Pankaj Kumar Singh v. Nisha Mishra — 1999 DIGILAW 954 (PAT)

Judgment S.N.Jha, J. 1. This Civil revision is directed against the order of the District Judge, Darbhanga dated 7.12.1998 in Matrimonial Case No. 7 of 1993. By the impugned order the petitioner who is the husband and the plaintiff of the matrimonial case, has been directed to pay interim maintenance @ Rs. 500 per month under Section 24 of the Hindu Marriage Act 1955. The petitioner has filed the above mentioned Matrimonial case for annulment of marriage with opposite party no. 1 Nisha Mishra under Section 12 of the Hindu Marriage Act on the ground of unsoundness of mind. 2. By order dated 20.4.99 while issuing notice to opposite party, this court directed the petitioner to deposit Rs. 1000/- per month towards arrears of maintenance and Rs. 5000/- towards litigation expenses within two months in two instalments. The opposite party has since appeared. 3. Shri Tara Kant Jha, learned counsel for the petitioner submitted that there was absolutely no basis for directing the petitioner to pay maintenance besides litigation expenses at the aforesaid rates. It was submitted that the order has been passed on the assumption that the petitioner possesses sufficient landed property about which there is no evidence and even if it was so, in the absence of any evidence regarding the actual income from the landed property, the court could not direct the petitioner to pay a particular amount as maintenance. It was contended that while quantifying the amount the court is required to first decide the income of the spouse which has not been done in this case. Alternatively, he submitted that in any view the direction to pay maintenance from the date of institution of the suit is not in accordance with law. He relied on a decision in Hema v. S. Lakshmana Bhat, AIR 1986 Kerala 130 and submitted that as held by the Kerala High Court, the spouse can be at best be directed to pay maintenance from the date of service of summons. Counsel also contended that the other part of the direction to litigation expenses every month also is not in accordance with law. 4. It would be useful to quote Section 24 of the Act at this stage, as under: "24. Counsel also contended that the other part of the direction to litigation expenses every month also is not in accordance with law. 4. It would be useful to quote Section 24 of the Act at this stage, as under: "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 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 petitioners own income and the income of the respondent, it may seem to the court to be reasonable." 5. It would appear that the Section empowers the Court on application to order the respondent of the proceeding, who may be wife or husband, to pay to the petitioner expenses of the proceeding as well as the amount which may be considered sufficient for the maintenance of the spouse "having regard to the petitioners own income and the income of the respondent" as it may seem reasonable to the court. Unlike Section 125 Cr. P.C., Section 24 of the Act does not contain any indication as to from which date the respondents can be held entitled to the amount of maintenance. So far as the precedents are concerned, I find that there is divergence of view amongst different High Courts, While the Andhra Pradesh High Court in Narendra Kumar Mehta V/s. Smt. Suraj Mehta, AIR 1982 Andhra Pradesh 100 and Rajasthan High Court in Bhanwar Lal V/s. Smt. Kamla Devi, AIR 1983 Rajasthan 229, have held that the respondent is entitled to maintenance from the date of application under Section 24, the Calcutta High Court in Smt. Sobhana Sen V/s. Amar Kanta Sen, AIR 1959 Calcutta 455, and Mysore High Court in N. Subramanyam V/s. Mrs. M.G. Saraswathi, AIR 1964 Mysore, 38 and Kerala High Court in Hema V/s. S. Lakshamana Bhat, AIR 1986 Kerala 130 (relied upon on behalf of the petitioner), have held that such maintenance should be paid from the date of summons. The Jammu & Kashmir High Court in Puran Chand V/s. Mst. M.G. Saraswathi, AIR 1964 Mysore, 38 and Kerala High Court in Hema V/s. S. Lakshamana Bhat, AIR 1986 Kerala 130 (relied upon on behalf of the petitioner), have held that such maintenance should be paid from the date of summons. The Jammu & Kashmir High Court in Puran Chand V/s. Mst. Kamla Devi, AIR 1981 Jammu & Kashmir 5, has held that the maintenance should be paid from the date of first hearing. 6. In Chuni Lal Gulati V/s. Krishna Rani, AIR 1983, Punjab 241, the Punjab and Haryana High Court passed a different order altogether. The wife filed application on 17.10.79 under Section 25 of the Hindu Marriage Act, seeking permanent alimony after the husband obtained divorce decree. In the meanwhile she had also filed appeal against that decree. The proceeding under Section 25 of the Act was stayed till disposal of the said appeal. After the appeal was dismissed on 21.4.82, the wife filed application under Section 24 of the Act. She had been paid maintenance in the divorce proceeding upto 5.6.81. The High Court held in the facts and circumstances that the wife should be paid maintenance from 6.8.81 and not from 21.4.82 when she filed the application under Section 24 of the Act. 7. The point recently came up for consideration before the Supreme Court in the case of Jasbir Kaur Sehgal (Smt.) V/s. District Judge, Dehradun and ors., (1997) 7 SCC 7 . The Court observed that the wife has a right to claim maintenance from the date of institution of the case but this does not mean that it is always that date from which she should be granted maintenance. The court has discretion in the matter as to from which date the maintenance under Section 24 of the Act should be granted. It would be useful to quote the observations as under : "The question then arises as to from which date the wife would be entitled to claim the enhanced amount of maintenance pendente lite. If the wife has no source of income it is the obligation of the husband to maintain her and also the children of the marriage on the basis of the provisions contained in the Hindu Adoptions and Maintenance Act, 1956. Her right to claim maintenance fructifies on the date of the filing of the petition for divorce under the Act. If the wife has no source of income it is the obligation of the husband to maintain her and also the children of the marriage on the basis of the provisions contained in the Hindu Adoptions and Maintenance Act, 1956. Her right to claim maintenance fructifies on the date of the filing of the petition for divorce under the Act. Having thus fixed the date as the filing of the petition for divorce it is not always that the court has to grant the maintenance from that date. The court has discretion in the matter as to from which date maintenance under Section 24 of the Act should be granted. The discretion of the court would depend upon multiple circumstances which are to be kept in view. These could be the time taken to serve the respondent in the petition; the date of filing of the application under Section 24 of the Act; conduct of the parties in the proceedings; averments made in the application and the reply thereto; the tendency of the wife to inflate the income out of all proportion and that of the husband to suppress the same; and the like." After making the above observations the Supreme Court held that in the facts and circumstances the end of justice would be met if the wife is paid maintenance pendente lite with effect from the date of impugned order of the High Court i.e. 16.10.96. 8. It would thus, appear that in the absence of any clear provisions, it is left to the discretion of the court to decide as to from which date the maintenance pendente lite should be paid to the respondent. However, although the wife/spouse may be entitled to maintenance pendente lite from the date of the institution of the proceeding against her, in none of the cases such maintenance was allowed from the date of the institution. As observed by the Rajasthan High Court in Bhanwar Lal vs. Smt. Kamla Devi (supra) although a case may be filed against the wife seeking decree of divorce or the like, she may not need maintenance pendente lite and therefore, unless she makes an application in that regard, there may not be any justification to pass such an order. As observed by the Rajasthan High Court in Bhanwar Lal vs. Smt. Kamla Devi (supra) although a case may be filed against the wife seeking decree of divorce or the like, she may not need maintenance pendente lite and therefore, unless she makes an application in that regard, there may not be any justification to pass such an order. This is what the Supreme Court precisely observed that though the right of the wjfe to get interim maintenance fructifies on the date the case is instituted, it is not necessary that in all cases maintenance should be paid from that date. 9. Adverting to the present case, it would appear that the suit for dissolution of the marriage was filed on 19,6.93 while the application for maintenance under Section 24 of the Act was filed on 4.4.94. No case is made out to make the order effective from the date of the filing of the case i.e. 19.6.93. In my opinion, while the wife is entitled to grant of maintenance pendente lite from the date of institution of the case against her, ordinarily, she should be allowed maintenance from the date of application under Section 24 of the Act by her. As no special case is made out to warrant such grant from an earlier date, or the date of institution of the case, that part of the impugned order cannot be said to be in accordance with law. 10. Coming to the question of quantum of maintenance, I find sufficient force in the submission of the counsel for the petitioner that in the absence of any evidence regarding the actual income from the landed property, allegedly possessed by the petitioner, the court could not have fixed the amount @ Rs. 3000/- per month. In my view, while maintenance is payable every month, there can be no justification to pay litigation expenses also every month. Ordinarily, litigation expenses are paid in lumpsum; no doubt, where the litigation protracts, then there may be justification to pass another order. Litigation expenses are paid to relieve the wife of the burden she. has to suffer on account of the litigation which has been forced on her. Such payment has to have nexus with the expenses she has to bear. Any order to pay litigation expenses also every month, like maintenance, would be arbitrary and against the object underlying the Section. 11. has to suffer on account of the litigation which has been forced on her. Such payment has to have nexus with the expenses she has to bear. Any order to pay litigation expenses also every month, like maintenance, would be arbitrary and against the object underlying the Section. 11. In the ordinary course, I should have remanded the case to the court below for fresh consideration after setting aside the impugned order, but considering the fact that such a course may cause further delay which may not be in the interest of the wife, I have considered it appropriate to pass final order in this regard at this stage itself. 12. In the facts and circumstances of the case, I am of the view that ends of justice would be served by directing the petitioner to pay maintenance @ Rs. 1000/- per month to the wife-opposite party and, further, to pay litigation expenses quantified at Rs. 5000/-. While the amount of maintenance shall be payable from the date of application under Section 24 i.e. 4.4.94, the litigation expenses shall be paid as lumpsum payment without prejudice to the right of the wife to pray for further payment if the litigation protracts for a long time. 13. With the. above modification in the impugned order dated 7.12.1998, this civil revision is allowed in part.