IN THE HIGH COURT OF JUDICATURE AT PATNA C.R. No.2042 of 2006 PRAKASH KUMAR SINHA Versus NIRMALA KUMARI ----------- 3 12/8/2008 Heard counsel for the petitioner. While counsel for the petitioner very fairly submits that he would not question the quantum of maintenance fixed by the impugned order of Rs. 5,000/- per month taking into consideration that the take home salary of the petitioner was Rs. 17,423/- and the gross salary was Rs. 18,483/- as in the year 2005, he would only contend that the procedure adopted by the court below for enhancing the amount of Rs. 5,000/- within one year of the earlier order fixing the amount of Rs. 3,000/- per month is absolutely is wholly illegal and infact vitiated by apparent jurisdictional error in as much as, section 24 of the Hindu Marriages Act does not contemplate re-fixation of interim maintenance by revising the earlier order. In the opinion of this Court such submission has to be rejected both on fact and in law. On fact because from the first order dated 17.8.2005 which is annexure 1 to this civil revision application it would transpire that the petitioner had earlier never produced his salary slip showing as to what was his monthly income. Counsel for the petitioner fairly submits that his monthly salary either gross or take home even at that point of time was not Rs. 14,000/-, but since he was paying monthly installment of loan his salary in hand was in the vicinity of Rs. 14,000/- 2 per month. From the said order it is clear that the petitioner did not choose to produce any proof of his monthly income before the court which had proceeded to fix the amount of Rs. 3,000/- on the submission of the wife-opposite party that the petitioner was drawing monthly salary to the tune of Rs. 14000/- approximately. It was in this background that the court below had passed the following orders:- “Though it has been contended on behalf of the husband-petitioner that respondent has not given the correct data of the income of the husband but the husband has not denied that he is not in government job and has not produced his salary slip which was within his special knowledge. The detail evidence of the income of the parties is yet to come. However, this one is ad- interim matter, hence on the basis of available materials that husband is doing a government job. It is held that he is liable to pay ad interim maintenance to his wife specially when the wife has no source of her own income.” Learned Counsel for the petitioner therefore could not dispute that his actual take home salary even on 17.8.2005 was Rs. 17,423/-, but the court below was not made aware about his take home salary which fell under the impression that the salary of the petitioner was Rs. 14,000/- per month and consequently had fixed Rs. 3,000/- per month as interim maintenance payable by the petitioner to his wife. Subsequently the wife on query could know of the actual salary of the petitioner and had filed an application seeking revision of the amount of maintenance in view of a judgment of this Court that one should get atleast 3 1/3rd amount of the income of the husband. The court below this time had asked his employer/ controlling officer of the petitioner to produce salary slip of the petitioner from which it could be revealed that the gross salary of the petitioner was Rs. 18,483/- and take home salary was Rs. 17,423/- and on that basis the court below proceeded and passed the impugned order by revising the amount of Rs. 3,000/- to Rs. 5,000/-. While doing so the Court below had also noted an undisputed fact that the petitioner had also rental income from his houses of at Patna and Hazaribagh. Thus on fact, this Court does not find any error in fixation /revising the amount of interim maintenance from Rs.3,000/- to Rs. 5,000/- which can not be said to be either excessive or illegal keeping in view that the petitioner is an Enforcement Officer in this service of the State Government and his wife-opposite party is entitled to maintain herself in an equal status, being wife of an officer. Coming to the question of law, this Court is of the view that section 24 of the Hindu Marriage Act hereinafter referred to as the Act cannot be so crudely interpreted as has been put forward by the learned counsel for the petitioner. His submission that exercise of power under Section 24 of the Act is one time exercise and the court can not revise the amount once fixed by it, is to be only noted for its rejected. Section 24 of the Act reads as follows ; - 4 “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 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.” As a matter of fact this Court does not find any such impediment which prohibits the court exercising power under Section 24 of the Act from making reassessment or revision of the amount of maintenance. This is clear from wordings of Section 24 of the Act where the Court is enjoined to consider only one namely, that the spouse claiming maintenance does not have an independent sufficient source of income by which he or she can support himself/herself during the pendency of a matrimonial proceeding. Thus sufficiency of means of sustainence for survive during pendency of the proceeding is the touch stone on which the issue interim maintenance has to be decided. When the proceeding of the year 2000 has been continued up to 2008, in such case it cannot be said that whatever amount has been fixed in the year 2000 should be continued even in 2008. The rise in market index for the weaker of the two spouse and 5 increase in need of such spouse vis-à-vis increase in income of the other spouse are such factors which have to be taken into account for providing sufficient support to the person granted interim maintenance and if that calls for a revision, the same can be very well allowed by the Court exercising power under Section 24 of the Act. That being so, the court must hold that there is no bar in section 24 of the Act for revision in the amount of interim maintenance. Accordingly, this Court does not find any merit in either submission of the counsel for the petitioner and thus, this application is dismissed. ( Mihir Kumar Jha, J. ) Abhay Kumar