 of the Hindu Marriage Act. As noted above, the Court has to strike a balance between the standard of life of both the husband and the wife and has to ensure that such standard of life for the wife is secured during the pendency of the matrimonial case. This having been not done, this Court cannot approve the reasonings in the impugned order. The counsel for the husband-opposite party had insisted that the opposite party has a huge liability and therefore, when he has to maintain not only himself but also his mother, who is aged, ill and infirm, he should not be saddled for payment of any amount of ad-interim maintenance to his wife who definitely has her own source of income. This part of submission of the counsel for the husband-opposite party has been seriously contested and controverted by the counsel for the wife- 5 petitioner who has submitted that neither this plea was raised before the court below nor was taken into account for passing the impugned order. He has in this context has submitted that there is a huge property in the name of the mother of the opposite party from which she is deriving her own independent income and is thus not at all dependent on the income of the opposite party. Since this aspect also has not been considered by the court below, the parties must be given a chance to adduce evidence on this aspect of the matter and if the court finds that the mother of the opposite party has her independent income from the properties standing in her name or even otherwise, it will not take into account the said factor of maintenance of mother by the opposite party as a circumstance to deny the amount of ad- interim maintenance to the wife-petitioner. The court below in fact would now once again proceed to re-determine the issue of payment of ad- interim maintenance to the wife-petitioner by allowing both the parties to lead evidence both on the issue of the standard and status of life enjoyed by the petitioner prior to the matrimonial life, her actual requirement of amount of maintenance and her own income that she has or may have from any identified source. If upon valuation of such materials, it is found that the wife- 6 petitioner is not in a position to maintain herself with the same status and standard of life that she was enjoying prior to the filing of the matrimonial case, the court below will proceed to fix the amount of ad-interim maintenance. In the event, it is found that the wife- petitioner has sufficient income to support herself, it may choose to decline any amount to her by way of ad interim maintenance. It is, however made clear that the wife-petitioner is said to be in her middle age around 45- 50 years and therefore, she must have that much of sufficient income from which she can afford to live separately in a house with the same dignity and standard of life in which the husband-opposite party, an established businessman, is enjoying. If need be, the court below for this purpose may call for any information from any authority including income-tax authorities to determine the income of the wife-petitioner and the husband-opposite party. As all this exercise by the court below would consume some time and the wife-petitioner through her counsel has been able to show that her income as shown in the income-tax return would barely come to Rs. 10,000/- per month, this Court would direct the husband to pay a sum of Rs. 10,000/- per month keeping in view that the wife-petitioner till filing of the 7 matrimonial case was enjoying an elevated status and a high standard of life as a wife of an accomplished businessman having a number of industries in his name. Such payment however, would be only from the date of this order and would continue till passing of the fresh order which must be passed within a period of six months from the date of receipt/production of a copy of this order. That being so, this Court would set aside the impugned order and remit the matter back directing the court below to re-consider the whole issue afresh in the light of the observations and directions given above. Rsh (Mihir Kumar Jha, J.)