Rattan Bala vs Prahlad Swarup Aggarwal
2002 Latest Caselaw 157 Del

JUDGMENT

R.C. Jain, J.

1. This revision petition is directed against the order of the learned Additional District Judge, Delhi dated 19.9.1996 by which an application moved by the petitioner-wife under Section 24 of the Hindu Marriage Act (hereinafter referred to as the Act) seeking interim maintenance and litigation expenses, has been disposed of allowing litigation expenses of Rs. 2500/- but refusing the grant of maintenance pendente lite.

2. Briefly stated the relevant facts giving rise to the present revision petition are that the petitioner-wife herein is facing a petition of divorce filed by the husband. She made an application under Section 24 of the Act with the averments that the respondent-husband has income from various sources viz interest income of Rs. 1,000/- per month on the money letn by him; further income of Rs. 200/- as interest on bank deposits, rental income of Rs. 50/- per month. He has also received a sum of Rs. 24,952/- from LIC; Rs. 5883/35p plus Rs. 2186/15p from Nagrik Sehkari Bank and has also received pay of the son of the parties amounting to Rs. 327.70p and has an insurance cover worth Rs. 25,000/-. The averments were denied by the husband and on the contrary he pleaded that the applicant-wife is a trained accountant and was employed with Takshila Electronics; M/s. Suri Brothers and Technico India as full time Accountant. She earlier filed a case for recovery fo back wages and reinstatement which is stated to be pending in the High Court. The applicant-wife is stated to have received certain amounts from him (respondent) as well as from her parents and she is also making money by doing some work at home. The applicant is stated to be in possession fo Jewellery worth Rs.1 lac and is living with the son of the parties who is a Chartered Accountant and is fully maintaining her. It was also stated that he was turned out of the house. In the rejoinder, the applicant-wife admitted receipt of a sum of Rs. 16904/- from the husband but clarified that the said money had been spent in the purchase of the house and for its repair. It was, however, denied that she was gainfully employed and was having any income.

3. The learned trial court on a consideration of the respective pleas has refused to grant any interim maintenance to the applicant-wife primarily on the ground that she has never been a destitute in as much as she was living in the house belonging to the husband and with her son who is a qualified Chartered Accountant and even otherwise she being a trained Accountant and, therefore, was capable of earning. With regard to the income of the husband, the trial court observed that it was not possible to assess the income of the husband.

4. I have heard Shri Bikramjit Nayyar, learned counsel representing the petitioner-wife and the respondent-husband in person and have given my thoughtful consideration to their submissions. The foremost contention of learned counsel for the petitioner-wife is that the learned trial court has erred in holding that petitioner is not entitled to any interim maintenance because she is not a destitute and is being maintained by her son who is a qualified Chartered Accountant. He submitted that for the purpose of grant or refusal fo the application under Section 24 of the Act, it is the income of the parties which is material and not the income of the children and that the legal as well as moral obligation to maintain the wife is to that of the husband rather that of the son. In this regard, he has sought support from a decision of the Supreme Court in the case of Kulbhushan Kumar v. Raj Kumari and Anr. . In that case the Hon'ble Court considered the question with regard to the maintenance of wife under the provisions of Hindu Adoption and Maintenance Act, 1956 and held as under:--

"(1) Even if the wife received some amounts from her father regularly it was only a bounty and not here income. Therefore it could not be taken into account under Section 23(2) of the Act in determining the amount of maintenance.

(2) There was no evidence of here inheriting any property of her father on his death.

(3) The amount payable by way of maintenance depends on the facts of each case and the Judicial Committee, in Mt. Ekradeshwari v. Homeshwar did not lay down any principle relating to the proportion fo the husband's 'free income' which would be payable as maintenance to the wife."

5. Keeping in view the above principle as also the provisions of Section 24 which is int he form of a beneficial legislation and requires the court to come to the rescue of a spouse who has no independent income of his or hers and should not feel handicapped of subsistence and effective defense of the matrimonial proceedings. The words "has no independent income sufficient for her or his support" used in Section 24 of the Act are quite significant and bring out the mind of legislation that while considering the question of granting or refusing maintenance pendente lite, the Court is to restrict the enquiry as to the source of independent income of the applicant and the income of any other person viz. children etc is not to be taken into account. In the case in hand, the trial court has erred in declining the maintenance pendente lite to the applicant-wife merely on the ground that she is not a destitute and is being supported by the son who is a qualified Chartered Accountant, though the husband was not able to establish that the applicant-wife was having any regular income. Merely because she has a training in accounts work and has worked earlier with some concerns where she is no longer employed and she might get some amounts towards back wages is not sufficient to hold that the wife has sufficient independent income to maintain herself. The contention of the husband that the income of the wife is much more than his, is not borne out from the record. The husband admittedly is an able bodied person having experience in different spheres and he must be having enough income which can be safely assessed between Rs. 2000-3000/- pm. He is otherwise under a legal and moral obligation to maintain the wife. This Court is, therefore, of the opinion that it would meet the ends of justice, if the respondent-husband is directed to pay maintenance pendente lite @ Rs. 750/- per month to the applicant-wife besides the litigation expenses of Rs. 2500/- as awarded by the learned trial court.

6. In the result, this petition succeeds and is hereby allowed. The impugned order date 19th September 1996 is set aside and the respondent-husband is hereby directed to pay maintenance pendente lite to the applicant-wife @ Rs. 750/- per month w.e.f. from the date of the application. The arrears of past maintenance are allowed to be paid in Installments @ Rs. 250/- per month Along with the current maintenance @ Rs. 750/- p.m. No order as to costs.