ORDER
S.P. Srivastava, J.
1. Feeling aggrieved by an order passed by the trial Court rejecting her application filed Under Section 24 of the Hindu Marriage Act, 1955 (hereinafter referred to as the Act), seeking a direction to the husband/plaintiff to pay an amount of Rs. 2,500/- per month towards interim maintenance together with an amount of Rs. 3,000/- to meet the expenses of the proceedings liable to be incurred in the litigation, the defendant/wife has now approached this Court seeking redress praying for the reversal of the impugned order.
2. I have heard the learned counsel for the defendant/wife-applicant as well as the learned counsel representing the plaintiff/husband-respondent, and have carefully perused the record.
3. The facts in brief shorn of details, and necessary for the disposal of this revision lie in a narrow compass. The plaintiff/husband has filed a petition on 1-7-1997, Under Section 13 of the Act, praying for a decree of divorce. Admittedly the plaintiff had been married with the defendant according to the Hindu rites nine years ago and from their wedlock, three children (two sons and one daughter) were born. The eldest son was aged about 7 years, the second was the daughter aged about 5 years; and the third one was a son aged about 2 years.
4. The divorce had been sought alleging various acts of cruelty against the wife and her desertion in regard to the discharge of the marital obligations for a period of over two-and-half years without any justifiable reason.
5. In the petition seeking divorce, the husband/plaintiff had disclosed his age to be 27 years, and occupation to be that of an agriculturist.
6. During the pendency of the aforesaid petition of divorce, which had been registered as a suit, the defendant/wife moved an application on 22-9-1997, praying for a direction for the grant of maintenance and the expenses liable to be incurred in regard to the litigation as indicated hereinabove.
7. The defendant/wife asserted that while the eldest son was living with the husband, the daughter and the youngest son were living with her in her guardianship. It is alleged that she was being treated with cruelty by the husband and besides committing atrocities, the husband indulged in “marpeet” and also raised a demand for Rs. 20,000/- as dowry but since that demand could not be acceded to on account of the poverty of her father, the husband/plaintiff had turned her out of the matrimonial home warning her that unless she came with an amount of Rs. 20,000/- she will not be allowed to enter the house and will also be killed. The wife asserted that she was being maintained by her father some how or the other and had also to work as a labourer and had no independent source of income. She claimed that she was totally unemployed without any source of income and was facing great difficulty in making both ends to meet as her two children were also residing with her who were to be looked after.
8. The defendant/wife claimed that the total income of the husband was about Rs. 7,200/- per month. It was also claimed that the husband was residing as the member of a joint family along with his father, and the family had 10 bighas of irrigated fertile land which provided an assured source of income to the tune of Rs. 1,50,000/- per year. The husband was a prosperous person having a building in Jawhar Colony, Shivpuri, valued at Rs. 2.00 lacs, which building had also been providing a steady rental income of Rs. 1,000/-per month.
9. It was claimed that apart from the aforesaid source of income, the husband was also dealing in the business of sale and purchase of cereals from which he had an income of Rs. 5,000/- per month. It was also claimed that the husband was also doing the tailoring work which provided an additional income to the tune of Rs. 1,200/- per month.
10. The aforesaid application was supported by an affidavit of the wife sworn on 22-9-1997.
11. The plaintiff/husband objected to the aforesaid application on various grounds. The objection was supported by an affidavit sworn on 6-11-1997. The husband denied the allegations made by the wife. It was asserted that the wife was doing tailoring business and from the tailoring work as well as the work done as a labourer, she had an income of about Rs. 3,000/-per month. It was also asserted that the husband was ready and willing to keep the wife along with him but she did not want to live with him under the influence of her mother and father.
12. The husband asserted that he was working as an agricultural labourer of his father and had an income of Rs. 500/- per month only. It was claimed that apart from this income as an agricultural labourer, he had no other source of income.
13. The order sheet of the suit maintained by the trial Court indicates that efforts were made for reconciliation between the parties on 22-9-1997. The order dated 22-9-1997, passed by the trial Court further indicates that the trial Court had asked some questions from the parties.
14. The trial Court had indicated in the aforesaid order that the wife was not prepared to live with the husband without any justifiable reason while the husband was ready and willing to keep her with him.
15. As has already been noticed hereinabove, the husband had filed his objections in opposition to the application for interim maintenance on 6-11-1997. On that date, the order sheet of the suit indicates that the defendant/wife had prayed for time to file further affidavits.
16. However, instead of granting time for filing further affidavits, the trial Court posted the aforesaid application for arguments on 13-11-1997, on which date the application was adjourned to 22-11-1997.
17. The trial Court vide the impugned order rejected the aforesaid application being of the view that the attitude of the defendant/wife from the very beginning was not to live with the husband. It was also observed that the wife had not disclosed any justifiable ground for not residing with the plaintiff/husband, and since the husband who had sought for a decree of divorce was- prepared to keep the wife along with him and the defendant/wife in her affidavit had not produced any such solid proof which could indicate that the husband had an income of Rs. 7,200/- per month, the wife was not entitled to any amount towards maintenance. The trial Court found that the defendant was entitled to the litigation expenses to the tune of Rs. 200/- only which was directed to be deposited by the husband within one month.
18. The learned counsel for the defendant/wife has strenuously urged that the trial Court has manifestly erred in not determining the real question as to the quantum of income of the plaintiff/husband and the question as to whether the defendant/wife was entitled to the amount of maintenance for maintaining herself according to her family status. It has been urged that the trial Court has acted with manifest illegality in rejecting the application on the erroneous assumption that the grounds indicated in her application were not sufficient to justify living by her separately from her husband. It is pointed out that the expenses of the proceedings have been determined with a total non-application of mind in an arbitrary manner without realizing that expenses of the proceedings include not only the expenses relating to Court Fee, etc., but also the incidental expenses covering payment of counsel’s fee and journey expenses, etc.
19. It is further urged that in any view of the matter, the question in regard to the validity or justifiability of the grounds for desertion or not residing with the plaintiff were wholly alien to the proceedings Under Section 24 of the Act, and the question in regard to the entitlement of the maintenance or expenses of the proceedings had to be decided irrespective of the claim of the plaintiff in regard to the basis of the suit or the merits of the pleas on which the decree for divorce was sought for.
20. The contention is that the entire approach of the trial Court stands vitiated in law and has resulted in manifestly erroneous conclusions.
21. The learned counsel for the plaintiff/husband has tried to support the order of the trial Court and has pointed out that the affidavit filed by the wife in support of her application was liable to be discarded altogether as it had not been sworn properly. In this connection, it has been pointed out that all the paragraphs of the affidavit filed by the wife had been sworn to be true on the basis of her knowledge and belief.
22. The contention is that in an affidavit wherein the assertions made in its various paragraphs are sworn to be correct oil the basis of “knowledge and belief” of the deponent, could not be taken to be an affidavit duly sworn as required by law and in this view of the matter, the entire assertions made in the affidavit which constituted the only evidence led by the defendant/wife in support of her application was liable to be discarded.
23. In the aforesaid view of the matter, it is urged that no interference is called for in the impugned order as the application filed by the wife had to be treated to be such an application in support whereof there was no evidence and in that view of the matter, no case could be said to have been made out for the grant of any relief as claimed by her.
24. I have given my thoughtful consideration to the rival contentions.
25. In the present case, what I find is that the trial Court has rejected the application of the wife/applicant which had been filed for the interim relief as contemplated Under Section 24 of the Act, only on the premise that the wife had failed to make out sufficient ground for not residing with the plaintiff/husband. The observation to the above effect indicates only the conclusions of the trial Court without disclosing any reason. In fact, what is apparent is that the trial Court had not even referred to the grounds enumerated in the application filed by the wife which according to her had created a situation whereunder it was not possible for her to reside along with the plaintiff/husband.
26. In any view of the matter, it seems to me that for determining the claim for maintenance pendente lite and the expenses of proceedings as contemplated Under Section 24 of the Act, what ought to be kept in mind is that in case the applicant has no independent means he or she is always entitled to the maintenance and expenses, unless good cause is shown to deprive him or her of it. The good cause for depriving an applicant for the maintenance and expenses of the proceedings could be the availability of an assured independent income derived from the property, service, occupation, or other sources which may satisfy the genuine needs providing support to him or her keeping in view the status of the family to which he or she belongs and not the income of the wife’s parents or other relations which cannot be taken into account so as to constitute good cause for not granting interim maintenance and expenses of the proceedings.
27. I must hasten to add here that there may be cases where the character and gravity of the conduct is such which may be found repugnant to the concept and the institution of marriage and it may be wholly unjust to ignore them while considering the question of releasing or withholding the benefit contemplated Under Section 24 of the Act, but it all depends on the facts of each case and cogent reasons have to be recorded for withholding the grant of the benefit secured Under Section 24 of the Act.
28. A wife has a right to be maintained by her husband and the fact that her father is supporting her could never be a ground for depriving her the maintenance as contemplated Under Section 24 of the Act, which clearly stipulates that where the wife has no independent income sufficient for her support and to meet the necessary expenses of the proceedings, she may maintain an application under this provision. If the object of the Legislature had been to deprive the wives who were being maintained by their parents for the maintenance and expenses the word ‘independent’ would not have been used in the aforesaid provision.
29. It may further be emphasised that while considering the application for granting or withholding a relief claimed for interim maintenance and expenses of the proceedings as contemplated Under Section 24 of the Act, the only relevant consideration should be whether the party applying for the relief is possessed of sufficient independent means or not to maintain herself. The rejection of an application on the ground that the wife was disentitled to any relief Under Section 24 of the Act, for the reason that she was unwilling to live with her husband cannot be taken to be a relevant consideration at all at the stage of the suit as it would amount to prejudging the issue which is required to be decided at the final disposal of the suit after considering the evidence and the materials brought on the record. In the circumstances, the wife’s refusal to live with the husband could not be taken to be a good cause for rejecting the application of the wife seeking relief Under Section 24 of the Act.
30. In fact, it seems to me that the proceedings Under Section 24 of the Act, provide neither the occasion nor the stage for the Court to enquire into the veracity or the weight to be attached to the allegations and the counter allegations of the parties in the pleadings relating to the merits of the claim regarding the decree sought for Under Section 9 or 13 of the Act, by the plaintiff, and to go into such allegations would clearly introduce extraneous considerations and will clearly amount to prejudging the main issue as indicated hereinabove.
31. The trial Court, therefore, clearly fell in error in rejecting the application of the defendant/wife on the assumption that her conduct of refusing to live with her husband was such which could not justify the grant of any relief Under Section 24 of the Act. In fact, the conduct in question of the wife was wholly irrelevant and immaterial for the disposal of the application for the relief contemplated under the aforesaid provision on the facts and circumstances of the present case.
32. The learned counsel for the plaintiff/husband has strenuously urged that the defendant/wife had not led any evidence whatsoever in support of her allegations made in the application seeking the relief sought for under the provisions of Section 24 of the Act. What has been urged is, as noticed hereinabove, that the affidavit which had been filed in support of the application was liable to be discarded on account of its having been defective.
33. In this connection, suffice it to say that in interlocutory matters, it was open to the trial Court take on record evidence in the shape of affidavits. Although affidavits are not included in the definition Under Section 3 of the Evidence Act, but they could be used as evidence only if for sufficient reason the Court passes an order to that effect.
34. However, the affidavit must indicate clearly as to what facts are based on the personal knowledge of the deponent and as to what facts are based on information which the deponent believes to be true. Otherwise, it is liable to be rejected.
35. In the present case, the affidavit filed by the wife/defendant did not comply with this requirement.
36. It may be noticed that in its decision in the case of A. K. K. Nambiar v. Union of India and Anr., reported in AIR 1970 SC 652, the Apex Court had clarified that the reasons for verification of affidavits are to enable the Court to find out which facts can be said to be proved on the affidavit evidence of rival parties. Allegations may be true to knowledge or allegations may be true to information received from persons or allegations may be based on records. The importance of verification is to test the genuineness and authenticity of allegations and also to make the deponent responsible for his allegations. In essence verification is required to enable the Court to find out as to whether it will be safe to act on such affidavit evidence. In the absence of proper verification, affidavit could not be taken to be admissible in evidence.
37. I am of the clear opinion that in a case where the affidavit does not state as to what facts are based on the personal knowledge of the deponent and what facts are based on the information and believed to be true, the Court ought to permit a fresh affidavit to be filed by the deponent making the above points clear.
38. Rules of procedure are meant to subserve the cause of justice and not to frustrate it. In the present case since the affidavit filed by the wife was defective and was liable to be discarded, the trial Court ought to have given an opportunity to the wife to file a fresh affidavit in support of her application, and further the parties should have been allowed to lead evidence in support of their respective cases on the questions relating to the determination of the factors which ought to be taken into account while fixing the liability in regard to the award of interim maintenance and expenses relating to the proceedings contemplated Under Section 24 of the Act.
39. As has already been noticed hereinabove, the wife had specifically requested the trial Court for providing such an opportunity to lead evidence but instead of granting the prayer, the trial Court proceeding in an arbitrary manner had straightaway posted the application for hearing arguments and final disposal.
40. Considering the facts and circumstances as brought on record, and my conclusions indicated hereinabove, sufficient ground has been made out for interference by this Court.
41. In the result, this revision succeeds in part. The impugned order passed by the trial Court is consequently set aside with a direction to the trial Court to consider and dispose of the application filed by the wife/defendant for the award of maintenance pendente lite and expenses of proceedings afresh in the light of the observations made hereinabove after affording an opportunity to the parties to lead evidence in the matter relating to the determination of the liability in regard to the award of maintenance pendente lite and expenses of the proceedings, and the quantum thereof.
42. The trial Court shall ensure that the matter in regard to the above is disposed of finally expeditiously within a period not later than four months from the date of production of a certified copy of this order before it.