IN THE HIGH COURT OF JUDICATURE AT PATNA C.R. No.173 of 2007 BRAJESH KUMAR Versus SMT.RUBI ROY & ORS ----------- 4 29/8/2008 Heard counsel for the parties. In this case the petitioner, husband has assailed the order granting maintenance under section 24 of the Hindu Marriages Act fixing a sum of Rs. 7,500/- per month by way of maintenance pendent- elite along with Rs. 10,000/- as a consolidated amount by way of cost of litigation. Much could have been said about the impugned order but when this Court would find that the suit itself is sought to be withdrawn by the petitioner in order to enable him to file a suit for divorce, the whole exercise by this Court of analyzing the impugned order will become academic. It will be so because when a new proceeding of divorce is initiated by the petitioner, the opposite party, wife will have a right to come out with a fresh application under section 24 of the Hindu Marriages Act. The apprehension of Mr. Dwivedi, 2 learned counsel appearing on behalf of the husband, petitioner is that in the case of divorce this order may be used as a precedent which suffers from basic infirmity of non consideration of income of the wife for which evidences were led before the court below and as such at least this much has to be clarified by this Court that the aforementioned impugned order will not be used as a precedent for fixing the amount of maintenance in any future proceedings. Mr. Madan Mohan Prasad, learned counsel appearing on behalf of the wife would seriously object to this submission inasmuch as an order is yet to be passed by the court below in a proceeding which has not been even been instituted. He would next submit that the order impugned in this case does not suffer from any infirmity as the wife is entitled for reasonable comfort as per her status prior to institution of the proceeding. He would further contend that the husband has income from his own employment being Engineer in the Bihar State Electricity 3 Board and therefore this Court should not say anything about the impugned order which may adversely affect the wife in claiming maintenance under section 24 of the Hindu Marriages Act in the divorce proceeding. Having given my anxious consideration, I am of the view that the impugned order cannot be allowed to stand for a simple reason that the very concept of section 24 of the Hindu Marriages Act which ensures a right for the wife or the husband to be supported by the income of the either person who has brought a proceeding, cannot be extended to make a luxurious life during the proceedings. What would be standard of living during the proceedings is definitely a moot question for consideration and that question would again depend upon two important factors namely that the wife has no independent income and that whatever income she has, is not sufficient for her being supported in course of the proceedings. The concept, therefore, under section 24 of the Hindu Marriages Act is 4 to create a position of status-quo which the wife was availing prior to filing of matrimonial case and therefore, whenever such an order for interim maintenance has to be passed, the court has to take into consideration the amount of income which the wife may have from her own source and any need of further augmentation of such amount for her being supported during the pendency of the matrimonial proceeding has been brought against her. Unfortunately, these tests have not been applied by the court below which has gone to hold in the impugned order that the petitioner-husband is well employed and has income of Rs.17,586/- and therefore he must pay Rs.7,500/- per month and Rs. 10,000/- by way of litigation cost. Such order cannot be said to be in accordance with Section-24 of the Act because income of the husband may be taken into consideration but then it should also be taken into consideration that as to whether the wife has also independent source of income, and thereafter, equity has to be balanced between both the 5 parties so that both of them may survive peacefully and in a dignified manner by maintaining status-quo ante prior to the institution of the proceedings. In that view of the matter, this Court would not find any justification to uphold the impugned order and the same is hereby set aside only for the purpose of its being not taken into consideration in any future proceeding to be initiated by either party. With the aforementioned observation this application is disposed of. ( Mihir Kumar Jha, J.) Abhay Kumar