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Patna High Court · body

2007 DIGILAW 412 (PAT)

Nilay Kant Mishra v. Vibha Mishra

2007-02-23

RAMESH KUMAR DATTA

body2007
Judgment 1. Heard learned counsel for the parties. 2. The petitioner seeks setting aside of the order dated 22.7.2005 passed by the Principal Judge, Family Court, Patna in Matrimonial Case No. 127 of 2002, by which the petitioner has been directed to pay Rs. 7000.00 by way of interim maintenance to his wife from the date of filing of the application, i.e., 16.8.2002 and further directed that the petitioner should deposit Rs. 10,000.00 in lump sum towards litigation cost. 3. The aforesaid matrimonial case was filed by the husband on various grounds. The opposite party, wife of the petitioner, appeared and thereafter filed an application under Sec.24 of the Hindu Marriage Act for maintenance pendente lite and also for the cost of litigation claiming Rs. 8,000.00 and Rs. 3,000.00 respectively per month for the same. Although there was some dispute between the parties as to the actual amount of salary that the petitioner was getting, the court below came to the conclusion that the petitioner was getting around Rs. 20,000.00 per month and disbelieved the contention of the petitioner that his wife is earning about Rs. 20,000.00 per month by tuition in Delhi and thereafter awarded Rs. 7,000.00 per month by way of ad interim maintenance from the date of filing of the petition by the wife of the petitioner on 16.8.2002 and further allowed a lump sum amount of Rs. 10,000.00 towards ad interim litigation cost. 4. Learned counsel for the petitioner submitted mainly on two aspects of the matter. Firstly, it was stated that the amount of Rs. 7,000.00 awarded to the wife of the petitioner was very much on the higher side considering that it was only at the stage of ad interim maintenance during the pendency of the litigation between the parties and the purpose of Sec.24 of the Hindu Marriage Act, 1955 which is not meant to lead to enrichment of one party at the cost of the other. It is further submitted that the petitioner is maintaining himself and his parents and the order is also contrary to the various decisions of this court and other courts for the award of ad interim maintenance under Sec.24 of the Act. 5. It is further submitted that the petitioner is maintaining himself and his parents and the order is also contrary to the various decisions of this court and other courts for the award of ad interim maintenance under Sec.24 of the Act. 5. The second grievance of the petitioner is that the said ad interim maintenance should not have been awarded from the date of filing of the petition on 16.8.2002, since the order itself has been passed on 22.7.2005 and thus a huge arrear amount running into more than Rs. 2.5 lakhs would have to be paid that would be unjustified in the facts and circumstances of this case. It is submitted by learned counsel for the petitioner that nothing has been brought on the record to show that debts were Incurred by the wife for maintaining herself during this period, more so, in view of the fact that she comes from a well to do family and has been staying with her parents and is being looked after very well in her parental home. 6. Learned counsel also sought to submit that the opposite party, being a Post-Graduate, was earning a substantial amount from tuition and she ought not to have been given so much amount as interim maintenance that too from the back date. In support of his aforesaid stand, learned counsel for the petitioner has relied upon various decisions of the various High Courts. 7. Learned counsel for the petitioner relies upon a decision in the case of Ivan Erasmus V/s. Mrs. Zena Erasmus: A.I.R. 1982 Allahabad 194, in paragraph no. 6 of which the court has held as follows: "Thus, although a court has the jurisdiction to order payment of maintenance pendente lite from the date of the making of an application for the same, the court should, before fixing the date from which the amount of maintenance pendente lite is to be paid, take a reasonable and practical view of things, rather than to act mechanically. One consideration in directing the payment of arrears is the indebtedness of the wife for necessities obtained by her during the pendency of such an application. In a case where it is not shown that the wife has to borrow money for obtaining the necessities of her life, an order for past maintenance pendente lite should not normally be passed. One consideration in directing the payment of arrears is the indebtedness of the wife for necessities obtained by her during the pendency of such an application. In a case where it is not shown that the wife has to borrow money for obtaining the necessities of her life, an order for past maintenance pendente lite should not normally be passed. In the present case there was nothing to show that the wife has run into debts for obtaining the necessities of life during the long period of 33 months which elapsed between the making of her application and passing of the order for maintenance pendente lite. It is regrettable that court proceedings even of this nature do some time take all this long to be disposed of by our courts, but even in a case where the blame for the delay could be put on a party, justice in these matters had to be remedial and not retributive; and in a case where the blame for the delay cannot be put on either of the parties but has to be put on the system, and must, therefore, be shared by the court also, a party cannot be loaded with an order for payment of a large sum of the kind that was passed in the case, simply because the wifes application for maintenance pendente lite took the long period of 33 months to be disposed of." 8. Learned counsel also sought to rely upon the principle of payment of 1/5th as a reasonable amount as interim maintenance. However, the said aspect of the matter cannot be considered as definitive for the present purposes, since the matter in the aforesaid decision arose out of the Divorce Act in which there was at the relevant time specific provision for payment of 1/5th of the family income as maintenance pendente lite to the wife. Learned counsel next relies upon a decision of the Bombay High Court in the case of Mrs. Myra Joseph Braz Dias V/s. Joseph Braz Dias: AIR 1992 Bombay 142 for the proposition that the interim maintenance should be fixed at 1/5th of the income of the husband. Learned counsel next relies upon a decision of the Bombay High Court in the case of Mrs. Myra Joseph Braz Dias V/s. Joseph Braz Dias: AIR 1992 Bombay 142 for the proposition that the interim maintenance should be fixed at 1/5th of the income of the husband. The said decision also cannot be blindly applied as the same also arose out of the Divorce Act and observations of the court in this regard are, in fact, contrary and even a suggestion has been made that the law needs to be amended in order to remove the said limitation in view of the social changes and status of women. 9. The next case cited by the learned counsel for the petitioner is the case of Dharamuchand V/s. Smt. Sobha Devi:A.I.R. 1987 Rajasthan 159. In the said case, it was observed by the Rajasthan High Court that the Rajasthan High Court has been adopting the rule of 1/5th of the husbands income, for the purpose of payment of alimony pendente lite but the same is not a hard and fast rule, the award of maintenance pendente lite is a matter of discretion of the court and this discretion is to be exercised on sound legal principle. In the said case, the court relied upon another decision of the same High Court in which the wife had been awarded a sum of Rs. 200.00 out of income in hand of Rs. 1571/- of the husband, which was considered less in view of the fact that the gross income of the husband in the monthly increased by a further Rs. 900/-and accordingly, it was directed that there should be a corresponding increase in the ad interim maintenance payable to the wife. 10. Learned counsel lastly relies upon the case of L.R. Rajendran V/s. Gajalakshmi A.I.R. 1985 Madras 195. In paragraph no. 12 of the said judgment it was held as follows: "Since the temporary or interim allowance is awarded without going into the merits, the amount is usually lessthan the amount awarded as permanent maintenance and is normally restricted to the actual needs of the petitioner if living in comfortable retirement, but the amount should not be on a very parsimonious or miserly scale." 11. Applying the said standard it was held by the court that ad interim maintenance of Rs. 150.00 granted to the wife when the husband was earning Rs. Applying the said standard it was held by the court that ad interim maintenance of Rs. 150.00 granted to the wife when the husband was earning Rs. 800/-cannot be said to be either excessive or too meagre a sum; rather it was a reasonable sum. 12. Learned counsel for the opposite party, on the other hand, sought to emphasize the fact that the wife, opposite party, had filed her application under Sec.24 of the Act on 16.8.2002 and the petitioner had delayed the matter by filing his rejoinder on 25.11.2004, although it is claimed by the learned counsel for the petitioner that the said delay has occurred on account of the fact that there was no Principal Judge posted to the Family Court in most of the intervening period. It is further submitted by learned counsel for the opposite party that she was married 8 years back and has no child and further that she has no means to sustain herself whereas the petitioner apart from getting a handsome salary above Rs. 20,000/-per month was also living with his father, who is a retired Central Government Class-I Officer. Learned counsel also denied the allegation that the opposite party was earning any amount by way of tuition; although it is admitted that she is a Post-Graduate. It is further submitted that considering the status and circumstances of the parties, including the opposite party, and the fact that she comes from a well to do family and the petitioner is also earning a substantial amount, the order regarding interim maintenance of Rs. 7,000.00 per month is neither excessive nor unreasonable and the court below has passed the same by taking into account all the relevant consideration and thus, there is no scope for interference with the same in the civil revisional jurisdiction. 13. Learned counsel also sought to emphasize the conduct of the petitioner in delaying the consideration of the application under Sec.24 of the Act as also not paying a single farthing even after the order of maintenance has been passed and for the said reasons also, his application ought to be thrown out at the outset. 14. 13. Learned counsel also sought to emphasize the conduct of the petitioner in delaying the consideration of the application under Sec.24 of the Act as also not paying a single farthing even after the order of maintenance has been passed and for the said reasons also, his application ought to be thrown out at the outset. 14. Learned counsel also sought to support the grant of the ad interim maintenance from the date of the application since the delay was not caused on account of any fault on the part of the opposite party and any delay that was caused was due to the petitioner himself and thus for the said period the opposite party should not be kept out of the interim maintenance to which she is entitled. 15. In this regard, learned counsel submits that the statement regarding the court being vacant as a reason for delayed filing of the rejoinder, does not appear to be correct, since the petitioner has taken as many as 21 adjournments in the meantime. 16. In support of his contention, learned counsel for the opposite party has relied upon a large number of cases. Learned counsel for the petitioner firstly relied upon a decision of the Supreme Court in the case of Amarjit Kaur V/s. Harbhajan Singh and Another: (2003)10 SCC 228 . In that case, it was held by the Apex Court that the relevant statutory consideration for awarding interim maintenance under Sec.24 of the Act is that either of the parties, who was the petitioner in the application under Sec.24 of the Act, has no independent income sufficient for her or his support and in that situation, the same has to be granted and the discretion, thereafter, left with the court was only with reference to the reasonableness of the amount that could be awarded and not to impose any condition. However, apart from the general principle laid down there is nothing in the said decision on the issue of quantum or the date from which the interim maintenance should be granted. 17. Learned counsel also placed reliance upon a decision in the case of Dev Dutt Singh V/s. Smt. Rajni Gandhi: A.I.R. 1984 Delhi 320, specially the observations made therein in paragraph no. 21 of the decision, which are as follows: "There is no inflexible rule. There may be cases where more than one third is right. 17. Learned counsel also placed reliance upon a decision in the case of Dev Dutt Singh V/s. Smt. Rajni Gandhi: A.I.R. 1984 Delhi 320, specially the observations made therein in paragraph no. 21 of the decision, which are as follows: "There is no inflexible rule. There may be cases where more than one third is right. There are likely to be many others where less than one-thire is the only practicable solution. Cases show that "one-third rule" as a flexible starting point is in general more likely to lead to the correct final result than a starting point of equality, or a quarter In any calculation the Court has to have a starting point. If it is not one third, should it be one half or one quarter? One-third is a good and rationa starting point, remembering that it is not an inflexible rule but only a starting point. Here the husband is earning for more than the wife. She can only keep up her standard of living with his help Inflation has already altered values considerably." 18. Learned counsel also emphasized that on the facts of the said case, all though the wife was found to be earning Rs. 1270.00 per month and the husband was earning about Rs. 3,500.00 per month the court awarded Rs. 500.00 as a further amount of interim maintenance to the wife since she had made claim that she was living with her parents in a slum area. So far as the said decision is concerned, I advises that 1/3rd of husbands salary should be treated as the starting poin and thereafter a higher or lower amount it the facts and circumstances of the cas ought to be fixed as the interim mainte nance. So far as the grant of Rs. 500.00 as further interim maintenance to an earning wife in that case is concerned, the same was granted after specifically recording the fact that the applicant was residing with her parents in a slum area at Rs. 10.00 per month and, therefore, she wanted to reside separately. There does not appear to be any such similar contention raised in the present matter by the applicant opposite party in the court below. 19. Learned counsel also sought to place reliance upon the case of Manoj Kumar Thakur V/s. Shibani Devi: 1991(2) PUR 311. In paragraph no. 10.00 per month and, therefore, she wanted to reside separately. There does not appear to be any such similar contention raised in the present matter by the applicant opposite party in the court below. 19. Learned counsel also sought to place reliance upon the case of Manoj Kumar Thakur V/s. Shibani Devi: 1991(2) PUR 311. In paragraph no. 7 of the said decision it has been held as follows: "It may be said, as noticed above, that the parties have not come out with accurate version regarding extent of property and income. Courts in India, while dealing with the question of maintenance pendente lite to Hindu wives have generally followed the one-third rule in case of low income. If that be a reasonable basis, then it would follow that the maintenance of Rs. 300.00 per month would only mean, in effect, that the husband would be presumed to be earning only a sum of Rs. 900.00 per month. On the facts as stated above, I do not think that an inference or conclusion that the husbands income would not be less than Rs. 900.00 per month can be said to be arbitrary. It would, accordingly, follow that the courts order fixing sum of Rs. 300.00 per month as maintenance pendente lite is just and proper." 20. Thus, the said observation of this court has taken it as established practice of courts in India to treat the 1/3rd as maintenance pendente lite to be granted to the Hindu wives in case of low income. 21. Learned counsel also placed reliance upon a decision in the case of Smt. Padmavathi and Others V/s. C. Lakshminarayana, A.I.R. 2002 Karnataka 424 and further on a decision in the case of Hema V/s. S. Lakshmana : A.I.R. 1986 Kerala 130 and also on a decision in the case of Smt. Renu Jain. V/s. Mahabir Prashad Jain: A.I.R: 1987 Delhi 43. V/s. Mahabir Prashad Jain: A.I.R: 1987 Delhi 43. So far as the said decisions are concerned, the general consensus in those decisions appears to be that in a case of maintenance contemplated under Sec.24 of the Hindu Marriage Act, the Court must take into consideration the income of the spouses and the needs of the claimant having regard to the status of the parties, their family background, the standard of life to which the claimant has been accustomed to, legal and other obligations of the person liable to make the payment and other relevant circumstances. In the Kerala case the court has taken note of the fact that the Courts of Rajasthan and Himachal Pradesh have supported a ceiling even in regard to Sec.24 of the Act whereas the High Courts of Bombay, Ahmadabad and Gujarat,have taken a contrary view and the same has been followed in the Kerala judgment. On facts, I find that in the Karnataka judgment, the wife was granted interim maintenance of Rs. 2,000.00 on a finding that the income of the husband was at least in the range of Rs. 10,000.00 per month; in the Kerala High Court decision, the interim maintenance was granted to the wife at Rs. 1,000.00 per month on coming to a conclusion that the husband had at least an income of Rs. 4,000.00 per month whereas in the Delhi High Court judgment, the wife was awarded maintenance of Rs. 1,500/-on a finding that the husband was earning Rs. 6,000.00 per month. 22. On the issue of the date from which the order of interim maintenance should take effect, learned counsel for the opposite party relies upon a decision of the Andhra Pradesh High Court in the case of Parchuri Rajya Lakshmi V/s. Parchuri Viswa Sankara Prasad: A.I.R. 1995 A.P. 147 in which case it was held that the alimony/maintenance should normally be directed to be paid with effect from the date on which the application is filed by the claimant. Learned counsel also relies upon another decision of the Andhra Pradesh High Court in the case of Narendra Kumar Mehta V/s. Smt. Suraj Mehata: A.I.R. 1982 A.P. 100. In paragraph no. Learned counsel also relies upon another decision of the Andhra Pradesh High Court in the case of Narendra Kumar Mehta V/s. Smt. Suraj Mehata: A.I.R. 1982 A.P. 100. In paragraph no. 18 of which it has been laid down as follows: "Where the respondent is held liable to pay maintenance it would be for the court to decide whether the maintenance should be granted from the date of the petition or from any other subsequent date. There is no justification for laying down any hard and fast rule as regards payment of the maintenance from the date of service of summons only. However, in no event, the Court can grant arrears of maintenance covering a period anterior to the petition itself." 23. Thus, on a consideration of the abovementioned two cases, it appears that the interim maintenance ought to be granted either from the date of application or any other subsequent date which appears to be reasonable to the court. 24. On a consideration of the case laws cited by the rival parties, it does not appear that any fixed rule as regards grant of interim maintenance under Sec.24 of the Act has been laid down. Different High Courts have been following different practice in this regard, but the consensus is that the amount ought to be reasonable considering the circumstances of the parties and various other factors including the family status and financial position. However, on a consideration of the actual amount of interim maintenance granted, it is to be seen that generally it ranges between 1/5th to 1/3rd of the family income. In case where the spouse had been found earning some amount then that amount is to be deducted while fixing the interim maintenance as 1/3rd or 1/5th of the income of the family. In case where the spouse was not earning anything then the amount generally awarded has been in the range of 1/5 to 1/4th of the earning of the husband. With regard to the date of application, from which the interim maintenance is to be paid, generally the court has awarded interim maintenance from the date of application, though in the judgment of the Allahabad High Court it is not to be awarded from the date of application if the matter is delayed and a huge amount would become payable as arrears. 25. 25. In the present matter, the husband petitioner has in this court filed his salary certificate issued by his employer, State Bank of India as paid in January, 2007, which shows that his total emolument including his basic pay and various allowances is Rs. 24,206/-, out of which the compulsory deduction from his salary is in the range of Rs. 3,712/- and the net amount paid to him after such compulsory/statutory deduction is Rs. 20,494/-. In that view of the matter an amount of interim maintenance to the wife at the rate of Rs. 7,000.00 per month appears to be on the higher side as this is not a case of low income family. On a consideration of the entire facts and circumstances, this court is of the view that a sum of Rs. 5,000.00 per month would be a reasonable amount as interim maintenance to be paid to the opposite party. 26. So far as the date from which the payment is to be made, learned counsel for the petitioner points out that a huge arrear amount would have to be paid by the petitioner to the opposite party, if it is awarded from 16.8.2002; and the same should, therefore, be awarded from January, 2007; but such submission on behalf of the petitioner does not appear to be reasonable, specially in view of the fact that he has also been responsible to a greater or lesser extent so far as the delay in hearing of the application under Sec.24 of the Act is concerned. However, since the order has been passed by, the Family Court on 22.7.2005, it would be just and reasonable in the facts and circumstances of this case that the amount of interim maintenance at the above rate should be paid from the said date, but on account of the dilatory tactics adopted by the petitioner in this regard, he is directed to pay a lump sum amount of Rs. 50,000/-to the opposite party apart from paying the said interim maintenance from 22.7.2005. 27. So far as the amount of litigation cost of Rs. 50,000/-to the opposite party apart from paying the said interim maintenance from 22.7.2005. 27. So far as the amount of litigation cost of Rs. 10,000.00 awarded is concerned, normally this court would consider it to be on the higher side in view of the cost of the litigation as prevalent in the Civil Court, but considering that the present matter has been delayed and the petitioner is alleged to have taken adjournment on at least 21 occasions, this court is not inclined to interfere with the said amount. 28. The Civil Revision application is, accordingly, partly allowed to the extent indicated above.