S. C. MOHAPATRA, J. ( 1 ) THE defendant in a suit by the husband under the Indian Divorce Act, 1869 (for short 'the Act') is the petitioner against an order under S. 36 thereof relating to alimony pendente lite. ( 2 ) SECTION 36 reads as follows :-"36. Alimony pendente lite - In any suit under this Act, whether it be instituted by a husband or a wife, and whether or not she has obtained an order of protection, the wife may present a petition for alimony pending the suit. Such petition shall be served on the husband, and the Court, on being satisfied of the truth of the statements therein contained, may make such order on the husband for payment to the wife of alimony pending the suit as it may deem just : provided that alimony pending the suit shall, in no case exceed one-fifth of the husband's average net income for the three years next preceding the date of the order, and shall continue, in case of a decree for dissolution of marriage or of nullity of marriage, until the decree is made absolute or is confirmed, as the case may be. " ( 3 ) THERE is no dispute that in such a proceeding the application is maintainable. Mr. Aziz, the learned counsel for the wife-petitioner, submitted that the trial Court has not kept in mind the ingredients for determining the quantum of alimony and has arbitrarily fixed the amount basing his determination on surmises. Mr. S. K. Dey, the learned counsel for the opposite party, on the other hand submitted that the determination is reasonable in the circumstances of the case and I ought not to interfere with the order in exercise of power under S. 115, C. P. C. ( 4 ) UNDER S. 36 wife alone has the right to file an application. Principle of natural justice has been reflected in the Section itself which requires the copy of the application to be served on the husband. Trial Court is required to consider the truth of the statements made in the application and thereafter, on its findings shall make such order on the husband as it may deem just for payment of alimony to the wife, pending disposal of the suit.
Trial Court is required to consider the truth of the statements made in the application and thereafter, on its findings shall make such order on the husband as it may deem just for payment of alimony to the wife, pending disposal of the suit. In the proviso clear restriction has been made that such pendente lite alimony shall not exceed one-fifth of the husband's average net income for the three years next preceding the date of the order. Thus, the Court considering such application is to determine the net income for three years and on the facts and circumstances of each case shall determine the quantum of alimony which shall not exceed one-fifth of the average thereof. ( 5 ) THE impugned order does not disclose the consideration of the truth of the petition by the wife. However, neither party having disputed the entitlement of the petitioner to alimony pendente lite, I need not delve into the question. It is sufficient to indicate that the facts stated in the petition ought to have been reflected in the order and the correctness thereof should have also been clearly reflected in the order. All judicial orders are required to be speaking orders. ( 6 ) TRIAL Court has not determined the average of the net income for three years next preceding to the order. In case the husband would have assailed the order, this would have been the ground to set aside the same. It is found by the trial Court that by 20-4-1987 the net income after all deductions is Rs. 1400/- per month. Trial Court assumed that increase of dearness allowance is a regular feature and accordingly, the average net income per month for the purpose of S. 36 would come to Rs. 1100/- per month. Husband is an employee in the Mineral and Metal Trading Corporation of India Limited. The husband could have been called upon to produce the rate of increase. It being within the knowledge of the husband he ought to have brought the facts to record which would have been beneficial to him. In the absence of production of such material, trial Court ought to have reasonably inferred that the materials on record only disclose the net income to be Rs. 1400/- per month since the husband would not have left it in case the fact would be otherwise.
In the absence of production of such material, trial Court ought to have reasonably inferred that the materials on record only disclose the net income to be Rs. 1400/- per month since the husband would not have left it in case the fact would be otherwise. Remitting back the matter for this purpose would cause hardship to the petitioner. Therefore, in the facts of this case I determine the net average income per month at Rs. 1400/ -. Mathematically calculated, the one-fifth of the same which is the maximum limit brings the figure at Rs. 280/ -. In the absence of any finding as to the truth of the statements of the petitioner, and no circumstance having been indicated why the maximum amount shall be directed to be paid and to protect the interest of the wife so that she gets the alimony early, I fix it at Rs. 225/- per month. Mr. S. K. Dey, submitted that some amount has been deposited in Court. The balance amount adjusting the amount already deposited shall be paid or deposited within two months from today. ( 7 ) THE suit is of the year 1986. Being a matrimonial proceeding it is to be disposed of expeditiously Trial Court shall do well in taking all steps for final disposal of the same expeditiously in accordance with law. ( 8 ) WITH the aforesaid observation, this civil revision is disposed of. No costs. Order accordingly. .