IN THE HIGH COURT OF JUDICATURE AT PATNA C.R. No.1123 of 2007 ANAND PRAKASH, SON OF SRI JAI PRAKASH NARAYAN, RESIDENT OF HATHUA ENCLAVE, P.S.-DIGHA, TOWN & DISTRICT-PATNA. ……………………………… PETITIONER --- PETITIONER Versus ASHA DEVI, WIFE OF SRI ANAND PRAKASH, RESIDING AT BELWARGANJ, P.S.-ALAMGANJ, PATNA CITY, DISTRICT-PATNA. ………………………… OPPOSITE PARTY --- OPPOSITE PARTY For the Petitioner : Mr. Mrignka Mauli, Advocate For the Opposite Party : Mr. Shyamal Prakash, Advocate. P R E S E N T HON’BLE JUSTICE MIHIR KUMAR JHA ----------- Mihir Kr. Jha, J. Heard counsel for the parties. In this civil revision application the petitioner, husband, has assailed an order dated 23.4.2007 passed in Matrimonial Case No. 107/2004 allowing maintenance pendente lite under section 24 of the Hindu Marriages Act at the rate of Rs. 3300/- per month. Counsel for the petitioner has assailed the aforementioned order only on the issue of quantum and has taken a plea that there is no assured source of income for the petitioner, inasmuch as the earning of the petitioner from tuition is Rs. 1000/- to 1200/- per month and that the house in question from which a rental income of a sum of Rs. 4 to 5 thousand per month is derived cannot be treated to be the income of the petitioner, inasmuch as the house in question is in the name of 2 grand-mother of the petitioner. Counsel for the petitioner, therefore, would submit that the court below has committed an error in fixing a sum of Rs. 3300/- per month by way of maintenance payable to the opposite party without considering the materials on record and assessing the true income and paying capacity of the petitioner. Counsel in this context has also placed reliance on an unreported order of this Court dated 4.8.2006 in C.R.No. 1909/2005 (Sanjay Kumar Gupta vs. Geeta Devi). Counsel for the opposite party, on the other hand, would submit that it is not in doubt that the petitioner, husband, who has filed a divorce suit against the opposite party is liable to pay monthly maintenance in terms of section 24 of the Act because the opposite party, the wife, has no source of income to maintain herself during the pendency of the suit. In this context counsel for the opposite party has referred to the evidence on record which in his opinion would fully justify the amount of Rs. 3300/- per month, inasmuch as it has come in evidence 3 that the husband petitioner was at relevant point of time employed in a private firm and was earning Rs. 10,500/- per month in a call centre at Mumbai. He has also submitted that the petitioner is the only son and his father has a huge property apart from his fixed monthly pension and as such, it cannot be said that the family of the petitioner having minimum assured sum of Rs. 25,000/- per month would not be in a position to pay a sum of Rs. 3300/- per month for maintenance of the opposite party. This Court after hearing the petitioner as also perusing the materials on record including the evidence adduced by the parties is of the firm opinion that the petitioner cannot disown the liability to maintain his wife opposite party, inasmuch as the petitioner has miserably failed to prove the fact that the wife had her own independent income. It is true that some suggestion was given in cross- examination to the wife opposite party that she was employed and was earning Rs. 10 to 12 thousand per month but not a chit of paper or any other documentary evidence 4 has been brought on record to prove this fact. This Court would find from the well discussed impugned order that the petitioner had examined himself and his father as two witnesses and their evidence have been analyzed in paragraphs no. 10 and 11 of the impugned order. The court below in fact has also examined the evidence of the wife opposite party and two other witnesses who are neighbours of the petitioner. Their deposition has also been examined critically by the court in paragraphs no. 7, 8 and 9 and on an over all appreciation of the materials on record the court below has on completion of enquiry under section 24 of the Act passed the impugned order by holding that the petitioner on his own showing has income from tuition, income from house rent as also full support from his father, a retired officer of Merchant Navy. The assessment of the court below of the petitioner having not less than an income of Rs. 10,000/- per month cannot be said to be either perverse and awarding 1/3rd of such income by way of monthly maintenance 5 till the disposal of matrimonial case is in terms of the judgment of this Court in the case of Rashid Nazfi vs. Sahin Gulab, reported in 2005(3) PLJR 741, is not illegal. The added emphasis of Mr. Mrigank Mauli, learned counsel for the petitioner, that the petitioner has no independent income and in fact is fully dependent on his parents and as such, would not be liable to pay any amount of maintenance to his wife during the pendency of divorce case is to be only noted for its being rejected. Section 24 in fact uses to expression independent income for the wife or the person claiming maintenance and income of the respondent from whom such maintenance is claimed. This would be clear from the provisions of section 24 of the Act which reads as follows: “24. 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 6 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.” (underlining for emphasis) In this case there would be no dispute that the petitioner has miserably failed to prove that his wife, the opposite party, had any independent income sufficient for her support as also for meeting the necessary expenses of the divorce case. The opposite party wife by her own evidence and the evidence of two neighbours of the petitioner (husband) on the other hand has successfully demonstrated that the petitioner is a qualified person who was trained for 7 specialized job at Kolkata whereafter he had got a job in Global Call Centre at Mumbai and had been receiving a handsome salary. It has also been admitted by the father of the petitioner in his deposition that his son, the petitioner, is the only issue and that the family has two houses, one in which they were living and the other from which there was a rental income. It is in these circumstances that the court below has construed the scope of the word „income of the respondent‟ to hold that the concept of „independent income‟ of the person from whom the maintenance is claimed cannot be the deciding factor for award of maintenance under section 24 of the Act. In the opinion of this Court such interpretation of section 24 of the Act cannot be faulted either on fact or in law inasmuch as the legislature has consciously used the expression „independent income‟ for the person claiming it, whereas „income of the respondent‟ from whom such maintenance is claimed has been given no such freedom to restrict the liability for payment of 8 maintenance unless he or she has independent income. If the said argument of Mr. Mrigank Mauli is taken to logical conclusion, every husband being called upon to pay the amount of maintenance can easily go to disown his liability by taking a plea that he has no such independent income. Can in this situation the courts be compelled to allow the divorce case to be continued against a wife who after being deserted and also subjected to a divorce proceeding having no income of her own will be left to the mercy of the husband in course of protracted matrimonial proceedings under the Act. In the opinion of this Court the legislature, therefore, has made a special provision under section 24 of the Act for supporting the weaker of the two by more affluent both in form of grant of interim maintenance as also cost of litigation. The petitioner had the earning capacity and regular flow of income since he was also employed in a private job in a call centre and was earning even as per his own admission a sum of Rs. 10,500/- 9 before leaving such job which would be itself a strong circumstance to show that the petitioner is not only capable but had good qualification from which he could still earn even after leaving his job. A husband with a saddist approach, if he would leave a job during the pendency of the divorce suit, in order to inflict miseries on his wife he cannot be allowed to go scot free on the plea that he had been left with no income after abandoning his job. It is here that the oral evidence of the wife opposite party has to be taken note of wherein it has been stated that the petitioner is still earning from his private job including tuition, a fact which has been only partly admitted by the petitioner in his deposition by suggesting that his income from tuition was at best Rs. 1000 to 1500 per month. It is in these circumstances that the court has to weigh the oral evidence of the parties to find out as to how a person employed in a call centre with a five figures salary could have contained himself after leaving the job on a paltry sum of Rs. 1000 to 1500 per month. 10 The evidence of the father of the petitioner and his two neighbours in fact would go to show that apart from the earning of the petitioner he was well supported from the family income as he was the only son with no liability and his father having two houses out of which one was put on rent in Danapur with a rent fetching capacity of Rs. 4000/- to 5000/- per month. It must be taken note of that the petitioner had tried to successfully evade his responsibility of placing all correct materials relating to his own income and the income of the family and did not even discharge the onus in terms of section 106 of the Evidence Act. A retired Officer of Merchant Navy having two houses in Patna and Danapur with a family of three i.e. the petitioner and his parents, therefore, cannot be said to have no income so as to support the opposite party during the pendency of the divorce case. A joint family income of the petitioner, therefore, would also form part of the expression „income of the respondent‟ within the meaning of section 24 of the Act and judged from this angle 11 the petitioner cannot be heard to say that he will not pay any amount towards the maintenance of his wife, the opposite party, during the pendency of the divorce suit. This Court having held that the quantification of the total income of the petitioner whether from his personal earnings from the private job including tuition or from the family sources to be a sum of Rs. 10,000/- per month is neither perverse nor illegal nor against the weigh of evidence on record would hold that the direction to pay 1/3rd of such income towards maintenance of the wife opposite party also does not suffer from any illegality. The Apex Court in the case of Jasbir Kaur Sehgal vs. District Judge, Dehradun & ors., reported in (1997) 7 SCC 7, has held 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 12 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 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. There is no dispute that the petitioner is a qualified person, his father is a retired Merchant Navy Officer and belongs to a affluent class having two houses in the city of Patna and town of Danapur. In such a situation the quantification of 1/3rd of assessed income of the petitioner for its being paid towards maintenance of the wife opposite party cannot be said to be either excessive or extortionate. The reliance placed by the counsel for the petitioner on the judgment of the Apex Court in the case of Vimlaben 13 Ajitbhai Patel vs. Vatslaben Revandas Patel & anor., reported in (2008) 4 SCC 649, is wholly misplaced, inasmuch as what was held therein for discharge of statutory liability regarding maintenance of wife that the mother-in-law cannot be fastened with any legal liability to maintain her daughter-in-law from her own property. In the facts of the present case there would be no application to the judgment of the Apex Court in Vimlaben Ajitbhai Patel‟s case (supra), inasmuch as section 19 of the Hindu Adoptions and Maintenance Act specifically provides for maintenance of widowed daughter-in-law by her father-in-law. It was in that context that the Apex Court had absolved the mother-in-law from the ambit of having a liability to maintain her daughter-in-law. As noticed above, the statutory provisions of Hindu Marriages Act and Hindu Adoptions and Maintenance Act are quite distinct and therefore, the reliance placed by the counsel for the petitioner on the judgment of the Apex Court in the case of Vimlaben Ajitbhai Patel (supra) seems to be wholly misplaced. 14 This Court would also find that the unreported judgment of this Court in the case of Sanjay Kumar Gupta (supra) will have no bearing on the facts of this case inasmuch as this Court in the case of Sanjay Kumar Gupta had held that the order granting maintenance under section 24 of the Act was not sustainable because the court below had failed to evaluate the income of both the parties. As noted above, in the present case the court below has not only gone into a detailed enquiry by examining the witnesses but has also come to a finding that whereas the wife opposite party has no income of her own and has become totally dependent on her father after being abandoned by her husband petitioner whereas the petitioner has both his personal income and the income from the family. Thus, the ratio of the judgment of Sanjay Kumar Gupta‟s case (supra) will have no application in the facts of the present case. The determination of maintenance pendente lite under section 24 is essentially an interim measure which normally does not call for interference 15 under section 115 of the C.P.C. especially after the amendments carried out in the Code of Civil Procedure. The scope of amended provisions of section 115 as ennunciated by the Apex Court in the case of Shiv Shakti Corporation Housing Society vs. Swaraj Developers and others, reported in (2003) 6 SCC 659 has left little scope for any discussion on this question and therefore, in view of the findings already recorded above that there is no error much less jurisdictional error in the impugned order, this Court most hold that no interference is called for in the impugned order awarding maintenance of a sum of Rs. 3300/- per month. Before parting with this Court must take note of the fact that the marriage between the parties, the petitioner and the opposite party, had been solemnized on 28.11.2002 and divorce case came to be filed in the year 2004 and a period of more than 2½ years was exhausted only in deciding the case under section 24 of the Act. The order on the petition filed by the wife opposite party dated 10.11.2004 under section 24 of the 16 Act was disposed of on 23.4.2007 primarily on account of protracting enquiry under section 24 at the behest of the petitioner himself who wanted even a Pleader Commissioner to be appointed for assessing his income. It has to be noted that such application under section 24 of the Act has to be disposed of within a period of 60 days and therefore, this Court must hold that the delay in disposal of the application under section 24 of the Act was/is totally attributable to the petitioner. In such a situation, the direction for payment of consolidated amount of Rs. 10,000/- in lump-sum by the husband petitioner to the wife opposite party is also not unreasonable or excessive. Thus, the direction of the court below for payment of maintenance of a sum of Rs. 3300/- per month by the husband petitioner to the wife opposite party with effect from 10.11.2004 and payment of Rs. 10,000/- towards the cost of litigation is affirmed and the petitioner is directed to pay the arrears within a period of one month from the date of receipt/ production 17 of a copy of this order. The petitioner shall also keep on paying the amount of monthly maintenance on month to month basis as directed in the impugned order and hearing of divorce case shall only commence when the petitioner would clear his entire liability towards the arrears of monthly maintenance and the cost of litigation. With the aforementioned observations and directions this application is dismissed with a cost of Rs. 5,000/- to be paid by the petitioner within a period of one month to the wife opposite party, failing which it would be open for the court below to realize even this amount in addition to the other amounts as awarded in the impugned order. (Mihir Kumar Jha,J.) Patna High Court Dated the 18th September 2009 Surendra/