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2010 DIGILAW 856 (AP)

Eda Aruna v. Eda Nagi Reddy

2010-09-03

B.PRAKASH RAO

body2010
Judgment : 1. Heard both sides. 2. The petitioner herein, who is the wife, invoked the jurisdiction of this Court under Section 115 CPC inter alia seeking to assail the correctness of the order dated 8.12.2009 whereby the learned Principal Senior Civil Judge, Mangalagiri, Guntur District, dismissed I.A.No.1227 of 2009 in HMOP. No.97 of 2008 filed under Section 24 of the Hindu Marriage Act read with Section 151 CPC for grant of Rs.5,000/- per month towards interim maintenance and Rs.10,000/- towards legal expenses. 3. The respondent, the husband, filed the aforesaid OP seeking divorce on certain allegations, which need no reference for the issue involved. At this stage, the petitioner/wife has come up with an application seeking interim maintenance and legal expenses of Rs.5000/- per month and Rs.10,000/- respectively. No doubt, the petitioner/wife herself could not speak about any thing about the property possessed by her own parents, but, she only stated that her husband is an employee in Nagarjuna University and earning Rs.8,000/- per month and possessed landed property at Kaza village and is getting an amount of Rs.20,000/- per annum on the said property, hence the respondent has got sufficient means to maintain herself and her son. 4. The respondent/husband contested the application by filing counter affidavit. He stated that the petitioner’s parents possessed substantial landed properties, which worth crores of rupees. In support of his contention, he filed documentary evidence Exs.B.1 to B.8, which are registration extracts of sale deeds showing property owned by the parents of the petitioner/wife. Based on the above pleas, the learned Judge did not find favour for the petitioner and dismissed the application holding that there is no material to show that the petitioner has no independent source of income especially when her parents own and possess substantial properties and she is unable to maintain herself and to meet the legal expenses. 5. Having heard the learned Counsel on either side and perused the material on record, the narrow compass within which the issue resolves around is whether on the facts and circumstances, a wife can be denied of interim maintenance or the legal expenses required, under Section 24 of the Hindu Marriage Act on the ground that her parents own or possess the properties. Section 24 of the Hindu Marriage Act contemplates grant of maintenance pendente lite and expenses of the proceedings as well. Section 24 of the Hindu Marriage Act contemplates grant of maintenance pendente lite and expenses of the proceedings as well. However, whether the property owned by the father or other family members of the petitioner/wife can be treated as source of her own income to maintain herself to deny the relief. For convenience, it is necessary to extract Section 24 of the Hindu Marriage Act, which reads as follows: “24. Maintenance pendente lite and expenses of proceedings:- 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.” 6. A bare reading of the above provision contemplates payment of expenses of the proceeding and interim maintenance to the petitioner in the application filed under the aforesaid provision who has no sufficient independent income for support and maintenance. Pendency of the substantive proceedings at the instance of the husband apart, it enables a wife in such proceedings a claim for monthly maintenance and legal expenses to be sought. Her own income vis-a-vis the income of the husband is the sina qua non to justify the claim and both ways it requires to be positively established by cogent, legal and acceptable material. Even otherwise, a matrimonial Court can invoke ample inherent powers under Section 151 CPC and direct deposit of maintenance. Therefore, as along as the woman not owns or possesses property in her own right title or interest of whatsoever nature or has no income and a source thereof to maintain herself, the Court can grant maintenance as well as the expenses of the proceedings. The evidence on record shows that the petitioner has no property of her own or any source of income and it cannot be said that as per personal law the petitioner has any share in the property shown by the respondent. The evidence on record shows that the petitioner has no property of her own or any source of income and it cannot be said that as per personal law the petitioner has any share in the property shown by the respondent. It is not the case of the respondent that as a fact she is being paid any amounts from her parents at any time or regularly, nor that any of such property is transferred in her favour in any manner. Therefore, so far as the regular income from the property shown by the respondent is concerned, it does not stand in the eye of law as her own source, inasmuch as there is no evidence to substantiate in these lines. Therefore there is no valid, legal and acceptable basis for the Court below to reject the claim of the petitioner for grant of interim maintenance and expenses of the proceedings on the said ground. No law either personal or otherwise recognizes any right or title much less an interest in or over in respect of the properties belonging to the either of the parents or their respective families. In the facts and circumstances, she does not get any thing either as successor or survivor. Having already married, she is not even a dependent. On behalf of the respondent, nothing is addressed as to how the said property can become a source. And it is not their case as well that she is possessed any property or a source of income. Thus, the provision is enabling the husband or wife as the case may be to seek maintenance and expenses, irrespectively she or he is the petitioner or a respondent. It is a special right and as regards the quantum, is a discretionary depending on facts of each case. In view of these reasons, the Court below was not right in rejecting the claim of the petitioner for grant of maintenance and expenses of the proceedings. Hence the order under revision is liable to be set aside and the same is accordingly set aside. 7. The Civil Revision Petition is allowed. In view of these reasons, the Court below was not right in rejecting the claim of the petitioner for grant of maintenance and expenses of the proceedings. Hence the order under revision is liable to be set aside and the same is accordingly set aside. 7. The Civil Revision Petition is allowed. Consequently I.A.No.1227 of 2009 in HMOP.No.97 of 2008 on the file of the Court of the Principal Senior Civil Judge, Mangalagiri, Guntur District, stands allowed, taking into account the sources of income of the respondent as mentioned above and which has remained un-rebutted, granting interim maintenance at the rate of Rs.2,500/-per month from the date of filing the main OP. i.e. 09.07.2009. The respondent shall continue to pay the same from the month of September, 2010 on or before 10th of every succeeding month. The respondent is directed to pay the arrears of interim maintenance within a period of six months from today. Further, the respondent is directed to pay Rs.5,000/-towards legal expenses of the proceeding, within a period of one month from today. On such deposits whenever made on these terms, the petitioner is at liberty to withdraw the aforesaid amounts. It is needles to observe that the Court below shall dispose of the main HMOP independently and uninfluenced by the any of the observations made in this order. No order as to costs.