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2006 DIGILAW 295 (HP)

DIGVIJAY SINGH v. MANJU SHARMA

2006-09-16

DEEPAK GUPTA

body2006
JUDGEMENT Deepak Gupta, J. (Oral).: This application under Section 24 of the Hindu Marriage Act has been filed by the respondent-wife for grant of maintenance pendente lite and litigation expenses. 2. The allegations made in the application are that the appellant-husband is employed as a Physical Education Teacher in Government Middle School, Disha and is getting salary of more than Rs.10,000/- per month and the father of the appellant is also employed as Block Primary Education Officer and they are having agriculture land in the village. The husband is alleged to be living in a joint family with his father and his brother is running a shop at Kandaghat. It is also alleged that the appellant is earning huge income from his property by selling tomatoes, peas and other vegetables. It has been stated by the respondent-wife that she is working as JBT and her salary is Rs.5,500/- per month. As such, the respondent-wife has prayed that maintenance pendente lite and litigation expenses be awarded in her favour. 3. In reply, the appellant-husband, submitted that the salary of the respondent-wife has her own income. Mr. Parkash Thakur, learned counsel for the appellant-husband, submitted that the salary of the respondent-wife is Rs.5,738/- per month, which fact has not been denied by the learned counsel for the respondent-wife. He submits that, therefore, the wife is possessed of sufficient independent means to look after herself and, as such her case does not fall under Section 24 of the Hindu Marriage Act. It is admitted that the appellant-husband is working as Physical Training Instructor. It is also admitted that his father is working as Block Primary Education Officer. It is stated that the land of the appellant-husband is joint with his family. It is denied that his brother is running a Computer Centre at Kandaghat. It is submitted that the brother of the appellant-husband is dependent on him. It is also submitted that the income from the land is very meagre and barely sufficient to meet the expenditure incurred on the agricultural purposes. 4. Mr. Parkash Thakur, learned counsel for the appellant-husband, also submitted that since the respondent-wife did not file an application before the trial Court for grant of maintenance pendente lite and litigation expenses, she cannot be permitted to agitate this question in appeal. 5. Section 24 of the Hindu Marriage Act, 1955, reads as follows: "24. 4. Mr. Parkash Thakur, learned counsel for the appellant-husband, also submitted that since the respondent-wife did not file an application before the trial Court for grant of maintenance pendente lite and litigation expenses, she cannot be permitted to agitate this question in appeal. 5. Section 24 of the Hindu Marriage Act, 1955, reads as follows: "24. Maintenance pendent elite and expenses of proceedings- Where in any proceedings 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 proceedings, 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." A perusal of this Sections shows that the Court is entitled to award maintenance pendente lite in any proceedings under the Act. The appeal is a separate proceeding and there is no bar to granting maintenance in the appeal. I am unable to accept the contention of Mr. Parkash Thakur that since the wife has not asked for the maintenance pendente lite during the pendency of the proceedings before the trial Court she is debarred from doing so at the appellate state. This argument does not stand the test of reasoning and is not supported by any judicial pronouncement. In fact, the provisions of Section 24 of the Hindu Marriage Act, 1955, are very clear that each proceeding is separate. 6. The more important question, which arises for determination, is that since the wife has an independent source of income and is admittedly working as a teacher and is getting salary of Rs.5,700/- per month, therefore, can it said that she has no independent source of income, sufficient for her support. 7. Mr. Romesh Verma, learned counsel appearing on behalf of the respondent-wife, relied upon a judgment of the Punjab and Haryana High Court, reported in Vol.128 (2001(2) Punjab Law Reporter 713, v. Usha Rao versus M.L.N. Rao, wherein the wife was working as doctor having a salary of Rs.16,474/-. Per month. 7. Mr. Romesh Verma, learned counsel appearing on behalf of the respondent-wife, relied upon a judgment of the Punjab and Haryana High Court, reported in Vol.128 (2001(2) Punjab Law Reporter 713, v. Usha Rao versus M.L.N. Rao, wherein the wife was working as doctor having a salary of Rs.16,474/-. Per month. The Court came to the conclusion that the total income of the husband from all sources was not less than Rs.2,00,000/- per month. In these circumstances, the Court held as follows: "10. To my mind, the work "support" should not be so narrowly interpreted. The work "support" does not mean bare existence. It means that the spouse be in so much comfort as the other spouse is in. section 24 cannot, of course, be intended to bring about arithmetical equality between the two." Thereafter, the wife was awarded maintenance pendente lite at the rate of Rs.2,000/- per month and Rs.5,000/- was granted to her as expenses of the proceedings. 8. Reliance is also placed on the judgment of the Apex Court in Rita Dutta and another versus Subhendu Dutta, (2205) 6 Supreme Court Cases 619. In this case the husband was working in a well known firm of architects and later started his own constancy firm and the allegation was that the income of the husband was atleast Rs.1,00,000/- per month. The Apex Court came to the conclusion that the husband has not disclosed his true income since he has not produced the balance sheets or. his profit and loss accounts. The business of the wife was not as big and lucrative equivalent to that of the husband. The Apex Court awarded Rs.1,500/- to the wife in addition to the amount awarded to the children. However, there is no specific discussion on the point whether the wife, who has sufficient income to maintain herself, is entitled to maintenance. 9. On the other hand, Mr. Parkash Thakur, learned counsel appearing on behalf of the appellant-husband, relied upon the judgment of the Rajasthan High Court in Ram Pal versus Smt. Nisha, AIR 1984 Rajasthan 204, wherein the Rajasthan High Court came to the conclusion that since the wife had separate source of income sufficient to maintain herself, therefore, she is not entitled to any maintenance pendent elite from the husband. He also relied upon a judgment of the Madras High Court reported in 2004(1) HLR 124, Manokaran alias Ramamoorthy versus M. Devaki, wherein the Madras High Court observed as under: "(5)...... The above provision would show that for grant of maintenance pendente lite, the party should not have sufficient independent income for her/his support. In other words, if it is found that the applicant has found sufficient income for his/her support, no amount can be allowed as maintenance pendent elite as per Sec. 214 of the Act....." 10. The law, thus, is very clear. A plain reading of the Section as well as the judicial pronouncements cited before this Court makes it amply clear that to claim the maintenance pendente lite under Section 24 of the Hindu Marriage Act, 1955, the spouse who moves the application must show that she or he has no sufficient income to maintain and support herself or himself. Obviously, the word "support" visualized the application spouse enjoying the same status as that of the respondent spouse. Therefore, where there are great disparities in the income of the husband and the wife, the Court may have to bring about a balance between the two by awarding maintenance pendente lite to the spouse who is earning a lesser amount. However, in my humble opinion, this is not to be done on mathematical basis. The purpose is not that if the husband is earning Rs.10,000/- and the wife is earning Rs.5,000/- then both are to be brought to the level of Rs.7,500/-. That is not the purpose of Section 24. The purpose of Section 24 is to provide immediate relief to the spouse who is unable to support or maintain himself or herself. 11. In the present case, what has been proved on record is that the husband is earning Rs.10,000/- per month as salary and he may have some agricultural income. In para-2 of the application, the wife has stated as follows: "That the sufficient has got no independent source of income. She is unable to defend herself or want of sufficient and independent source of income." This submission is obviously incorrect to the extent of her having no independent source of income since in the next paragraph she states that her income is Rs. 5,500/- per month. She is unable to defend herself or want of sufficient and independent source of income." This submission is obviously incorrect to the extent of her having no independent source of income since in the next paragraph she states that her income is Rs. 5,500/- per month. In the entire pleadings there is no averment that the wife is unable to maintain herself or support herself as per the status of the husband. There is no such allegation in the present application. In my opinion, the income of the wife i.e. Rs. 5,783/- per month is sufficient to support and maintain herself. The disparity of the income between the wife and the husband is not so large as to enable this Court to say that the wife is unable to maintain herself as per the status of the husband. 12. Mr. Romesh Verma, learned counsel appearing on behalf of the respondent-wife, submits that the respondent-wife is entitled for litigation expenses. Since I have come to the conclusion that the wife has independent income sufficient for her support and is not entitled for maintenance pendente lite, she shall also not be entitled to litigation expenses. 13. In view of the above discussion, the application is dismissed with no orders as to costs.