Sangeeta Sharma vs Rajiv Sharma
1994 Latest Caselaw 213 Del

JUDGMENT

C.M. Nayar, J.

(1) The present petition has been filed to impugn the order dated May 13, 1992. passed by the learned Additional District Judge, Delhi, by which the application of the petitioner under Section 24 of the Hindu Marriage Act(hereinafter referred to as the Act) for grant of maintenance pendente lite was disposed of. The learned Judge had decided the application after considering the respective contentions of the parties and awarded the interim maintenance at the rate of Rs.500.00 per moth from the date of filing of the application i.e. May 7, 1990 till the final disposal of the petition filed by the respondent under Section 13(1) (i-a)of the Act. The petitioner was not awarded any litigation expenses on the ground that her case was being land led by her own Senior, which meant that litigation expenses were negligible.

(2) The learned counsel for the petitioner las assailed the Order of the Additional District Judge and contended that the petitioner was enrolled as an Advocate in the year 1989 and always had a meagre income, which drd not exceed moe than Rs.500.00 per month and presently she is not able to earn even that amount in view of the trauma and frustration of an unhappy marriage. The respondent, on tie other hand, is a well paid Doctor and is earning sufficient income and the enhance men is, according, justified in the facts & circumstances of the present case. He has futher stated that the Trial Court erred in not awarding the litigation expenses as an inference was drawn against the petitioner that her case was being handled by her Senior and litigation expenses were negligible. He has argued that even in case where no fee is accepted by a counsel, some amount is always spent for traveling and defending the petition for dissolution of marriage, which has been thrust upon her by the respondent on non existent grounds. The petition for dissolution of marriage has since been granted by the court of Shri Brijesh Kumara, Additional District Judge, Delhi and the decree under Section 13(1) (i-a) of theHindu Marriage Act has been passed on September 8, 1993. It is evident from perusal of the judgment that the petitioner did not contest the proceedings.

(3) The only question, which now remains, is the grant of maintenance pendente lite with effect from May 7, 1990 till the date of dissolution of marriage, which took place on September 8.1993.

(4) The learned counsel for the responder it has opposed the plea of enhance ment of maintenance on the ground that the petitioner was enrolled in 1989 and completed four years of legal practice in Delhi Courts and she was maintaining a car, telephone at her residence, an office and a chamber and, therefore, she was enjoying a very high economic status. The Trial Judge fixed the quantum of maintenance at the rate of Rs.500.00 per month by applying the norms and principles laid down by this Court and the other High Courts and has not exercised jurisdiction illegally in fixing the quantum of Rs.500.00 per month. The petitioner has also filed her affidavit and reiterated that the learned Additional District Judge erroneously calculated the amount of her income at Rs.1000.00 per month in view of the fact that she had an approximate income of Rs.600.00 per month. The total income from 15.5.1991 till 30.9.1991, which was indicated as Rs.7000.00 was the total income for that whole year. The question of payment by the Senior counsel to the petitioner at the rate of Rs.800.00 per month has also been denied by the said counsel and he has filed an affidavit to the effect that no such amount was paid by him till January 1993 and the petitioner was being supported by her parents.

(5) The respondent, on the other hand, is a Doctor by profession. It is contended that he is running two Dispensaries and has approximately an income of Rs.6000.00 per month.

(6) I have carefully considered the respective contentions of the parties and find that the Trial Judge has awarded the maintenance at the at the rate of Rs.500.00 per month without taking into consideration that the income of the petitioner is negligible, as compared to the income of the respondent who is an established Doctor and has been working in Batra Hospital as well as running his own clinics. The learned Judge has erroneously considered the savings of the respondent towards Provident Fund and Public Provident Fund contributions as these are in fact savings and the amount cannot be deducted for the purpose of arriving at the actual income. The Trial Judge has also erred in granting no relief to the petitioner for litigation expenses merely on the ground that 'her case is being handed by her own Senior and that the litigation expenses are negligible.

(7) The question of maintenance pendente lite has been considered by various judgments. It will not be necessary for me to refer to all of them, as there can be no mathematical formula for award of the amour it, such as, I/3rd or on the basis of any other proportion. The law has to operate in a more flexible and elastic manner to do complete justice between the parties. Preference may be made in this regard to the judgment of Avadh Behri Rohtagi, J. in Dev Dutt Singh v. Smt. Rajni Gandhi Air 1984 Delhi 320 in which he has referred to various judgments to highlight the issue that each case has to be considered on its own circumstances. Paragraphs 12. 13 and 15 may be cited in this regard, which read as under:- "12.The substance of these judgments is this Each case must be determined according to its own circurnstancs. No two cases are alike. These cases do not lay down any proposition of law. On the facts of the particular case the Court adjudicated what allowance will he reasonable to award "having regard to the petitioner own income and the income of the respondent". If the present case illustrates anything it is this that rigid adherence to "one-third" rule may not always he just. Section 24 is not a code of rigid and inflexible rules, arbitrarily ordained, and to be blindly obeyed. It leaves everything to the Judge's discretion. It does not enact any mathematical formula of one-third or any other proportion. It gives wide power, flexible and elastic to do justice in a given case. 13. In most cases the standard of living of one or both of the parties will have to suffer because there will be two households to support instead of one. When this occurs, the Court clearly has to decide what the priorities are to be and where the inevitable loss should fall. Generally speaking, wife is the financially dependent spouse. She is potentially likely to suffer greater financial loss from title dissolution of marriage than the husband. For her support the Court lies to award a. reasonable amount. The cases decided under the Act should not be followed slavishly. In the words of Scarman L.J.: "It would be unfortunate if she very flexible and wide-ranging powers conferred upon the Court should he cut down or forced into this or that line of decision by the Courts." (Chamberlain v. Chambertain. (1974) I Aller 33, 38 CA). 15. What is a proper proportion of the husband's income to be given to the wife as maintenance pendents lite is a question to be determined in the light of all the circumstances of a particular case; the very flexible and wide-ranging powers vested in the Court make it possible to do justice. "

(8) It has been further held by this judgment that the amounts deposited in the Public Provident Fund and such savings, cannot he termed as compulsory deductions and, therefore, ought to be taken into account in determining title disposable income of the husband. This judgment is further referred to by B.N. Kirpal, J. with approval in Promila Nangia v. Baldev Raj Nangia 1 (1989) D.M.C 547.

(9) In Ravi Parkash v. Shakuntala Devi 11(1984) D.M.C.64. it was held that the Courts adopt a formula that the allowance should approximate to l/5tl of the income of the spouse or l/3rd of the aggregate income of both the spouses. But this formula is variable and eventually a case has to be decided in accordance with its own circumstances. The Court has to see whether the demanding spouse has no independent and sufficient income to maintain herself or himself and what would be the reasonable amount of maintenance.

(10) In the present case, the respondent has not been able to indicate the positive earning of the petitioner other than the earning as specified by the petitioner, nor any proof has been adduced in this regard. He has merely alleged that she is a lawyer by profession and lies sufficient income and is maintaining telephone and car and is leading a life of high status. On the other hand, it is evident that' the petitioner is a fresher in the profession and is not earning the kind of amount, which is highlighted by the respondent. The high status of a woman is also linked with the happiness and the state of marriage and the same falls to the ground when she is facing marital discord and continuous litigation in this regard.

(11) The position of law is, therefore, settled that there can be no mathematical basis in calculating the amount to maintenance which should be allowed. The awarded amount has to be based on consideration of totality of circumstances to grant just, fair and equitable solution of the problem. Taking into consideration the relative income of the petitioner as well as the income of the respondent the Order dated 13.5.1992. passed by the Additional District Judge, Delhi, is modified to the extent that the maintenance of the petitioner is enhanced to Rs. 1,000.00 per month with effect from 7.5.1990 till the date of passing of the decree for dissolution of marriage i.e. 8.9.1993. The petitioner shall also he entitled to litigation expenses which are quantified atRs.2,500.00 . The arrears of maintenance as well as litigation expenses shall be paid by the respondent to the petitioner within four weeks from today.

(12) The petition is allowed in title above terms. There will he no order as to costs.