Satish Chandra Purohit v. Manju Purohit — 1987 DIGILAW 173 (RAJ)

NAVIN CHANDRA SHARMA, J.—In this revision, dispute relates to the grant of alimony pendente lite to non-petitioner Smt. Manju against whom the petitioner Satish Chandra has filed an application for divorce u/s 13 of the Hindu Marriage Act, 1955. 2. The District Judge, Jodhpur, after taking into consideration the affidavits filed by the respective parties, came to the conclusion that it was proper to assess the monthly income of the petitioner at R. 3000/- per month and holding it to be so, granted to the non-petitioner alimony pendente lite at the rate of R. 600/- per month. Apart from that, the District Judge also granted an amount of Rs. 700/- to the non-petitioner for expenses of legal proceedings on divorce which she was required to defend. 3. The petitioner has come in revision to this Court challenging the grant of alimony pendente lite to the non-petitioner by the District Judge, Jodhpur. I have heard Mr. M.D. Calla learned counsel appearing for the petitioner and Mr G.N. Gaur, learned counsel appearing for the non-petitioner. 4. The learned counsel for the non-petitioner raised preliminary objection to the effect that the petitioner has now have alleged in his petition that if the impugned order is allowed to stand, it would cause failure of justice or cause irreparable injury to him and, therefore, this court should not vary or reverse the impugned order. If we read the petition filed by the Satish Chandra as a whole, it would appear that he had alleged that his earning activity has been limited to his service in Water Works Department for about three years on a pay of Rs. 327/- per month which was hardly sufficient for making his both hands meet. There is a further fact appearing in the case and the fact is that even the District Judge has assessed the monthly income of the petitioner merely on an estimate. There were no accounts before the District Judge to come to the conclusion that the monthly income of petitioner was R. 3000/- per month. There also appears to be variance between the pleading of the non-petitioner and the evidence on the point whether the petitioner himself used to drive three whealer or whether it was only given on hire by him to certain persons. There also appears to be variance between the pleading of the non-petitioner and the evidence on the point whether the petitioner himself used to drive three whealer or whether it was only given on hire by him to certain persons. Due to this important fact, it is necessary in this revision to examine where, in such circumstances, the quantum of alimony pendente lite fixed by the District Judge is reasonable or unjust. 5. There is an assertion on behalf of the petitioner that he was diesel mechanic in Water Works Deptt., and he was getting a monthly salary of Rs. 327/-. This fact was not controverted by the non-petitioner. The case of the non-petitioner in para No. 4 of her petition itself was that the petitioner was diesel mechanic in Water Works Deptt. What she alleged in her petition was that part from that, the petitioner had earning from tempo which was controlled or supervised by him and he got income from the running of tempo every day. It was also stated by her that the petitioner had purchased the tempo benami in the name of his mother. The non-petitioners assertion was itself based on an estimate that the income of the petitioner from running of the tempo was from Rs. 3000/- to Rs. 5000/- per month. 6. Learned counsel for the petitioner contended on basis of the decision of the Federal Court reported in AIR 1949 Federal Court 88 that burden of proving that the petitioner had purchased the tempo benami in the name of his mother was on the non-petitioner and the District Judge could not base his findings against the petitioner without any reliable evidence to that effect. With regard to this contention, it may be stated that it was not a title suit regarding the ownership of the tempo. It was an application for interim maintenance which, as a general rule and practice, is disposed of an affidavits like any other interim application in civil proceedings. There is nothing to show that the mother of the petitioner had any assets of her own or any earning from which she could purchase a tempo. According to the petitioners own version, he was gatting a meagre salary of Rs. 327/- per month from his employment as Diesel Mechanic. In these days, it was hard to pull on with such a meagre income. According to the petitioners own version, he was gatting a meagre salary of Rs. 327/- per month from his employment as Diesel Mechanic. In these days, it was hard to pull on with such a meagre income. A legitimate inference could be drawn that because the petitioner was in epmloy-ment in Water Works Department, he chose to purchase the three wheeler benami in the name of his mother. In my view, the learned District Judge rightly drew this inference and rightly held that the three-wheeler was purchased by the petitioner benami in the name of his mother. 7. The next question of determination is whether on basis of the material before him, the learned District Judge was justified in coming to conclusion that the petitioner was earning Rs. 3,000/- per month from the running of this three-wheeler. On going through the order of the learned District Judge, it would appear that he had estimated the income on the basis as if the petitioner was himself driving the three-wheeler. In this connection, the learned District Judge ignored the pleadings of the non-petitioner herself in para No. 4 wherein she had herself stated that the tempo was supervised or directed or controlled by the petitioner. The word Sanchalan used in para 4 of the petition could not, by any streatch of imagination, be construed as meaning that the petitioner himself was driving the three-wheeler. On the contrary, this word went to suggest that the petitioner was giving the three-wheeler on hire and used to recover hire-money every day. When the petitioner was employed in Water Works, it could not be believed that he was himself driving the three-wheeler. He had also to attend his official duties. The learned District Judge was, there- fore, wrong in estimating the income of the petitioner at the rate of Rs. 3,000/-per month on the basis as if the petitioner was himself driving the three-wheeler without giving it on hire to anybody. This finding was contrary to the petitioners two pleadings in para No. 4 of her petition. 8. It is true that the petitioner has not produced by any account of the hire-money which he used to receive. However, there is nothing to show that he maintained any such account. Taking into consideration the fact that the learned District Judge himself had arrived at the estimated income of Rs. 8. It is true that the petitioner has not produced by any account of the hire-money which he used to receive. However, there is nothing to show that he maintained any such account. Taking into consideration the fact that the learned District Judge himself had arrived at the estimated income of Rs. 3,000/-per month on the basis that the petitioner himself was driving three-wheeter and when once chat basis goes away, it would be quite reasonable and fair to estimate the income of the petitioner from the hire of three-wheeler at half of the estimated amount of Rs. 3000/-, which would come to Rs. 1500/- per month. Adding to it the salary which petitioner was receiving from Water Works Department which amounts, to Rs. 327/- the figure comes to Rs. 1,827/- per month. I am of the view that in the light of the facts and circumstances pointed out above, the monthly income of the petitioner should be assessed at Rs. 1827/- per month. 9. Coming to the quantum of alimony pendente lite, which deserved to be fixed, I may refer the decision of a Single Judge of this court in Mukan Kanwar vs. Ajitchand(1). In this case, his Lordship Jagat Narain J , held that in the absence of special circumstances, maintenance should be allowed at ]/5th of the net income of the husband. I may state that for merely, it was usual in England to award an amount which would bring the income of wife approximately onefifth of the joint incomes. Reference in this connection may be made to Hawkes Vs. Hawkes (2) and Hill Vs. Hill. (3) This formula meant one-fifth of the husbands income, where wife had no separate means and where each had an income, the award to the wife would be one-fifth of the joint incomes less her own income but it only applied in cases where a wife was proceeded against for adultery. Now the allowance is entirely in the discretion of the Court. Reference in this connection may be made to the decision in Griffith vs. Griffith (4). In general, wife should not be relegated to lower standard of living than that which the husband enjoys. Reference in this connection may be made to the observations of Sir Jocelyn Simon P. in Kershaw Vs. Kershaw (5). 10. In Vinay Kumar Vs. Reference in this connection may be made to the decision in Griffith vs. Griffith (4). In general, wife should not be relegated to lower standard of living than that which the husband enjoys. Reference in this connection may be made to the observations of Sir Jocelyn Simon P. in Kershaw Vs. Kershaw (5). 10. In Vinay Kumar Vs. Smt. Purnima Devi (6) the District Judge awarded interim alimony pendente lite at the rate of 20% of the husbands income. This was not disturbed by this Court. I may also refer to a Bench decision of this Court in Smt. Priti Parihar Vs. Flt. Lt. Kailash Singh (7). In Smt. Priti Parihars case, husbands net income was taken to be Rs. 1571/- and the learned Judges held that there did not appear any reason in the case to depart from the normal rule of awarding l/5th of the net income of the husband as interim maintenance to the wife U/s 24 of the Act. On behalf of the husband it was contended in. Smt. Priti Parihars case (supra), that it was not a hard and fast rule that one-fifth of the net income of the husband should be awarded by way of interim maintenance to the wife. His Lordship Gupta, J. observed that it is of course undisputed that award of maintenance is a matter of discretion of the Court, but this discretion is to be exercised on sound legal principles. Following the decision in Mukan Kanwers case(supra) and in the absence of special circumstances, the interim maintenance allowance was awarded at l/5th of the net income of the husband. In the present case also, there are no special circumstances except that the non-petitioner is also maintaining a daughter. Looking to this circumstances, I am of the view that it is reasonable to fix an amount of Rs. 400/- per month as alimony pendente lite the divorce case No. 164/A-83 pending in the Court of District Judge, Jodhpur. 11. It was urged by Mr. Calla appearing for the petitioner that affidavits have been filed on behalf of the petitioner that the three-wheeler has since been sold and that the non-petitioners assertion that, in its place, a jeep has been purchased by the petitioner is false. 11. It was urged by Mr. Calla appearing for the petitioner that affidavits have been filed on behalf of the petitioner that the three-wheeler has since been sold and that the non-petitioners assertion that, in its place, a jeep has been purchased by the petitioner is false. For this, it is sufficient to state that the amount of alimony pendente lite has been determined on the basis of the circumstances existing on the date the non-petitioner had filed present application for that purpose. If subsequent to that, any change in circumstances has occurred, either party in law has the right to bring changed facts and circumstances, if any to the notice of the court and pray to the Court to vary the amount of alimony consistent with the changed circumstances. 12. I, therefore, partly allow this petition and order that the petitioner shall pay alimony pendente lite at the rate of Rs. 400/- per month to the non-petitioner and not at the rate of Rs. 600/- per month as determined by the District Judge, Jodhpur. The order of the District Judge, Jodhpur to the extent aforesaid is modified. The parties are left to bear their own costs of this revision.