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2014 DIGILAW 1703 (HP)

Poonam v. Virender Chauhan

2014-11-21

TARLOK SINGH CHAUHAN

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JUDGMENT : Tarlok Singh Chauhan, J. This petition, under Article 227 of the Constitution of India, for enhancement of the amount of maintenance pendente-lite and litigation expenses, is directed against the order passed by the learned District Judge (Forest), Shimla on 19.5.2014 whereby the application under Section 24 of the Hindu Marriage Act (for short 'Act') filed by the petitioner-wife for grant of maintenance pendente-lite and litigation expenses has been allowed thereby awarding the amount of maintenance pendente-lite to the tune of Rs. 2,500/- per month from the date of filing of the application and Rs. 5,000/- as litigation expenses. 2. The facts, in brief, are that the respondent herein, filed a petition under Section 13 of the Act for grant of decree of divorce against the petitioner-wife, which is pending before the Court below. The petitioner-wife is presently residing in Kurukshetra University in Girls' Hostel for pursuing her studies of Ph.D. The petitioner has submitted that she has no source of income and her mother is providing necessary financial assistance for pursuing her studies and in order to defend the divorce petition she needs maintenance pendente-lite at the rate of Rs. 20,000/- per month and a sum of Rs. 35,000/- as litigation expenses. She also submitted that the respondent-husband is having sufficient means for providing maintenance allowance and litigation expenses to her. 3. The respondent-husband resisted and contested the application by filing reply in which he has submitted that the instant application is not maintainable and the petitioner-wife is also estopped to file this application on account of her acts, conduct, deeds etc. He has denied that the petitioner-wife needs maintenance allowance and litigation expenses as claimed by her. He also denied that he is having sufficient means to provide her maintenance allowance and litigation expenses. According to him, he arranged for job and rented accommodation at Kurukshetra at the instance of the petitioner-wife, who wanted to pursue her studies at Kurukshetra, but he was compelled to resign his job as the petitioner-wife did not accompany him nor she lived with him. He further submitted that he has also no source of income because of the compelling circumstances created by the petitioner-wife. The respondent-husband has stated that the petitioner-wife has been provided financial assistance by the UGC to the extent of Rs. He further submitted that he has also no source of income because of the compelling circumstances created by the petitioner-wife. The respondent-husband has stated that the petitioner-wife has been provided financial assistance by the UGC to the extent of Rs. 40,000/- which fact she had suppressed from the Court below and he prayed for dismissal of the application. 4. The learned Court below vide order dated 19.5.2014 allowed the application filed by the petitioner for grant of maintenance pendente-lite and litigation expenses, which is impugned in this petition. 5. I have heard learned counsel for the parties and gone through the records of the case carefully. 6. According to petitioner, the amount of Rs. 2,500/- awarded by the Court below towards maintenance and likewise Rs. 5,000/-awarded towards litigation expenses is too meager taking into consideration the present day cost of living, price index and also taking into account the status of the parties. 7. Petitioner was awarded maintenance by the Court below on the pretext that she did not possess any independent source of income and has been pursuing her Ph.D studies in Kurukshetra University and staying in Girl's Hostel. Whereas, before this Court, the respondent moved an application, being CMP No. 11042 of 2014, for bringing on record the details of financial assistance received by the petitioner from the University Grants Commission. On the strength of these details, it was claimed that the very basis of awarding compensation was bad since the petitioner had already received by way of financial assistance a sum of Rs. 5,31,182/-. 8. Petitioner filed reply to this application and did not deny the receipt of this amount. However, it was stated that she had joined URS in March, 2008 in Kurukshetra University and in October, 2010, UGC had granted JRF for two years. Thereafter, in October, 2012, the UGC had granted SRF till March, 2013. The petitioner would then contend that this amount received towards financial assistance could not in any manner be termed to be an income, particularly when this financial assistance had come to an end on 31.3.2013. 9. According to petitioner, the respondent is working as TGT (Science) in Pine Grove School, Kuthar Road, Subathu and is earning well since it is a reputed school. In support of her claim, the petitioner has annexed a profile of the respondent uploaded by the school on its website. 9. According to petitioner, the respondent is working as TGT (Science) in Pine Grove School, Kuthar Road, Subathu and is earning well since it is a reputed school. In support of her claim, the petitioner has annexed a profile of the respondent uploaded by the school on its website. Based upon the contents of the profile, it is alleged that prior to this school, the respondent was working as a teacher in Senior School at Subathu till 2011. In rejoinder to this application, the respondent has not specifically denied these averments. 10. The obligation for Hindu male to maintain his wife is not a modern day concept but it existed even under the Shastric Hindu Law. According to the old Shastric Hindu Law, marriage between two Hindus is a sacrament - a religious ceremony which results in a sacred and a wholly union of man and wife by virtue of which the wife becomes a part and parcel of the body of the husband. She is, therefore, called Ardhangani. It is on account of this status of a Hindu wife, under the Shastric Hindu law, that a husband was held to be under a personal obligation to maintain his wife and where he dies, possessed of properties, then his widow was entitled, as of right, to be maintained out of those properties. Mulla in his classic work on "Hindu Law," 14 the Edn., dealing with the characteristic of the right of maintenance of a Hindu wife observes: "A wife is entitled to be maintained by her husband, whether he possesses property or not. When a man with his eyes open marries a girl accustomed to a certain style of living, he undertakes the obligation of maintaining her in that style. The maintenance of a wife by her husband is a matter of personal obligation arising from the very existence of the relationship, and quite independent of the possession by the husband of any property, ancestral or self-acquired." Mayne in his Treatise on "Hindu Law and Usage" 11th Edn., while trancing the history and origin of the right of maintenance of a Hindu wife says:- "The maintenance of a wife by her husband is, of course, a matter of personal obligation, which attaches from the moment of marriage." 11. Section 24 of the Act makes a provision in favour of a spouse having no independent income sufficient for her or his support and the necessary expenses of the proceedings for maintenance pendente-lite and expenses of proceedings in the following terms: "S.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. [Provided that the application for the 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]." 12. The right of a wife for maintenance is an incident of the status or estate of matrimony. It is, therefore, the bounden duty of the husband to defray the wife's costs of any proceeding under the Act and also to provide for her maintenance and support pending the disposal of such proceeding. Any decision on the subject of alimony must necessarily depend on the circumstance of each case and no fix rule can be expected on the question. 13. The respondent has withheld his actual income from the Court. While on the other hand, it is proved on record that the petitioner currently has no independent income. Though, the learned counsel for respondent would contend that since the petitioner is not only well educated but is better educated than the respondent, therefore, she can support herself. I am afraid this cannot be the answer to the claim of the maintenance raised by the wife. The maintenance under this section is dependent upon, amongst other factors, the sufficiency of independent income. I am afraid this cannot be the answer to the claim of the maintenance raised by the wife. The maintenance under this section is dependent upon, amongst other factors, the sufficiency of independent income. Therefore, when a claimant spouse has, at the time of claiming under this section, no independent or sufficient income, capable of supporting herself, it would be no answer to such a claim, based on the preponderance of probability, that she was qualified and could support herself. 14. As noticed earlier, respondent himself has not chosen to disclose his income. In para 3(d) of the petition, the specific averment has been made to the effect that the respondent is working in Pine Grove School, Subathu and is drawing salary of Rs. 35,000/- per month and besides this, he has sufficient immoveable property at his native place which is coparcenary and joint family property and is also having building in the urban area of Chhota Shimla. 15. In reply to this para, it has been averred that the respondent-husband is neither regular employee of Pine Grove School nor is there any contract of employment with the management as the respondent-husband is only temporarily giving his services as a substitute teacher till the regular employee joins back. As regards the income of Rs. 35,000/-, it is alleged that the same is exaggerated and is far from truth. It is also submitted that the respondent is living in a joint family and, therefore, he has no exclusive ownership or possession of any property. In view of the specific averment made by the petitioner, it was incumbent upon the respondent to have annexed his salary slip so as to ascertain the nature of his employment as also the total income received therefrom. In absence of such a certificate, an adverse inference is drawn against the respondent and the income stated by the petitioner will have to be taken as correct. 16. Even otherwise in terms of the profile uploaded on the official website of the school, the respondent is working as TGT (Science) and as per the pay scales uploaded on the official website of the school, the TGT is being paid initial basic of Rs. 10,230/-, Grade Pay Rs. 4,200/-, D.A. 80%, H.R.A. 7%, P.F. Rs. 750/- and Special Pay Rs. 5000/-. This pay works out to be roughly Rs. 35,000/- per month. 10,230/-, Grade Pay Rs. 4,200/-, D.A. 80%, H.R.A. 7%, P.F. Rs. 750/- and Special Pay Rs. 5000/-. This pay works out to be roughly Rs. 35,000/- per month. That apart, all teachers and other administrative staff in addition to salary are entitled to free food and accommodation in the school as per the information available on the official website of the school. 17. Now, in case the total income of the respondent is taken as Rs. 35,000/- per month, then the petitioner would be entitled to atleast ?rd of the income which works out to Rs. 11,666/- and if rounded off, the same would be Rs. 12,000/- per month. 18. In this factual backdrop, the award of maintenance at the rate of Rs. 2,500/- per month cannot be sustained and is too meager and, therefore, the petitioner is held entitled to monthly maintenance of Rs. 12,000/- per month from the date of filing of the application till the disposal of the main petition. Likewise, the amount of Rs. 5,000/- awarded towards litigation expenses is also far too meager and in the given facts and circumstances, the ends of justice would be met in case the same is enhanced to Rs. 10,000/-. Ordered accordingly. 19. Resultantly, the petition succeeds and is disposed of in the aforesaid terms, so also the pending application, if any. Petition disposed of.