IN THE HIGH COURT OF JUDICATURE AT PATNA C.R. No.2393 of 2007 AKHILESH KUMAR SINGH @ AKHILESH SINGH, son of Shri Ganesh Singh, resident of village Sawana, P.O. Gigina, P.S. Itarhi, District Buxar … Plaintiff-petitioner Versus SMT.PINKI SINGH, W/o Shri Akhilesh Kumar Singh, D/o Jagdamba Singh, resident of village Arak Paschim Tola, P.O. Arak, P.S. Krishna Brahm, District Buxar … O.P.- O.P. For the Petitioner : Mr. Syed Wazir Ali, Advocate with Mr. Raghunath Singh, Advocate For the Opposite Party : Mr. Jai Prakash Singh, Advocate P R E S E N T HON'BLE JUSTICE MIHIR KUMAR JHA ----------- 5. Mihir Kr. Jha, J. Heard counsel for the petitioner and the counsel for the opposite party. This civil revision application is directed against the order dated 28.11.2007 passed by the Principal Judge (Family Court), Buxar in Matrimonial Case No. 87/2006 directing payment of maintenance of Rs. 3,000/- per month to the opposite party alongwith a consolidated cost of litigation of Rs. 5,000/-. Counsel for the petitioner submits that the impugned order is wholly unsustainable only on the ground that the court below has not conducted any enquiry under section 24 of the Act and has proceeded to decide the matter on the basis of the application filed by the wife opposite party under section 24 of the Act and its rejoinder filed by the petitioner, husband. Counsel for the petitioner has further assailed 2 the impugned order that the husband opposite party has no independent income and is solely dependent on his father and yet the court below has directed for payment of maintenance by the petitioner would ascertaining his income. Counsel thus contends that in absence of any finding on the actual income of the petitioner the impugned order cannot be sustained. In this context reliance has been placed by the learned counsel for the petitioner on the judgment of this Court in the case of Manoj Kumar Thakur vs. Shibani Devi, reported in 1991(2) PLJR 311 and in the case of Pankaj Kumar Singh vs. Nisha Mishra & ors., reported in 2000(1) PLJR 35. Counsel for the opposite party, on the other hand, submits that in an issue relating to grant of interim maintenance in terms of section 24 of the Act there would be no need for holding a detailed enquiry in absence of any determinable issue raised by the petitioner, the husband. It has been further submitted by him that both sides had also filed their written arguments followed by their oral submissions in support of the facts mentioned in their respective pleadings and as such, if the court below has analyzed them for holding the petitioner liable to pay the amount of adinterim maintenance in terms of section 24 3 of the Act, no irregularity can be said to have been committed by the court below so as to be interfered by this Court in exercise of power under section 115 C.P.C. From the pleadings on record and the perusal of the impugned order it would transpire that the wife opposite party on 27.6.2007 had filed an application for grant of adinterim maintenance in terms of section 24 of the Act on the ground that ever since her marriage on 8.5.2001 she was subjected to torture and harassment which led to institution of Buxar Town P.S.Case No. 267/2001. In the said petition it was also stated that the petitioner husband was member of the joint family and his father apart from having ancestral agricultural property was also a retired Assistant Central Intelligence Officer, Grade I, Central Intelligence Bureau, Home Ministry, Government of India, and that the income of the petitioner from his house in Buxar town and the agricultural land in the village was Rs. 30,000/- per month approximately. On the said application of the wife opposite party, the petitioner husband had filed the rejoinder on 19.7.2007 wherein it was stated that the divorce case was filed by him out of compulsion when he and his family members were unnecessarily made 4 accused in a criminal case on altogether false allegations by the wife opposite party. It had further been stated by the petitioner in such rejoinder that he had been deserted even by his family members including his parents on account of such criminal case lodged against them by his wife, the opposite party and that he had been also separated in mess and business by a decree of permanent Lok Adalat wherein he has got only 1 bigha 5 katha of land in the ancestral property and one room in his village home. The petitioner had also taken a plea that in the house at Buxar he had no claim or share therein because the same had been constructed from the personal income of his father and the said house is his self acquired property in which the petitioner cannot have any share much less income at least in the life time of his father. The petitioner had further denied to have an income of Rs. 30,000/- per month as alleged by his wife and in fact took a plea that the father of his wife, the opposite party, was employed in Arrah Milk Dairy having a salary of more than Rs. 5,000/- per month and also had income from 10 bighas of agricultural land. In nut-shell the petitioner had denied the case of wife opposite party that she had no personal income to support herself. 5 This Court in course of hearing had passed an order on 4.9.2008 which being relevant for the purpose of this case is quoted hereinbelow: “ While the case has been argued at length, neither of the parties are in a position to inform this Court as to what happened when the opposite party, wife had filed her application on 27.6.2007 under section 24 of the Hindu Marriage Act reply thereof was filed by the petitioner on the next day on 19.7.2007. The impugned order came to be passed on 28.11.2007 and therefore, if the court below has considered certain documents as is apparent from the impugned order, how did those documents come into record. It would, therefore, necessary for this Court to know as to what Court proceedings were conducted in between 27.6.2007 to 28.11.2007. Pursuant to the aforementioned direction of this Court the counsel for the opposite party has produced the copy of entire order sheet beginning from 27.6.2007 to 7.11.2007 and a bare perusal of the same would go to show that though in between 27.6.2007 to the date of the impugned order 14 dates were given but on all such dates after filing of the rejoinder by the petitioner no effort was made to hold enquiry by 6 the court below. On all such dates a mechanical order was only passed adjourning hearing on the application under section 24 of the Act for hearing and in fact after 10 dates on 1.10.2007 the petitioner had filed an application on 1.10.2007 for summoning the records of Case No. 12/2006 from permanent Lok Adalat, Buxar. It appears that on 5.10.2007 when the said records were received the hearing was conducted only on one date i.e. 11.10.2007 whereafter on the next date i.e. 7.11.2007 written submissions were filed on behalf of the wife opposite party which was followed by the impugned order passed on 28.11.2007. Strictly speaking the procedure adopted by the court below in deciding the issue of grant of adinterim maintenance cannot be approved, inasmuch as mere filing of an application and its rejoinder cannot be the scope of enquiry under section 24 of the Act. Section 24 though does not speak of an enquiry but then it casts obligation on the court to determine two facts, namely, (a) whether the wife or husband claiming maintenance has any independent income sufficient for her or his support and also for meeting the necessary expenses of the petitioner, (b) determination of such sum which would seem to be reasonable to be paid by way of interim maintenance having regard to own income of person praying for grant of adinterim maintenance and income of the respondent from whom such 7 maintenance is given. In the opinion of this Court neither of the two questions can be decided merely on the basis of an application filed under section 24 or its rejoinder unless the facts on the aforesaid two issues are totally admitted by the respondent in his rejoinder. Therefore, whenever the question of grant of maintenance in terms of section 24 would arise, the court will have to hold an enquiry as to whether the wife claiming such maintenance has her own independent income sufficient to support herself and to also meet the necessary expenses of the proceeding. For this purpose at least the wife will have to be examined and cross-examined in course of such enquiry before the court holds that she has no independent income sufficient for her support and meeting necessary expenses of the matrimonial proceedings. Similarly the court for the purpose of determining as to what amount would be reasonable for its being ordered to be paid by the respondent, from whom such amount of maintenance is claimed will be required, to hold an enquiry for recording a finding on the issue of sufficiency of independent income of the wife claiming such maintenance and avibility of resources of income of the respondent. For this 8 purpose at least the examination and cross- examination of the respondent husband would be absolutely necessary in course of such enquiry. This Court however should not be understood to have laid down a law that the court in seisin of the proceedings under section 24 of the Act has to hold a mini trial for determining the amount of compensation as legislature itself has put restriction of a period of 60 days for deciding such matter. None-the-less the parties, the wife and the husband, would be required to file an affidavit in support of their case and if necessary also produce documentary evidence for its being considered followed by an opportunity of cross-examination to both the parties and that of any witness relied on his/her affidavit or affidavits of any other person. The documents filed by the parties of course can be taken into consideration without there being formally marked as exhibit and complying the provision of Evidence Act, but then some sort of enquiry inspiring confidence in the judicial proceedings must be held so as to eliminate possibility of arbitrariness or guess work in either allowing or rejecting the prayer of maintenance. That seems to be scope of section 24 of the Act. Judged in this background when this 9 Court would find that no proceeding was conducted by the court below save and except mechanical adjournment of hearing of the application of maintenance filed by the wife opposite party for ten continuous dates and only summoning the record of Lok Adalat on the prayer of the petitioner, on 11th and 12th date, the unavoidable conclusion would be that no enquiry was conducted by the court below before passing of the impugned order. This Court, however, must notice that while no attempt was made even by the wife opposite party to support her case by leading any evidence that she had no independent source of income and that her husband, the petitioner, had an income of Rs. 30,000/- per month, the husband petitioner also did not choose to adduce any evidence save and except for summoning the records of permanent Lok Adalat pertaining to some mutual partition between him and his father. As a matter of fact records of such partition case before the Lok Adalat could have hardly inspired any confidence because litigation at the behest of the wife opposite party was already going on since 2001 in form of criminal case and therefore, a collusive order of mutual partition between the son, the petitioner and his father of 10 the Lok Adalat of the year 2006 would have hardly answered the main question to be determined for adjudicating the aforementioned two issues necessary to be decided for passing an order under section 24 of the Act. This Court, however, must notice the submission of the counsel for the petitioner as with regard to there being no own independent income of the petitioner so as to become liable to pay the amount of maintenance to his dependent wife who had claimed to have no income to support herself and meet the expenditure of litigation thrust upon her by her husband in form of divorce case. Section 24 of the Act in fact does not require that the husband also must have an independent own income so as to be fastened the liability of payment of maintenance. The legislature, in the opinion of this Court, has very carefully made provision under section 24 by classifying the income of a person claiming maintenance to be restricted to „independent income‟ or 'own income' whereas income of the person required to pay such maintenance has not been restricted by the word „independent‟ or 'own'. This would become very clear if the scheme under section 24 of the Act is examined, reading as follows: “ 24. Maintenance, pendente lite and 11 expenses of proceedings:- Where in any proceeding under this Act it appears to the Court that either the wife of 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 the petitioner the expenses of 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 reasonable.” (underlining for emphasis) From the aforementioned provisions of section 24, therefore, it would be clear that the wife, in case she is claiming maintenance, has to only prove that she has got no independent income so as to support herself and/or meet the cost of litigation, the onus on the husband called upon to pay the amount of maintenance and cost of litigation is still he or her who has to prove that he has no income at all to discharge his onerous liability. In other words the touchstone under Section 24 of the Act would be the income of the respondent, meaning thereby the husband and such income of the husband can be either of his own or from the family resources or from any other sources. Thus, merely because the husband, 12 as in this case the petitioner, would claim that he is not employed or belongs to a salaried class of person or his income is derived from the joint family property, he cannot be absolved of his liability to maintain his wife during the pendency of a divorce case. What would be the amount of such maintenance can however be definitely ascertained in the light of the evidence on record but to say that the court must determine as to whether the husband has his own independent income or the income that he may derive from the joint family property or from any other sources, would amount to adding a precondition to the expression "income of the respondent" which the legislature has not provided under Section 24 of the Act. This aspect of the matter as with regard to scope of section 24 of the Act has to be understood in the context that the same has been enacted to provide relief by way of interim maintenance and the litigation expenses to a spouse only to maintain herself during the pendency of the proceeding thurst on her by her spouse. Thus, the moment a spouse unable to maintain himself or herself during the pendency of a matrimonial proceeding would file an application, all that she or he will be required to prove is that there is no such 13 independent income for her or his support whereafter the court will be required to determine as to what amount would be sufficient for the maintenance of such person which has to be paid by the other spouse from his/her income. It is in this background that this Court must reject the submission of the learned counsel for the petitioner that the petitioner will not be liable to pay any amount towards maintenance of his wife as his income from the joint family property would not form part of his income. The petitioner, when he got married to the opposite party and was maintaining her till the filing of application seeking divorce in the pending matrimonial case had only those sources of joint family property and therefore, if he has brought a divorce suit and has displaced his wife, the opposite party, during the pendency of such divorce suit, he cannot be heard to say that he has no income to support his wife who has now been also subjected to meeting additional expenditure of divorce suit thrust upon her by the petitioner. Having thus held that the petitioner is still liable to pay the amount of maintenance under section 24 of the Act this Court would find it impossible to quantify the said amount in 14 absence of any evidence on record. As noted above, while the court below has rightly rejected the records of collusive partition order of permanent Lok Adalat, it had still to proceed ahead to determine as to what was the actual income of the petitioner from the agricultural land and/or the house. The court could have proceeded that from the schedule of the land of that partition case before the permanent Lok Adalat the petitioner at least had his half of the interest in the entire ancestral land because the mother in the life time of his husband, the father of the petitioner would not be entitled for any separate share of 1/3rd as has been shown to be in the order of the permanent Lok Adalat collusively arranged between the petitioner and his parents. Thus, treating that the petitioner had half of the interest in those land and that the petitioner had no liability towards his parents as they were well settled having pension from the Central Government, the court below would have proceeded to make an enquiry as to the potential of the income of the petitioner from the agricultural resources. Similarly, the court could have also proceeded to determine the worth of half of the share of the petitioner the only son, in the house built by his father in Buxar 15 town for the purposes of ascertaining the income of the petitioner, as the plea of the petitioner in his rejoinder that he had no share in the self acquired property of his father, had to be examined in the background that the wife opposite party was staying in the same house and was being maintained by the joint family till her being forced out of the house. All these, therefore, were capable of being examined for the purposes of ascertaining the income of the petitioner before the court below could have hastened to pass the order of maintenance. Thus in absence of any specific finding on the income of the petitioner a mere guess work as made in the impugned order was not sufficient and that would make the order wholly unsustainable either in fact or in law. The reliance placed by the counsel for the petitioner to that extent on the judgment of this Court as referred above on the issue of actual income is correct and the court below must decide even now as to what can be the actual income of the petitioner from all resources treating the petitioner to be a member of Hindu Undivided family with only petitioner and his parents being its constituent. In the light of the discussions made 16 above, the impugned order is set aside and the court below is directed to reconsider the prayer of the wife opposite party for grant of maintenance pendente lite as also the cost of litigation after holding an enquiry within a period of 60 days from the date of receipt/ production of a copy of this order. If necessary the Presiding Officer of the Family Court would conduct day to day proceedings for allowing the parties to lead their evidence in course of such enquiry so that the final order in terms of section 24 of the Act is passed within the statutory time limit as fixed in section 24 of the Act. It is also made clear that the amount of maintenance as may be awarded by the court below will date back from the date of filing of such an application by the wife opposite party i.e. 27.6.2007. With the aforementioned observations and directions, this application is allowed to the extent indicated above. (Mihir Kumar Jha,J.) Patna high Court Dt.16th Sept.2009 Surendra/