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Andhra High Court · body

2007 DIGILAW 827 (AP)

Nalisetty Srinivasulu v. Nalisetty Sunandha

2007-08-31

P.S.NARAYANA

body2007
ORDER :- This revision is coming up for Admission. 2. This Court ordered Notice before admission on 12.6.2007 and permitted the Counsel for petitioner to take out notice to the respondent and file proof of service. Sri M. Venkata Narayana, entered appearance representing the respondent. 3. Smt. N. Suguna, the learned Counsel representing the revision petitioner would maintain that the quantum of interim maintenance and the quantum of legal expenses which had been granted by the learned Senior Civil Judge, Kovvur are on higher side and totally disproportionate to the income since the Revision Petitioner/husband is only an agricultural coolie and that too the parties are residents of Atmakur Village. The Counsel also pointed out that the affidavit filed in support of the application by the respondent/wife also does not disclose the details of the assets, if any, of the revision petitioner/husband. The learned Counsel also would submit that due to unavoidable reasons, the revision petitioner/husband could not attend the Court and could not file counter and virtually ex parte order was made in this regard. 4. Per contra, Sri Venkateswarlu, representing Sri M. Venkata Narayana would maintain that the conduct of the revision petitioner/husband is to• delay or to procrastinate the matter and from the docket proceedings it would be clear that the revision petitioner/husband had not been co-operating with the disposal of even the main H.M.O.P. No.28/2005. The Counsel also would maintain that the respondent herein/wife is not having any source of income and she is unable to maintain herself and the children as well and since the spouses have a son and a daughter, the minors who are dependent on the respondent/wife, taking it into consideration the affluent position of the revision petitioner/husband, the learned Senior Civil Judge, Kovvur recorded certain reasons and ultimately granted Rs.3,000/- p.m. to each of the respondent/wife and the two children towards their maintenance, and Rs.5,000/- towards legal expenses and Rs.3,000/- towards Advocate's fee. In view of the conduct of the parties, since the impugned order does not suffer from any illegality whatsoever, the civil revision petition is liable to be dismissed. 5. Heard the Counsel. 6. The revision petitioner as petitioner in H.M.O.P. No.28/2005 on the file of Senior Civil Judge, Kovvur filed the said O.P. praying for the relief of divorce as against the respondent/wife. As can be seen from the docket, the matter had undergone several adjournments. 5. Heard the Counsel. 6. The revision petitioner as petitioner in H.M.O.P. No.28/2005 on the file of Senior Civil Judge, Kovvur filed the said O.P. praying for the relief of divorce as against the respondent/wife. As can be seen from the docket, the matter had undergone several adjournments. Be that as it may, the present respondent in the civil revision petition moved an application LA. No.3 112007 on the file of Senior Civil Judge, Kovvur praying for a direction to the present revision petitioner/respondent/ husband to pay Rs. 3,000/- p.m. to the wife and also to each of the minor children towards maintenance and legal expenses of Rs.5,000/-. It appears, the revision petitioner/respondent in the said application was called absent and the counter also was not filed. It was recorded by the learned Judge that though number of chances had been given to the husband, he did not attend the Court and did not file the counter and the learned Judge also observed that the husband was trying to procrastinate the litigation from 2005 onwards without getting ready and in such circumstances on the material available on record, the order impugned in the present revision was made. Reliance had been placed on the decisions in S. Venkatesan v. J. lndumathi, (2007) I MLJ 572, and Suseelarani v. Marimuthu, (2007) 2 MLJ 411 , relating to the guidelines to be observed while fixing the quantum of maintenance. 7. The civil revision petition itself is filed under Article 227 of the Constitution of India. It is no doubt true that the wife, in the affidavit filed in support of the application _ LA. No.3112007 in H.M.O.P. No.28/2005 on the file of Senior Civil Judge, Kovvur, had not furnished the details or particulars of the properties owned by the husband as such. But however, it was averred in the affidavit that the husband is in an affluent position and having landed and house properties worth lakhs of rupees and has been getting rents every month and also getting good agricultural income. But however, it was averred in the affidavit that the husband is in an affluent position and having landed and house properties worth lakhs of rupees and has been getting rents every month and also getting good agricultural income. The respective Counsel representing the parties made certain submissions - the learned Counsel representing the husband maintaining that the quantum of interim maintenance and the quantum of legal expenses awarded by the learned Senior Civil Judge, Kovvur are on higher side and the husband may not be able to pay the same since he is not having such a financial capacity and on the contrary the Counsel representing the wife contending that the husband is in an affluent position capable of paying such amounts as fixed by the learned Senior Civil Judge, Kovvur. The learned Senior Civil Judge, Kovvur, in the light of the docket entries, came to the conclusion that though the husband was given sufficient opportunity, the husband had not chosen to file any counter and in fact the husband was called absent and' further recorded certain reasons that the husband is trying to procrastinate the litigation. It is no doubt true that it would have been just and appropriate if the wife also had furnished the details of the agricultural lands or the house properties etc., and the other income clearly in the affidavit filed in support of the application. But however, the fact remains that an averment had been made to the said effect and the said averment made in the affidavit filed in support of the application had not been denied since no counter was f filed by the husband, whatever the reasons may be. 8. But however, the fact remains that an averment had been made to the said effect and the said averment made in the affidavit filed in support of the application had not been denied since no counter was f filed by the husband, whatever the reasons may be. 8. Section 24 of the Hindu Marriage Act 1955 dealing with Maintenance pendente lite and expenses of proceedings, reads as hereunder : "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 petitioner's own income and the income of the respondent, it may seem to the Court to be reasonable: Provided that the application for payment of the expenses of the proceeding and such monthly sum during the proceeding, shall, as far as possible, be disposed of within sixty days from the date of service of notice on the wife or the husband, as the case may be." The object of this provision is to enable the child, wife or the husband who may not be having independent income sufficient to support herself or himself, as the case may be, and the necessary expenses of any proceeding under the said Act, to have maintenance and the expenses pendente lite so that the proceedings may be further proceeded with without any hardship on such parties. It is no doubt true that while deciding the quantum to be awarded in this regard, the Court may have to assess the reasonable amount to be paid and it is also true that in this regard under Section 24 of the Act aforesaid, summary enquiry to be conducted though an enquiry in detail need not be conducted in this regard. Keeping in view the object of the provision aforesaid u and also taking the conduct of the husband into consideration, the learned Senior Civil Judge was left with no other option except to fix an amount of Rs. 3,000/- to the wife and the minor children as well each and Rs.5,000/- towards legal expenses. Keeping in view the object of the provision aforesaid u and also taking the conduct of the husband into consideration, the learned Senior Civil Judge was left with no other option except to fix an amount of Rs. 3,000/- to the wife and the minor children as well each and Rs.5,000/- towards legal expenses. However, keeping the overall facts and circumstances in view, this Court is not inclined to disturb the finding recorded by the learned Senior Civil Judge to the effect that though several chances had been given to the husband, he had not filed any counter. But however, in the light of the nature of the particulars which had been furnished by the wife in support of the application, the quantum of interim maintenance is hereby modified, granting Rs.l ,500/- p.m. to the wife and Rs.500/- p.m. each to the minor children, i.e., in all Rs.2,500/- p.m., but however the quantum of legal expenses of Rs.5,000/- to prosecute the litigation as such is hereby confirmed. To the said extent, the order impugned is modified. 9. Accordingly, the civil revision petition is partly allowed to the extent indicated above. No order as to costs.