Research › Search › Judgment

Patna High Court · body

2007 DIGILAW 999 (PAT)

Sanjay Kumar Jha v. Premsheela Devi

2007-05-24

RAMESH KUMAR DATTA

body2007
Judgment 1. Heard learned counsel for the parties. 2. The petitioner has come up to this Court against the order dated 13.2.2007 passed in Divorce Case No. 80/2005 by the Principal Judge, Family Court, Motihari, East Champaran under Sec. 24 of the Hindu Marriage Act, 1955 directing a maintenance pendente lite of Rs. 4000/- i.e. Rs. 1000/- each to the opposite party and three minor children born out of marriage and further directing to pay litigation cost of Rs. 500/- per month with effect from the date of filing of the petition under Section 24 of the Hindu Marriage Act. 3. The aforesaid matrimonial case was filed by the petitioner under Section 13 of the Hindu Marriage Act for obtaining a decree of divorce on the grounds mentioned therein. The admitted position is that the marriage of the petitioner and the opposite party took place in the year 1989 and from the said marriage two daughters and one son were born who are all minors at present. After appearing in the matrimonial case the opposite party on 17.10.2006 filed a petition under Section 24 of the Act for payment of ad interim maintenance of Rs. 10,000/- per month and Rs. 15,000/- as litigation cost. The petitioner filed a rejoinder to the same. Thereafter the impugned order dated 13.2.2007 has been passed. 4. Learned counsel for the petitioner submits that the court below has not taken any pain to come to a conclusion regarding the actual income of the petitioner and merely on the statements and allegations made by the opposite party had directed the payment of unreasonably high amount of maintenance pendente lite as also cost of litigation without taking into consideration the actual income of the petitioner. It is submitted by the learned counsel that the petitioner had produced before the Court, as evidence, the order dated 30.7.2004 passed by the permanent Lok Adalat in the partition suit in which the petitioner has been allotted only 19 kathas and 11 dhurs of land and thus, there was no occasion for the court below to have merely relied upon an unverified statement of the opposite party that the petitioner has 2 bigha and 15 katha cultivable lands from which he is earning Rs. 1 lac annually. 1 lac annually. It is submitted by the learned counsel for the petitioner that the petitioner, apart from the meagre income from the said land, earns some amount by driving auto-rickshaw of other persons from time to time and his monthly income from all sources does not exceed Rs. 2000/- per month. 5. In support of the aforesaid proposition learned counsel for the petitioner relies upon a decision of this Court in the case of Pankaj Kumar Singh vs. Nisha Mishra & Ors., 2000(1) PLJR 35 , in para10 of which it has been laid down as follows. "Coming to the question of quantum of maintenance, I find sufficient force in the submission of the counsel for the petitioner that in the absence of any evidence regarding the actual income from the landed property, allegedly possessed by the petitioner, the court could not have fixed the amount @ Rs. 3000/- per month. In my view, while maintenance is payable every month, there can be no justification to pay litigation expenses also every month. Ordinarily, litigation expenses are paid in lump sum, no doubt, where the litigation protracts, then there may be justification to pass another order. Litigation expenses are paid to relieve the wife of the burden she has to suffer on account of the litigation which has been forced on her. Such payment has to have nexus with the expenses she has to bear. Any order to pay litigation expenses also every month, like maintenance, would be arbitrary and against the object underlying the Section." 6. Learned counsel further relies upon a decision of this Court in the case of Manoj Kumar Thakur vs. Shibani Devi: 1991(2) PLJR 311 in which the maintenance pendente lite of Rs. 300/- per month was held to be justified on presuming the income of the husband to be at least Rs. 900/- per month. Learned counsel for the petitioner also submits that the litigation expenses ought not to have been awarded on monthly basis as the same is contrary to law. He also challenges the award of ad interim maintenance with effect from the date of application and not from the date of the order, which according to him, is normally awarded by the Courts. 7. He also challenges the award of ad interim maintenance with effect from the date of application and not from the date of the order, which according to him, is normally awarded by the Courts. 7. Learned counsel for the opposite party, on the other hand, reiterated the stand taken by the opposite party in the court below and submitted that the petitioner is earning substantial amount of money by driving the auto-rickshaw and also from the property in his possession. It is submitted that the petitioner is treated like son by his maternal aunt who is a very well off lady and has a lot of lands and thus, the petitioner would be in a position to pay an amount of Rs. 4000/- as ordered by the court below as also the litigation expenses. However, learned counsel for the opposite party was unable to justify on the basis of the records that the petitioner was earning huge amount of money except what has been alleged in the application filed in the court below itself. 8. On a consideration of the rival submissions and the cases relied upon by the learned counsel for the petitioner this Court is also of the opinion that without coming to any prima facie conclusion with regard to the income of the petitioner, the court below ought not to have granted the amount of Rs. 4000/- as ad interim maintenance as any such payment of maintenance pendente lite has to take into consideration the income of the party who has been directed to pay the amount. In a case under Sec. 24 of the Hindu Marriage Act the direction of the law is that the spouse who is earning should pay the ad interim maintenance to the spouse who does not have any means of income and thus, the court below is required to carefully examine the matter regarding the income of both the parties before ordering any ad interim maintenance to be paid under that provision. So far as the minor children are concerned, no payment of ad interim maintenance can be awarded under the said provision but independently under Sec. 26 of the Act, the Court concerned has power to pass any interim order also for the upkeep of the children. 9. So far as the minor children are concerned, no payment of ad interim maintenance can be awarded under the said provision but independently under Sec. 26 of the Act, the Court concerned has power to pass any interim order also for the upkeep of the children. 9. In the present matter, the only concrete evidence that has come forward is the admission of the petitioner that he has been given a share of approximately 1 Bigha of land in the partition suit disposed of by the permanent Lok Adalat. Apart from that the petitioner tried to show that he has no other source of income except driving auto-rickshaw of other persons. Taking a reasonable view of the matter, it can be held that the petitioner must be doing the same on more or less regular basis and thus his income would not be as low as 2000/- per month as he claims but something more than that. Further this Court is of the view that the court below has committed an error in awarding litigation expenses on month to month basis and the same has been adversely commented upon in the Pankaj Kumars case (supra) by this Court. 10. In the aforesaid view of the matter this Court is of the view that at present the petitioner should be directed to pay a sum of Rs. 600/- per month to the opposite party under Sec. 24 of the said Act and further a sum of Rs. 350/- per month each for the upkeep of each of the three minor children, i.e., the petitioner should pay total amount of Rs. 1650/- to the opposite party per month as ad interim maintenance for herself and for the upkeep of the three minor children. The same shall be payable from the date of the impugned order dated 13.2.2007. The petitioner is also directed to pay litigation cost of Rs. 4000/- in lump sum. 11. The revision application is accordingly allowed and the impugned order dated 13.2.2007 is partly set aside to the extent indicated above.