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2003 DIGILAW 473 (RAJ)

Aruna Bohra v. Bhawani Shankar Nandwana

2003-04-01

K.S.RATHORE, S.K.KESHOTE

body2003
JUDGMENT 1. - This Appeal is filed by the appellant wife under Section 19 of the Family Court Act read with Section 28 of the Hindu Marriage Act against the judgment and decree dated 11.9.2001 of the learned Judge, Family Court No. 2, Jaipur in Case No. 44/1998. Under this judgment and decree the divorce petition petition filed by the respondent husband Bhawani Shankar Nandwana was granted. 2. The appeal came up for preliminary hearing in the court on 16th of October, 2001. The court was pleased to issue notice to the respondent husband to show cause as to why the appeal should not be admitted and disposed of at that stage. Notice on the stay application was also issued to the respondent husband. The record was called for. The operation of the judgment and decree of the learned Judge, Family Court No. 2, Jaipur has been stayed by the court. 3. The appeal is placed on the board on the application filed by the appellant wife under Section 24 of the Hindu Marriage Act, 1956 for grant of interim maintenance as well as the litigation expenses. 4. The appellant wife has prayed for a direction to the respondent husband to pay to her Rs. 6000/- (Rs. six thousand) per month as interim maintenance and Rs. 15000/- (Rs. fifteen thousand) in lump sum towards the litigation expenses. This interim maintenance was claimed from 11th of September, 2001. This application is presented on 5th of November, 2001. The reply to this application has been filed by the respondent husband. 5. Heard the learned counsel for the parties, perused the application, reply thereto filed by the respondent husband and further the compromise entered into between the parties and the order of the learned Judge, Family Court No. 2, Jaipur dated 4th of March, 1997 passed on the compromise. 6. The respondent husband is in Government service in the Law Department of the State of Rajasthan. He is holding the post of 'Vidhi Rachnakaar'. In para no. 3 of the application it is stated that he is getting salary of Rs. 7870 to 14720 per month from the State Government. It is urged by the appellant wife that she has no source of livelihood and unable to maintain herself. 7. In the reply to the application the respondent husband denied the fact that he is getting Rs. 7870 to Rs. 7870 to 14720 per month from the State Government. It is urged by the appellant wife that she has no source of livelihood and unable to maintain herself. 7. In the reply to the application the respondent husband denied the fact that he is getting Rs. 7870 to Rs. 14720 per month as salary. The case of the respondent husband in the reply is that he is getting Rs. 6583/- per month as salary. It is not fair on the part of the respondent husband not to enclose to this reply the pay slips of monthly salary. In para no. 2 of the reply it is stated that the pay slip for the month of March, 2003 shall be kept ready for the perusal of the court during the course of arguments. One of the pay slips has been shown but it is incumbent upon the respondent husband to produce the document on record. Deductions from the salary of the employee are there but while determining the question as to what amount is to be awarded to the wife as interim maintenance under Section 24 of the Hindu Marriage Act for the purpose of calculation of the income of the respondent husband, only those deductions which are compulsory, can be excluded. 8. Having gone through the reply to the application, it is difficult to accept that the respondent husband, who is in Government service holding the post of Vidhi Rachanakaar, is receiving only Rs. 6501/- per month as salary. Be that as it may for the purpose of deciding this application it is taken to be the income of the respondent husband. 9. The learned counsel for the respondent husband by making reference to the compromise between the parties entered into before the learned Judge. Family Court No. 2, Jaipur on 4th of March, 1997; submitted that in the trial court by consent Rs. 800/- was given to the appellant wife as interim maintenance. This compromise though was there so it has its effect during the pendency of the proceedings in the family court. Otherwise also it is not final and conclusive on this point. At one point of time even if the appellant wife agreed to take Rs. 800/- per month as interim maintenance it is always subject to further consideration and enhancement taking into consideration the income of the respondent husband. Otherwise also it is not final and conclusive on this point. At one point of time even if the appellant wife agreed to take Rs. 800/- per month as interim maintenance it is always subject to further consideration and enhancement taking into consideration the income of the respondent husband. This way of the dealing with these matters by the Family Court is difficult to appreciate. In the Family Court the Advocates do not appear and thus the spouses are not properly represented and advised. It is the duty of the Presiding Officer of the Family Court to see that the compromise entered into between the husband and wife re the interim maintenance is just and reasonable. Having gone through this compromise we are constraint to state that the Presiding Officer of the Family Court has not cared to look into it and verified it in a routine and casual manner, which is not expected from him and is difficult to appreciate. Heavy duty and responsibility fall on the Judge of the Family Court and he has to be very cautious, careful and vigilant in such matters so that this weaker sex may not be exploited at the end of the husband respondent. 10. Interim maintenance under section 24 of the Hindu Marriage Act ordinarily are not permissible to be fixed by the Family Court on the basis of this alleged compromise. 11. From the order of the Family Court granting thereunder interim maintenance @ of Rs. 800/- per month, it is a meagre sum and hardly sufficient to meet out the expenses or bare necessity of the life of the appellant wife. This compromise, thus, has no relevance for the decision on this application. It is not a charity which is given by the husband to the wife. It is not only a legal duty but a pious obligation of the husband to maintain his wife so long this relation is continue and the marriage is not dissolved by a decree of divorce. After divorce the husband is not relieved of his this legal duty and pious obligation to maintain the wife and reference here may have to the provisions of Section 25 of the Hindu Marriage Act, 1956. After divorce the husband is not relieved of his this legal duty and pious obligation to maintain the wife and reference here may have to the provisions of Section 25 of the Hindu Marriage Act, 1956. It is really shocking that the learned Judge, Family Court No. 2, Jaipur, though passed the decree of divorce in favour of the respondent husband but did not care to pass the order for permanent alimony. That further goes to show how casually and cursory these matters are being taken by the Presiding Officers of the Family Courts. 12. It is difficult to accept that after 4th of March, 1997 there is no change in the circumstances i.e. neither there is any hike in the prices of the essential commodities nor there is any change in the pay etc. One of the important circumstance is there that after 4th of March, 1997 certainly the pay of the husband respondent should have been increased. It is higher than that what he was getting on 4th of March, 1997. The Vth pay Commission's recommendations were accepted by the State Government and same were given effect to from 1st of September, 1996. After acceptance of the recommendations not only the pay of the respondent husband has been increased but also he would have received arrears of fixation of his pay in the revised pay scale. In the reply to the application the respondent husband came with the case that he has responsibility to maintain his old and widow mother and discharge and fulfil other pious and social obligations of sister and other relatives. So far as to the plea to discharge and fulfil the other pious and social obligations of sister and other relatives is concerned, it does not stand on higher pedestal than the legal duty and pious obligation of maintaining his wife. Thus while determining and fixing the per month sum of maintenance to be awarded to-wife we have to keep in mind this fact that the husband depends only on the salary and he has responsibility of maintaining his old widow mother also. Thus there are three members in the family, namely, the respondent husband, his old widow mother and the appellant wife and, there should be a fair and equal distribution of his income amongst themselves. 13. Thus there are three members in the family, namely, the respondent husband, his old widow mother and the appellant wife and, there should be a fair and equal distribution of his income amongst themselves. 13. The respondent husband has utterly failed to show and it is also not disputed by his learned counsel that the appellant wife has no source of livelihood and to maintain herself. 14. Taking into consideration all these aspects, facts and circumstances of the case, we grant and fix at this stage the interim maintenance of the appellant wife to a sum of Rs. 2000/- (Rs. two thousand only) per month. Accordingly, the respondent husband is directed to pay to the appellant the interim maintenance Rs. 2000/- per month, effective from the date of filing of the application i.e. 5th of November, 2001.RE THE CLAIM OF LITIGATION EXPENSES 15. The appellant wife has claimed Rs. 15000/- in lump for the litigation expenses.The Constitution of India postulates a Society in high socio economic and legal justice is available to all on the basis that they are equal. To enforce the constitutional mandate of equity before the law, the State has to ensure access to justice. That is to say that the.opportunity for securing justice are not denied to any citizen by reason of economic or other disability. The reference here may have to the Article 39A of the Constitution. This Article in the Constitution of India was inserted by the Constitution Amendment Act, 1976 with effect from 3.1.1977. It reads as under : "39A. Equal justice and free legal aid.....The State shall secure that the operation of the legal system promotes justice, on a basis of equal opportunity, and shall, in particular, provide free legal aid, by suitable legislation or schemes or in any other way, to ensure that opportunities for securing justice are not denied to any citizen by reason of economic or other disabilities." 16. The Legal Services Authorities Act, 1987 (hereinafter referred to as "the Act of 1987") was enacted by the Parliament in the 38th year of Republic of India to constitute Legal Services Authorities to provide free and competent legal services to the weaker sections of the society to ensure that the opportunities for securing justice are.not denied to any citizen by reason of economic or other disabilities and to organise Lok Adalats and to secure that the operation of the legal system promotes justice on a basis of equal opportunity. The Act of 1987 was brought into force on 9th of November, 1995 is a tribute to the framers of the Constitution, it furthers their endeavour to establish that there would be equity before the law and a vibrant and fair justice delivery system that would ensure it. It is for the legal functionaries to achieve the goal set out in the Act of 1987 so that meaningful assistance is given to those who are not in a position to pursue legal remedies on account of poverty, want of knowledge or other such handicappedness. 17. Legal service is defined in clause (c) of sub-section (1) of Section 2 of the Act of 1987. It includes the rendering of any service in the conduct of any case or other legal proceeding before any court or other authority or tribunal and giving of advise on any legal matter. 18. 'Case' is defined in Clause (a) of Section 2 of the Act, 1987 which includes a suit or any proceeding before a court. 'Court' is defined in Clause (aaa) of Section 2 of the Act, 1987 which means a civil, criminal or revenue court and includes any tribunal or any other authority constituted under any ; law for the time being in force to exercise judicial or quasi-judicial functions. 19. Having a glance on the provisions of the Act, 1987 we are satisfied that this appeal is a case before the court and the provisions of that Act, 1987 are applicable to this matter.Section 12, in Chapter IV, of the Act, 1987 lays down the criteria for giving legal services. 19. Having a glance on the provisions of the Act, 1987 we are satisfied that this appeal is a case before the court and the provisions of that Act, 1987 are applicable to this matter.Section 12, in Chapter IV, of the Act, 1987 lays down the criteria for giving legal services. Every person, who has to file or defend a case, shall be entitled to legal services under the Act, if that person is, (a) a member of a Scheduled Caste or Scheduled Tribe; (b) a victim of trafficking in human beings or began as referred to in article 23 of the Constitutions; (c) a woman or a child; (d) a mentally ill otherwise disabled person; (e) a person under circumstances or undeserved want such as being a victim of a mass disaster, ethnic violence, caste atrocity, flood, drought earthquake or industrial disaster; or (f) an industrial workman; or (g) in custody, including custody in a protective home within in the meaning of clause (g) of section 2 of the Immoral traffic (Prevention) Act, 1956 or in a juvenile home within the meaning of clause (j) of section 2 of the Juvenile Justice Act, 1986 in a psychiatric hospital or 5 psychitric nursing home within the meaning of clause (g) of section (2) of the mental Health Act, 1987; or (h) in receipt of annual income less than rupees nine thousand or such other higher amount as may be prescribed by the State Government, if the case is before a court other than the Supreme Court andless than rupees twelve thousand or such other higher amount as may be prescribed by the Central Government, if the case is before the Supreme Court." 20. Under Section 12 of the Act, 1987 a woman is entitled to legal services without any rider meaning thereby she is entitled to the legal services even if she is in a position to bear the expenses thereof. 21. Section 8A of the Act, 1987 provides that the State Authority shall constitute a Committee to be called the High Court Legal Services Committee for every High Court for the purpose of exercising such powers and performing such functions as may be determined by regulations made by the State Authority. 22. 21. Section 8A of the Act, 1987 provides that the State Authority shall constitute a Committee to be called the High Court Legal Services Committee for every High Court for the purpose of exercising such powers and performing such functions as may be determined by regulations made by the State Authority. 22. Section 13 and more particularly sub-section (1) thereof; of the Act of 1987 provides that a person who satisfy all or any of the criteria specified in Section 12 shall be entitled to receive legal services provided that the concerned Authority is satisfied that such person has a prima facie case to prosecute or to defend. 23. It is not the case of the appellant wife that she approached to the High Court Legal Services Committee and she has not been found entitled to legal services or she has been denied the legal services. 24. The State under the Act, 1987 has to provide legal services to the persons enmerated in Section 12 of the Act, 1987 and the appellant wife falls in Clause (c) of Section 12 of the Act, 1987. She is entitled for the legal service, how far it is justified on her part to put heavy burden of litigation expenses on the poor respondent husband. It is true that under Section 24 of the Hindu Marriage Act, 1956 the court is empowered to direct the husband to pay the amount of litigation expenses to the wife as fixed but that provision is to be considered, read and applied in the light of the provisions of the Act, 1987. A qonjoint reading of the provisions of these two Acts leaves no doubt whatsoever in our mind that in a case where wife lodge claim for the litigation expenses under Section 24 of the Hindu Marriage Act, 1956, she may not be granted litigation expenses keeping in view her right and entitlement of legal services under the Act, 1987. In case that-way, as what it is prayed for by the wife, the court directs for payment of litigation expenses against the husband, it shall result, in unnecessary burdening him in a case where the Government is providing legal services to a woman. The matter would have been different where the provisions of this Act, 1987 were not applicable or this Act, 1987 would not have been there. The matter would have been different where the provisions of this Act, 1987 were not applicable or this Act, 1987 would not have been there. But after coming into force of this Act, 1987 the wife is entitled for legal services i.e. she has a legal right 'to have legal services at the cost of the State Government and thus this heavy burden of litigation expenses cannot be put on the shoulder of the husband. The Court is not bound to order for grant of litigation expenses to the wife against the husband on the application filed by the wife under Section 25 of the Act, 1956. In case where under Section 13 of the Act, 1987 the Rajasthan High Court Legal Services Committee, on being approached by the wife, is refused to provide her legal services, the court may order and direct the husband to pay a reasonable sum towards the litigation expenses to the wife. But it is not the case of the appellant wife. The appellant wife and respondent husband are not having good relations and certainly may use the provisions of Section 24 of the Hindu Marriage Act, 1956 as a tool to harass the husband in manifold ways. She engages a counsel and settle heavy fees, may be beyond the capacity to pay the same by the husband. The litigation expenses may go on till the matter is finally decided. The woman, in view of the provisions of Section 12 of the Act, 1987 is entitled for legal services, the poor husband cannot be saddled with the amount of expenses of litigation to be incurred by the wife in the matrimonial dispute. In a given case of matrimonial dispute wife may get litigation expenses but thousand and thousand of cases where a woman litigant files the case, though she is not in a position to bear the litigation expense, how she managing, arrange and bearing the same, is a matter of experience and realization. But it is unfortunate that almost all are not coming for enforcement of their this legal right under the Act, 1987. One of the reasons may be that they are not properly guided by the person to whom they first approach. The Members of the Bar are the Officers of the Court. But it is unfortunate that almost all are not coming for enforcement of their this legal right under the Act, 1987. One of the reasons may be that they are not properly guided by the person to whom they first approach. The Members of the Bar are the Officers of the Court. The implementation and enforcement of the Act, 1987 is in the hands of the High Court and the Member of the Bar to see that the benefits of this benevolent piece of legislation reach to the beneficiaries thereof. For this both, the members of the Bench and the Bar are equally responsible and concerned. In the case of the litigant falls under any of the categories enumerated in Section 12 of the Act, 1987, the approach of the member of the Bar ought to have been to inform him of his/her this legal right. It is a different matter that the litigant may or may not avail of the benefits. The duty of the courts is also there to certain extent in the case of the litigants of this class that when such matter comes in the court, he or she may be made known of his/her this right of legal services. 25. Where despites of information and made known of his/her this legal right he/she does not desire to avail benefit of the same it is expected from the concerned advocate to put a note to this effect in the case file to be presented in the court. The court when the matter first comes before it to inform to the litigant of his/her this legal right and to ascertain as to whether he/she is desirous to avail of the same or not. Where he/she expresses his/her desire to avail of his/her this legal right, the matter be sent for examination to the authority/committee concerned. Where he/she does not desires to avail of his this right the court may proceed with the matter. This way in such matter the court would have proceeded and this exercise is undertaking it would not have been necessary for it to consume its valuable and precious judicial time in deciding such an application. Unnecessary court work is increased in a case where the respondent wife is entitled for legal services under the Act, 1987. This way in such matter the court would have proceeded and this exercise is undertaking it would not have been necessary for it to consume its valuable and precious judicial time in deciding such an application. Unnecessary court work is increased in a case where the respondent wife is entitled for legal services under the Act, 1987. This time better could have been utilised to decide other urgent, old matters or matters of senior citizen. Unless it is done honestly, faithfully and with all sincerity and responsibility, there cannot be real and effective implementation of the Act, 1987 and the benefit of this benevolent piece of legislation cannot reach to the beneficiaries thereof. 26. As a result of the aforesaid discussion, we do not find any justification for this claim made by the appellant wife for direction to the respondent husband to pay to her Rs. 15000/- towards the litigation expenses. Accordingly, this claim is rejected. 27. The appellant wife is entitled for legal services under the Act, 1987. It is still open to her to approach to avail of her this legal right of legal services, to the Rajasthan High Court Legal Services Committee so that she may relieve herself of burden of further litigation expenses. 28. The respondent husband is directed to pay to the appellant wife the amount of arrears of the interim maintainance within a period of two months from today. The respondent husband is further directed to pay to the appellant wife the amount of maintainance monthly forthwith effective from 1st of April, 2003. This application stands disposed of accordingly.Appeal disposed in terms as above. *******