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2002 DIGILAW 66 (KAR)

CAROLINE PERPETUA EARDLEY v. GLENN B. EARDLEY

2002-01-25

T.S.THAKUR

body2002
TIRATH S. THAKUR, J. ( 1 ) THIS civil revision petition is directed against an order passed by civil Judge (Senior Division) and Principal Judicial Magistrate First class, K. G. F. , on an application under Section 36 of the Indian Divorce act, 1869 seeking interim maintenance for the petitioner-wife. The application has by the said order been dismissed on the ground that the appellant-wife is in a position to maintain herself. ( 2 ) THE parties are Christians by faith. They appear to have tied the knot in the year 1984 and raised three children out of the wedlock, all of whom are females. The respondent-husband is a driller in an oil rig and appears to be in the employment of a company based in Abu Dhabi. He has in a petition under Sections 10 and 11 of the Indian Divorce Act, 1869, sought dissolution of marriage on the ground that the wife has committed adultery since the solemnisation of the marriage. The wife has denied the allegations and is resisting the prayer for divorce. The matter has remained pending before the Trial Court since the year 1995. ( 3 ) DURING the pendency of the above proceedings, LA. No; XIII was filed by the petitioner-wife in March 2000 seeking alimony pendente lite at the rate of Rs. 20,000/- per month besides litigation expenses of Rs. 25,000/ -. The application stated that the husband was employed as a driller with a monthly salary of Rs. 1 lakh. Besides, he was publishing a newspaper in the name of "k. G. F. Update" and earning a sum of Rs. 10,000/- from the same. He was, according to the application, the owner of a building worth more than Rs. 50 lakhs, besides a Toyota car valuing more than Rs. 12 lakhs. The wife alleged that she had no means or source of income to maintain herself in keeping with her status and that she deserved maintenance at the rate of Rs. 20,000/- per month from the husband. ( 4 ) THE application was opposed by the respondent-husband inter alia on the ground that the wife was employed as an Office Assistant in M/s. Ramba Hydrogen Private Limited, for the past 5 years and was drawing a monthly salary of Rs. 2,500/ -. 20,000/- per month from the husband. ( 4 ) THE application was opposed by the respondent-husband inter alia on the ground that the wife was employed as an Office Assistant in M/s. Ramba Hydrogen Private Limited, for the past 5 years and was drawing a monthly salary of Rs. 2,500/ -. The Trial Court has by the order impugned in this revision petition rejected the prayer for maintenance on the ground that the wife was drawing a monthly salary of a sum of Rs. 2,500/- and that she did not require any further amount towards maintenance during the pendency of the divorce proceedings. Aggrieved, the wife has filed the present revision petition as already noticed earlier. ( 5 ) APPEARING for the petitioner, Mr. A. K. Mohanakrishnan argued that the view taken by the Trial Court was wholly unsustainable. He submitted that the mere fact that the wife was earning a paltry sum of rs. 2,500/- per month was no reason for the Court to decline the award of interim maintenance, having regard to the financial position of the respondent-husband. He submitted that the respondent-husband was admittedly drawing a monthly salary of a sum of Rs. 50,000/- besides a sum of Rs. 2,000/- to Rs. 3,000/- which he was earning every month from the newspaper which he was publishing. He had according to Mr. A. K. Mohanakrishnan, no one except himself and the children to feed and could therefore without any difficulty spare a reasonable amount for the maintenance of the petitioner, who was earning no more than a sum of rs. 2,500/- as salary per month. ( 6 ) ON behalf of the respondent-husband, Mr. Aswathnarayan, argued that the petitioner-wife was living in adultery and was therefore disentitled to any relief whatsoever from this Court towards maintenance. He placed reliance upon an affidavit said to have been sworn by the petitioner -wife in which she is alleged to have admitted her relationship with respondent 2 who was during the relevant period a Parish priest in k. G. F. Alternatively, he submitted that since the petitioner was in employment drawing salary, there was no justification for grant of any maintenance to her. It was urged that although the respondent-husband was employed as a driller in an oil rig in Abu Dhabi, yet his monthly salary was not more than Rs. 25,000/ -. It was urged that although the respondent-husband was employed as a driller in an oil rig in Abu Dhabi, yet his monthly salary was not more than Rs. 25,000/ -. He had with the said amount to support his daughters who were grown-up, apart from his aged parents one of whom was living in Mumbai. ( 7 ) SECTION 36 of the Indian Divorce Act, 1869, entitles the wife to present a petition for alimony pending the disposal of the suit filed under the Act whether such a suit is instituted by the husband or wife. It empowers the Court to make an order on the husband for the payment of alimony to the wife on being satisfied of the truth of the statements contained in the petition seeking such alimony. Proviso of Section 36 restricts the amount of alimony to l/5th of the average salary of the husband for three years next preceding the date of the order and directs that such alimony shall continue until the decree is made absolute or is confirmed as the case may be. That the petitioner-wife was entitled to make an application under Section 36 of the Act for alimony was not and could not be disputed in the light of specific provisions contained in section 36, the crucial question, however, is whether the wife is entitled to a direction for payment of such alimony. According to the respondent- husband, she is not as she is living in adultery. There is no doubt allegations about the petitioner-wife having indulged in adultery not only in the petition for divorce filed by the husband but also in the course of the present proceedings for payment of alimony. Those allegations are sought to be supported by an affidavit allegedly sworn by the wife and the testimony of one of the daughters who appears to be supporting the version that the petitioner-wife and respondent 2 had an illicit intimacy with each other. All told, these allegations are for the present only allegations. A finding as to the correctness or otherwise of these allegations is yet to be recorded by the Court below. Superadded to this is the fact that even the wife has made serious allegations about the respondent-husband and his character. All told, these allegations are for the present only allegations. A finding as to the correctness or otherwise of these allegations is yet to be recorded by the Court below. Superadded to this is the fact that even the wife has made serious allegations about the respondent-husband and his character. The wife inter alia accuses the respondent-husband to be a hedonist and a lascivious lecher who has forced his wife, the appellant to have immoral relationship with his friends. She has referred to certain advertisements published by the respondent in the newspaper inviting uninhibited women and couples for close friendship. It is not possible to accept one or the other of the versions at this stage of the proceedings for purposes of granting or denying to the wife the maintenance which she may otherwise be entitled to. Even the Trial Court has not rejected the application filed by the wife on the ground that she is guilty of the alleged adultery. It is not therefore possible to do so in the present revision petition. The first limb of the argument opposing the grant of alimony therefore fails and is hereby rejected. ( 8 ) THE next and the only other question that requires consideration is whether the wife is able to maintain herself so as to disentitle her to any alimony pendente lite. The factual position in this regard is not in serious dispute. It is admitted by the petitioner-wife that she is working as an Office Assistant at Bangalore for some time past and drawing a salary of Rs. 2,500a. According to Mr. Mohanakrishnan, she has to commute between K. G. F. and Bangalore to attend to her duties, which eats into a substantial part of that amount towards bus fare. The husband, on the other hand, is gainfully employed, drawing a salary of a sum of rs. 1 lakh per month and leading a lavish lifestyle. That the respondent- husband's monthly salary is about Rs. 50,000/-, is evident from the following statement recorded by the Trial Court:"it is true that I am the owner of Toyota Car bearing No. KA-08-M-345, I brought it from UAE. I brought it by spending four lakhs approximately. I own a house in K. G. F. , my monthly salary is about Rs. 50,000/ -. I am the owner of the newspaper by name "k. G. F. Update". About Rs. 2,000/- to Rs. I brought it by spending four lakhs approximately. I own a house in K. G. F. , my monthly salary is about Rs. 50,000/ -. I am the owner of the newspaper by name "k. G. F. Update". About Rs. 2,000/- to Rs. 3,000/- is the income from the newspaper but, the same will be spent for the workers. It is not true to suggest that I am earning about Rs. 40,000/- per month from the newspaper". ( 9 ) MR. Aswathnarayan made a valiant attempt to explain the above admission and argued that the salary mentioned by the respondent is not the true income which he is receiving. According to the learned counsel, the salary mentioned in the above statement is for two months and not for one month as the respondent works only for a period of one month on the rig and returns to the main land for the next month where he is not paid any salary. There is, however no material to suggest any such arrangement. The admission of the petitioner is unequivocal insofar as his salary being Rs. 50,000/- per month is concerned. If his income was less than the said amount, nothing prevented him from making a statement to that effect and explaining the circumstances in which he was employed to receive a lesser amount. It is, therefore, reasonable to hold that the respondent's income is Rs. 50,000/- to Rs. 53,000/- per month. ( 10 ) THE question then is whether the petitioner would in the light of the respondent's income be entitled to claim any maintenance from him. According to the Trial Court, she is not because she is receiving a salary which is enough for her survival. The Court has taken the view that maintenance is not for leading a luxurious lifestyle but for bare subsistence. Neither of the two extremes can, however, hold good. The wife is not disentitled to maintenance just because she is somehow subsisting. So also she would not be awarded maintenance just because she wants to lead a luxurious lifestyle. Indeed what may appear to be luxury for some may be bare necessity for the other. The true test appears to be whether the wife is reasonably provided for keeping in view the standard of living which the husband and his family are leading. Indeed what may appear to be luxury for some may be bare necessity for the other. The true test appears to be whether the wife is reasonably provided for keeping in view the standard of living which the husband and his family are leading. A broad comparison between the living standard of the husband and the wife having regard to their respective economic condition would help in determining whether the wife is entitled to maintenance. If that be so, the receipt of Rs. 2,500/- per month by the wife as salary does not present a fair picture. The wife no doubt is subsisting with that amount but the husband cannot argue that she must continue doing so, his capacity to provide a more comfortable lifestyle for her notwithstanding. A reasonable amount shall, therefore, have to be awarded to supplement her income. The question is as to what that amount should be. According to mr. Aswathnarayan, a sum of Rs. 1,000/- from the date of this order should suffice and meet the ends of justice. This, he submits is so because the husband has 3 daughters and old parents to support. I do not think so having regard to the income of the husband and the kind of life which the family was leading before they split. If l/5th of the husband's income is the optimum, that can be awarded to the wife, her claim may go up to a sum of Rs. 10,000/- or so per month. Having regard, however, to the fact that the husband has 3 daughters who are grown-up and studying besides his own parents to maintain and having regard also to the fact that the wife is earning a sum of Rs. 2,500/- per month on her own, an additional sum of Rs. 2,500/- per month, would in my opinion, meet the ends of justice. This would ensure that the wife has a monthly income of Rs. 5,000/- to lead what may not be a luxurious lifestyle but a life that is reasonably comfortable. ( 11 ) THIS civil revision petition accordingly succeeds and is hereby allowed. The impugned order shall stand set aside, and I. A. No. XIII allowed to the extent that the respondent-husband shall pay to the petitioner-wife a sum of Rs. 2,500/- per month as maintenance from 1st of April, 2000 onwards till the conclusion of the proceedings. ( 11 ) THIS civil revision petition accordingly succeeds and is hereby allowed. The impugned order shall stand set aside, and I. A. No. XIII allowed to the extent that the respondent-husband shall pay to the petitioner-wife a sum of Rs. 2,500/- per month as maintenance from 1st of April, 2000 onwards till the conclusion of the proceedings. In addition, the wife shall also be entitled to a sum of Rs. 5,000/- towards legal expenses. While the current maintenance shall be paid by 10th of every month succeeding the month for which the payment is made, the arrears shall be paid within 3 months. Since the matter has remained pending before the Trial Court for nearly 7 years, I direct that the Trial Court shall expedite and dispose of the same within an outer limit of 6 months from today. --- *** --- .