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1998 DIGILAW 872 (MAD)

G. Kalaiselvi v. P. Palanisamy

1998-06-29

S.S.SUBRAMANI

body1998
ORDER: This revision is under Art.227 of the Constitution of India, challenging the order of Family Court, Salem, passed in I.A.No.59 of 1997 in F.C.O.P.No.405 of 1996, dated 5.2.1998. 2. Respondent herein filed F.C.O.P/No.405 of 1996 for divorce, in which petitioner herein filed I.A.No.59 of 1997 for getting interim maintenance and litigation expenses, under Sec.24 of the Hindu Marriage Act. In the affidavit, it was stated that respondent herein is employed in a spinning mill and that he was getting a monthly income of not less than Rs.2,000, both from the salary and also from rental income from various tenants. She prayed for atleast Rs.2,000 towards litigation expenses. 3. Before passing the impugned order, court be low-took evidence of P.W.1 and also R.W.1. In her evidence, the wife said that her husband is getting a monthly income of not less than Rs.2,000, and for her maintenance according to the status of the husband, atleast Rs, 1,000 is required. The husband was examined as R.W. 1. He also admitted in his evidence that he is getting a monthly salary of Rs.3,000, and after deductions, he is getting a net salary of Rs.2,000. He also said that portions of building were occupied by tenants. But the entire building belongs to his father, and rental income also will be less than Rs.2,000. 4. After taking into consideration the evidence, Family Court came to the conclusion that the respondent is getting a monthly income of Rs.2,000, and the petitioner is not having means of her own. Finally, it directed the husband to pay Rs.150 per mensem towards alimony and Rs. 1,000 towards litigation expenses. It is the said order that is challenged in this revision. 5. Once it is found that the petitioner is entitled to get monthly alimony and that she has no independent source of income, then, naturally the question that has to be considered is, whether in fixing the quantum of monthly alimony, court below has followed legal settled principles. 6. In a recent decision of the Supreme Court reported in Jasbir Kaur Sehal v. District Judge Jasbir Kaur Sehal v. District Judge Jasbir Kaur Sehal v. District Judge , (1997)7 S.C.C. 7 . in para 8, their Lordships have held thus: “….No set formula can be laid for fixing the amount of maintenance. 6. In a recent decision of the Supreme Court reported in Jasbir Kaur Sehal v. District Judge Jasbir Kaur Sehal v. District Judge Jasbir Kaur Sehal v. District Judge , (1997)7 S.C.C. 7 . in para 8, their Lordships have held thus: “….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 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….” In this case, even according to the respondent, petitioner has to live with her father, though it is said that her father is getting a monthly income of Rs. 10,000. Merely because petitioner happens to live with her father, that will not absolve the liability of the husband to maintain her under law. The wife is entitled to live according to the status of the husband. In this case, the Family Court itself has found that the husband is getting not less than Rs.3,000 per month, but it has awarded only Rs.150 per mensem towards monthly alimony. This, according to me, is on the lower side, in the light of the decision of the Supreme Court referred to supra. 7. Learned counsel for respondent/husband argued that he has to maintain the parents and that should be considered while fixing the quantum of alimony. The marriage itself was conducted while the parents were alive, and that cannot be an answer for not maintaining the wife properly. It is not an additional liability which the husband has to face after marriage. 8. Learned counsel for respondent/husband argued that he has to maintain the parents and that should be considered while fixing the quantum of alimony. The marriage itself was conducted while the parents were alive, and that cannot be an answer for not maintaining the wife properly. It is not an additional liability which the husband has to face after marriage. 8. Taking into consideration the status of parties as spoken to by both parties, and also taking into consideration the income of the respondent/husband, I feel that this is a fit case where petitioner must be awarded Rs. 1,000 as monthly alimony. She is entitled to monthly maintenance at the said rate from the date of petition, i.e., 4.3.1997, and the respondent is bound to pay the same without fail. I also make it clear that only after the respondent pays the entire amount as fixed in this order, trial proceedings shall go on the Family Court. The entire arrears will have to be paid within a period of two months from to-day, and till then all further proceedings in the Family Court shall stand stayed. In case the amount is not paid, the Family Court is at liberty to struck-off the main petition for failure to obey the orders of this Court. If the amount as fixed in this order is paid, the trial shall proceed. The Family Court will also see that further trial of the case is adjourned till compliance of this order. I also make it clear that the respondent has to pay the entire arrears at the rate fixed by me, and also future maintenance till the disposal of this case, on or before the 5th of every month in advance. 9. Regarding litigation expenses, 1 feel that the quantum fixed by the Family Court is reasonable. 10. In this revision, no other point was urged by learned counsel for both parties. 11. In the result, the impugned order is modified, and instead of Rs.150 fixed by the Family Court, the quantum of interim alimony is fixed at Rs. 1,000 per mensem, payable from 4.3.1997, with a further direction that the entire arrears shall be paid within two months from to-day. Petition is also entitled to costs in this revision. Advocate's fee Rs. 1.000. The said amount also will have to be paid by the respondent with the arrears. 1,000 per mensem, payable from 4.3.1997, with a further direction that the entire arrears shall be paid within two months from to-day. Petition is also entitled to costs in this revision. Advocate's fee Rs. 1.000. The said amount also will have to be paid by the respondent with the arrears. The revision petition is allowed with costs as indicated above. C.M.P.No.5382 of 1998 for stay is closed. Petition allowed.