Sonia Wife Of Yashpal Khanna vs Yashpal Kishorilal Khanna on 25 April, 1988

Bombay High Court
Sonia Wife Of Yashpal Khanna vs Yashpal Kishorilal Khanna on 25 April, 1988
Equivalent citations: 1988 (2) BomCR 601
Author: A Tated
Bench: A Tated


JUDGMENT

A.D. Tated, J.

1. This revision is directed against the order dated 1st September, 1986 passed by the learned Judge of the City Civil Court, Bombay on Notice of Motion No. 2689 of 1986 arising out of M.J. Petition No. 1078 of 1985 whereby applicant-wife’s application for interim maintenance and expenses of the proceedings under section 24 of the Hindu Marriage Act has been dismissed by the learned judge.

2. The applicant Mrs. Sonia and the opponent Yashpal Khanna were married according to Hindu Vedic rites on 1-8-1984 at Bombay. Soon after the marriage the parties fell out and the opponent-husband Yashpal Khanna on 18th November, 1985 filed a petition for divorce. In those proceedings the applicant-wife took out Notice of Motion No. 2689 of 1986 for interim maintenance at the rate of Rs. 4000/- p.m. and costs of the proceedings amounting to Rs 6000/-. Her case was that she had no independent source of income for her maintenance and for meeting the expenses of the proceedings. According to her, the capital account of her husband in the year 1984-85 was about Rs. 2,50,000/- and in the year 1985-86 about Rs. 2,80,000/-. According to her, the income of her husband, as disclosed in his income-tax return for the years 1982-83, 1983-34, 1984-85 and 1985-86 was Rs. 48,000/-, Rs. 48,000/-, Rs. 54,000/- and Rs. 56,000/- respectively. Besides, he had income of interest of Rs. 22,000/- in the year 1984-85 and Rs. 24,000/- in the year 1985-86. Out of the total income of Rs. 50,000/- and Rs. 56,000/- for the said years respectively, she has also submitted that the petitioner opponent also had Rs. 11,000/- in C.D.S., Rs. 16,000/- in P.P.F. and Rs. 8000/- in National Savings Certificates. She submitted that as against this income, the personal withdrawal of her husband during the year 1984-85 was Rs. 7,300/- and in the years 1985-86 it was Rs. 8400/-. Thus the monthly household expenses of her husband during the said period were to the tune of Rs. 600/- to Rs. 700/- p.m. She has further stated that the opponent has his own flat to reside and there was no one in his family defendant on him. According to her, taking into consideration the income of her husband and the paltry amount he required for his maintenance, he could conveniently pay Rs. 4000/- to Rs. 5000/- for her maintenance. She has demanded interim maintenance at the rate of Rs. 4000/- and Rs. 6000/- as expenses of the proceedings.

3. The opponent-husband denied that the applicant wife had no independent source of income for her maintenance and for meeting the expenses of the proceedings. According to him, the applicant-wife was a partner in M/s. Kashmirilal & Co. and M/s. R.P. Mehra & Sons and she had yearly income of Rs. 35,000/- from those two firms. She also joined a third firm of M/s. S. Rajesh & Co. started in January 1985. Her yearly Income for the accounting year 1982-83 from that firm was shown at Rs. 34,000/- and for the years 1983-84 and 1984-85 her income has been shown at Rs. 34,000/- per annum from the two firms viz. M/s. Kashmirilal & Co. and M/s. R.P. Mehra & Sons. He submits that apart those sources of income, a large amount of nearly Rs. 2,25,000/- has been lying with the wife as capital income. She has 20% shares in the firm of M/s. Kashmirilal & Co. and 20% shares in M/s. R.P. Mehra & Sons. Thus according to the opponent the applicant has sufficient means of income and as such she was not entitled to the maintenance and the expenses of the proceedings claimed by her.

4. The learned trial Judge after considering the evidence on affidavits adduced by the parties and the documents produced by them, found that the applicant-wife had sufficient means of income for her maintenance and for defraying the expenses of the proceedings and as such she was not entitled to the interim maintenance and the expenses of the proceedings from the opponent-husband. Consistent with these findings, the learned trial Judge dismissed the petition of the applicant-wife.

5. Feeling aggrieved with the order dismissing her petition under section 24 of the Hindu Marriage Act by the learned Judge of the trial Court, the wife has preferred this revision petition.

6. On the contentions raised and the arguments advanced by the learned Counsel for the parties, the following points arise for decision in this case :—

(1) Whether this Court in revision under section 115 of the Civil Procedure Code cannot interfere with the order of dismissal of application under section 24 of the Hindu Marriage Act passed by the trial Court ?

(2) Whether applicant-wife has no independent income sufficient for her support and for meeting the necessary expenses of proceedings?

(3) Whether the applicant-wife is entitled to maintenance at the rate of Rs. 4000/- p.m. and the amount of Rs. 6000/- to meet the expenses of the proceedings ?

7. The learned Counsel for the opponent-husband Mr. Vashi contends that the leaned trial Judge on considering the affidavit evidence and the documents produced before him, found that the applicant-wife has sufficient income to support herself and to meet the expenses of the proceedings and, therefore, dismissed the petition under section 24 of the Hindu Marriage Act and this Court in revision cannot interfere with the said finding of the learned trial Judge and cannot award maintenance pendente lite and expenses of the proceedings under section 24 of the Hindu Marriage Act. In support of his contention he relied on the decision in Haji Suleman Ayub Bhiwandiwala v. Narayan Sadashiv Ogale, 84 Bom.L.R. 122. It is a case under the Bombay Rent Act. Section 115 of the Civil Procedure Code was considered in that case and their Lordships of the Supreme Court laid down that section 115 of the Civil Procedure Code applied to jurisdiction alone, the irregular exercise or non-exercise of it or illegal assumption of it and that the section is not directed against the conclusions of law or fact in which the question of jurisdiction is not involved. The expression ‘illegally or with material irregularity’ in Clause (c) of section 115 means errors relating to material defects or procedure, and not to errors of either law or fact after the formalities which the law prescribed have been complied with. The second decision relied on by him is Ratilal Balabhai Nazar v. Ranchhodbhai Shankarbhai Patil & another, . It was also a case under the Bombay rent Act. Their Lordships of the Supreme Court, while considering the provisions of section 115 of the Civil Procedure Code, held that erroneous construction placed upon a statute by the trial Code does not amount to exercising jurisdiction illegally or with material irregularity and would not furnish a ground for interference under section 115 of the Civil Procedure Code. The third decision relied on by him is Maitreyee Banerjee v. Prabir Kumar Mukherjee, . In that case the trial Court had allowed amendment of the plaint. The High Court in revision set aside the order of the trial Court. Their Lordships of the Supreme Court, on going through the amendment, prayed for, were unable to agree with the High Court that the appellant by virtue of the amendment sought, had altered the entire nature of the case or substituted a new cause of action. Their Lordships of the Supreme Court held that the High Court in its power of revision ought not to have interfered in a case like that as no jurisdictional error was involved. The fourth decision relied on by the learned Counsel for the opponent-husband is the State of Haryana v. M/s. O.P. Singhal & Co. Hissar, . In that case the learned Single Judge of Punjab and Haryana High Court held that erroneous decision given on question of law cannot be interfered with in revision jurisdiction. It was a case under the Arbitration Act and the question for consideration was whether unsigned arbitration agreement could be relied upon under section 34 of the Arbitration Act.

8. The learned Counsel next relies on the decision in Shri M.L. Sethi v. Shri R.P. Kapur, . In that case the respondent had filed a suit in forma pauperis against the appellant and his wife for recovery of damages to the tune of rupees seven lacs fortyeight thousand for malicious prosecution. Notice of the petition to sue in forma pauperis was given to the State Government and the appellant under Order 33, Rule 6 of the Civil Procedure Code. Both the Government and the appellant filed objections stating that the respondent was not pauper. The appellant thereafter filed an application for discovery of documents by the respondent for proving that the respondent was not a pauper. The Court thereafter passed an order on February, 23, 1970, directing the respondent to discover on affidavit the documents relating to the bank accounts of the respondent, namely, pass books, cheque books, counterfoils, etc., from March 1, 1963, to the date of filing of the affidavit of discovery, as also the documents in respect of the properties held by him and the personal accounts maintained by him. The respondent did not file the affidavit in pursuance of the said order by March 8, 1970, though he was ordered to file the affidavit of discovery by that date. On March 31, 1970, he moved an application stating that he wanted to file a revision against the order dated February 23, 1970, before the High Court and that two months’ time may be allowed for the purpose. The Court rejected the application for time on April 4, 1970, on the ground that the application for permission to sue in forma pauperis was pending for the last seven years and that the respondent had ample time for filing revision if he was diligent in the matter. The respondent’s Counsel then moved another application on the same day stating that the respondent wanted to adduce evidence and since he had not come to the Court in the expectation that his earlier application dated March 31, 1970, for adjournment would be allowed and the hearing might be adjourned. This application was rejected by the Court. As the Counsel for the respondent reported no instructions and as there was no evidence to show that the respondent was a pauper the Court dismissed the application for permission to sue in forma pauperis and directed the respondent to pay the Court fees within 15 days. The respondent challenged the order directing the discovery of documents and also the order dismissing his application for permission to sue in forma pauperis passed on April 4, 1970, in revision before the Allahabad High Court. The High Court held that the trial Court acted with material irregularity as it did not consider the question of necessity for discovery of the documents or the relevancy of the documents of which discovery was sought and also for the reason that in ordering discovery of the documents relating to personal accounts and pass books, it overlooked the right of the respondent to claim privilege. As regards the order passed on April 4, 1970, dismissing the application for permission to sue in forma pauperis after rejecting the application for adjournment, the Court held that the trial Court betrayed an anxiety to get rid of an application to add to the figures of its disposal. Thus the High Court set aside the order for discovery as well as the order dismissing the application for permission to sue in forma pauperis. The above orders of the High Court were challenged before the Supreme Court in appeal by special leave. The Supreme Court allowed the appeal and set aside both the orders of the High Court and restored that of the trial Court. Their Lordships of the Supreme Court have considered the jurisdiction of the High Court under section 115 of the Civil Procedure Code to interfere in revision with the orders passed by the Court below. After considering the decisions in Rajah Amir Hassan Khan v. Sheo Baksh Singh, (1884)11 Ind. App. 237 (PC); Balalkrishna Udayar v. Vasudeo Aiyar, 44 Ind. App. 261 ; Manindra Land & Building Corporation Ltd. v. Bhutnath Banerjee, ; Abbasbhai v. Gulamnabi, ; Pandurang Dhondi v. Maruti Hari Jadhav, and the decision of the House of Lords in Anismic Ltd. v. Foreign Compensation Commission, (1969)2 S.C. 147 and R.V. Bolton, (1841)1 Q.B. 66, their Lordships of the Supreme Court propounded the law thus :—

“The dicta of the majority of the House of Lords, in the above case would show the extent to which ‘lack’ and ‘excess’ of jurisdiction have been assimilated or, in other words, the extent to which we have moved away from the traditional concept of ‘jurisdiction’. The effect of the dicta in that case is to reduce the difference between jurisdictional error and error of law within jurisdiction almost to vanishing point. The practical effect of the decision is that any error of law can be recokened as jurisdictional. This comes perilously close to saying that there is jurisdiction if the decision is right in law but none if it is wrong. Almost any misconstruction of a statute can be represented as “basing their decision on a matter with which they have no right to deal”, “imposing an unwarranted condition” or “addressing themselves to a wrong question”. The majority opinion in the case leaves a Court or Tribunal with virtually no margin of legal error. Whether there is excess of jurisdiction or merely error within jurisdiction can be determined only by construing the empowering statute, which will give little guidance. It is really a question of how much latitude the Court is prepared to allow. In the end it can only be a value judgment (See H.W.R. Wade, “Constitutional and Administrative Aspect of the Anismenic case”, Law Quarterly Review, Vol. 85, 1959, P. 198). Why is it that a wrong decision on a question of limitation or res judicata was treated as a jurisdictional error and liable to be interfered with in revision ? It is a bit difficult to understand how an erroneous decision on a question of limitation or res judicata would oust the jurisdiction of the Court in the primitive sense of the term and render the decision or a decree embodying the decision a nullity liable to collateral attack. The reason can only be that the error of law was considered a vital by the Court. And there is no yardstick to determine the magnitude of the error other than the opinion of the Court.”

The passage reproduced above clearly indicates that the traditional meaning of the word “jurisdiction” has been extended to a great extent. The difference between the jurisdictional error and the error of law within the jurisdiction has reached almost to a vanishing point.

9. The learned Counsel for the opponent-husband also relied on the decision in V.R. Rajagopalaiah Setty v. N. Radhakrishna, . It was a civil revision petition arising out of the proceedings under Karnataka Rent Control Act, 1961. The learned Single Judge of the Karnataka High Court held therein that so long as there is no error of jurisdiction and so long as there is no material irregularity or illegality in the exercise of jurisdiction by lower Court, High Court cannot invoke power under section 115 in order to correct even wrong appreciation of evidence or wrong interpretation of law or wrong approach made by the Court below in the appreciation of the evidence. It is only the misinterpretation of law relating to some laws like limitation, res judicate or provisions creating the bar of jurisdiction that would seriously affect the jurisdiction of a Court that can be corrected by the High Court under section 115.

10. None of the decisions relied on by the learned Counsel for the opponent-husband is in a proceeding arising under the Hindu Marriage Act (Act 25/1955). The decision relied on by the learned Counsel for the opponent-husband lay down the general principles relating to the exercise of jurisdiction by this Court in revision under section 115 of the Code of Civil Procedure. The learned Counsel for the applicant wife relied on the decision of the Division bench of this Court in Dinesh Gijibhai Mehta v. Smt. Usha Dinesh Mehta, . It is a case under the Hindu Marriage Act and the provisions of section 24 of that Act have been considered therein. On page 176 of the report the law is stated thus :—

“The High Court’s jurisdiction under Article 226 or 227 of the Constitution or section 115 of the Code of Civil Procedure is wide enough to enable it to interfere with the impugned order.”

The learned Counsel for the opponent-husband also relied on the decision in Dhirajben Prabhudas Parmar v. Ramchandra Shambhula Yadav, . It is a decision in a case under the Hindu Marriage Act. The provision of section 24 of the Act are considered therein. It was a revision petition by the wife for enhancement of the maintenance awarded to her by the learned trial Judge. The revision petition was partly allowed and the maintenance amount for the wife was increased from Rs. 280/- p.m. to Rs. 325/- p.m. The learned Counsel for the applicant-wife also relied on the decision in Lallybhai Keshavram Joshi v. Nirmalaben Lalluram Joshi, . It was also a case under the Hindu Marriage Act and the provisions of section 23, 24 and 28 of the Hindu Marriage Act were considered therein. It was held therein that the provisions of section 24 as seen from the wordings of the section itself clearly indicate that they are not controlled by the provisions contained in another section of the Act. In order to award maintenance pendente lite to the wife or the husband as the case may be the Court has merely to consider whether he or she has any independent source of income sufficient for his or her support. If the Court from the evidence before it holds that he or she had no independent income for his or her support, the Court is competent to pass an order for maintenance pendente lite. In order to award maintenance pendente lite under section 24 of the Act, conduct of either party is immaterial . In fact, section 24 of the Act does not entitle the Court to look into the conduct of the either party before passing any such order.

11. Section 115 of the Code of Civil Procedure reads thus :—

“115(1) The High Court may call for the record of any case which has been decided by any Court subordinate to such High Court and in which no appeal lies thereto, and if such Subordinate Court appears-

(a) to have exercised a jurisdiction not vested in it by law, or

(b) to have failed to exercise a jurisdiction so vested, or

(c) to have acted in the exercise of its jurisdiction illegally or with material irregularity,

the High Court may make such order in the case as it thinks fit :

Provided that the High Court shall not, under this section, vary or reverse any order made, or any order deciding an issue, in the course of a suit or other proceeding, except where—

(a) the order, if it had been made in favour of the party applying for revision, would have finally disposed of the suit or other proceeding, or

(b) the order, if allowed to stand, would occasion a failure of justice or cause irreparable injury to the party against it was made

(2) The High Court shall not, under this section, vary or reverse any decree or order against which an appeal lies either to the High Court or to any Court subordinate thereto.

Explanation—In this section, the expression ‘any case which has been decided’ includes any order made, or any order deciding an issue, in the course of a suit or other proceeding.”

While exercising the jurisdiction under section 115 of the Code of Civil Procedure, if it appears to the court that the Subordinate Court has acted in exercise of its jurisdiction illegally or with material irregularity, this Court can set aside or modify the order of the subordinate Court and pass such order as this Court considers to be fit. Similarly, regarding the interim orders pending the suit, if the order is such if it is allowed to stand would occasion a failure of justice or cause irreparable injury to the party against whom it is made, this Court can vary or reverse such order as this Court considers fit. If a wife or a husband in the proceedings under the Hindu Marriage Act is entitled to interim maintenance and the expenses of the proceedings under section 24 of the said Act and if the trial Court by misreading the evidence or by some misconception wrongly dismisses the application of such party for interim maintenance this Court in revision can set aside the order and can award reasonable maintenance to which the party is entitled under section 24 of the Hindu Marriage Act. This High Court has in a number of cases interfered with the orders of the trial Courts for interim maintenance under section 24 of the Hindu Marriage Act. In this connection a reference may be made to the decision in Savita wife of Ashok Bhonsale v. Ashok Babasaheb Bhonsale, Writ Petition No. 672 of 1982 decided on 23rd June 1982. In that case the trial Court had awarded interim maintenance at the rate of Rs. 600/- p.m. and Rs 2000/- for the expenses of the proceedings. The respondent-wife preferred writ petition to this Court and sought enhancement of the interim maintenance and the expenses of the proceedings. It was contended before my brother Pratap, J., in that writ petition that this Court had no jurisdiction to interfere with the order of interim maintenance passed by the trial Court. Relying on the decision in Dinesh Mehta v. Smt. Usha Mehta, , the contention of the respondent that this Court had no jurisdiction to interfere with the order of the trial Court was rejected and after considering the evidence on record this Court enhanced the maintenance from Rs. 600/- to Rs. 600/- and the expenses of the proceedings from Rs. 2000/- to Rs. 5000/-. What could be done in the writ petition for enhancing the interim maintenance under section 24 of the Hindu Marriage Act can also be done in the revision in case the Court is satisfied that the Court below has acted with material irregularity in the exercise of its jurisdiction and it has resulted into failure of justice. As has been held in the case of Dinesh Mehta v. Smt, Usha Mehta, , the question as to the maintenance pendente lite does raise a controversy independently of the suit and the decision on this question concludes the controversy finally, as far as the parties are concerned. In case indigent party is denied interim maintenance and the expenses for defending the proceedings from the opponent who is in a position to pay interim maintenance, the indigent party will not be able to defend itself properly and it may result into failure of justice. Therefore, the Court have ample powers while exercising revisional jurisdiction under section 115 of the Code of Civil Procedure to reverse or vary the orders passed by the trial Court on an application under section 24 of the Hindu Marriage Act and thereby avoid failure of justice.

12. Turning to the merits of the present case, the learned Counsel for the applicant-wife contends that the learned trial Judge has totally misunderstood the case of the applicant. He submits that the applicant-wife was taken as a partner in the firms of her father with a view to accumulate sufficient funds to meet her marriage expenses. He submits that the applicant-wife joined the firm of M/s. R.P. Mehra & Sons on 1-10-1978 and the firm of M/s. Kashmirilal & Co. on 1-10-1980 and she was to retire on or before her marriage so as to avoid any interference in the affairs of the firm by her would be husband. Accordingly, she retired from the firm of M/s. Kashmirilal & Co. on 31-12-1984 and the firm of M/s. R.P. Mehra & Sons on 31-3-1985 i.e., at the end of the accounting years of the two firms respectively. He submits that the capital account of the applicant-wife in M/s. Kashmirilal & Co. of A.Y. 1984-85 i.e., on 31-12-1983 was Rs. 86,655.34. The applicant-wife produced copy of the capital account for the calendar year 1984 i.e., from 1st January, 1984 to 31st December, 1984 which shows that she had withdrawn the following amounts by cheques during the year of her marriage.

    13th July  1984  Jewellery ......  Rs. 19,086.00
   17th July  1984  Jewellery ......  Rs. 12,317.00
   10th Sept. 1984  Furniture ......  Rs.  7,500.00  
   15th Nov.  1984  T.V.      ......  Rs   7,000.00 
   18th Dec. 1984   Furniture ......  Rs.  5,000.00

                                      Rs. 50,903.00
 

The learned Counsel submits that as is clear from the statement filed with the trial Court, the applicant-wife has ceased to be the partner with effect from 31st December, 1984 and at that time the balance to her account was Rs. 45,193.12 and it was transferred to her personal account in M/s. R.P. Mehta & Sons. He submits that the learned trial Judge was wrong in observing that the applicant-wife frittered away the capital overnight by showing expenses on her marriage. I fully agree with the learned Counsel for the applicant that the learned trial Judge was not right in observing that he applicant-wife frittered away her capital. She was taken as a partner by her father in his firm so as to accumulate funds in her account for her marriage and there is nothing wrong for the applicant wife to spend for the jewellery, furniture, T.V. and for other items which are normally required to be given at the time of the marriage commensurate with the financial and the social status of the families of the bride and the bridegroom.

13. The learned Counsel for the applicant-wife also submits that the applicant-wife had capital A/c of Rs. 78,306.72 in M/s. R.P. Mehra & Sons on 31st March, 1984 i.e. A.Y. 1984-85. He submits that the applicant-wife has produced capital account in R.P. Mehra & Sons for A.Y. 1985-86 ending 31st March, 1985 in which her opening balance is Rs. 69,389.12 and she has withdrawn the following amounts during the year :

Rs. 3,161.00 …… Income-Tax
Rs. 1,928.34 …… L.I.C. Premium.

Rs. 25,000.00 …… Purchase of Diamonds.

Rs. 31,000.00 …… Transfer to the A/c of Mrs. Sonia,
Central Bank, Worli Branch
Savings A/c. Marriage expenses.

Rs. 16,000.00

Rs. 80,589.34

He pointed out that after deducing the above expenses the balance to the credit of the applicant-wife was Rs. 39,037.48 and it was carried forward to the next year. The amount of Rs. 31,000/- which was transferred to her account in the Central Bank, Worli Branch, was thereafter invested in M/s. S. Rajesh & Co.

14. The learned Counsel pointed out that the applicant-wife filed a statement of capital A/c for A.Y. 1985-86 ending 31-3-1985 of the firm of R.P. Mehra & Sons from which she had withdrawn the following amounts :—

Rs. 3,426.00 … Income Tax
Rs. 13,000.00 … By Cash
Rs. 39,000.00 … Bedroom renovation at Sunshine.

Rs. 17,200.00 … Bathroom renovation at Sunshine.

Rs. 17,500.00 … Kitchen renovation at Sunshine.

  Rs.   4,700.00     Purchase of utensils and crockery.
  Rs.  94,826.00

 

He submits that after incurring the above expenditure there is a debit balance of Rs. 40,316.05 in the firm of M/s. R.P. Mehra & Sons.
 

15. The learned Counsel for the applicant-wife next submits that the opponent-husband had shown Rs. 59,000/- lying deposited with M/s. S. Rajesh & Co. The applicant-wife has produced the extract of account for the period from 1-1-1985, to 31-10-85 when she ceased to be the partner of the said firm. There was investment of Rs. 38,000/- and the profit for the period from January 1985 to October 1985 to the share of the applicant-wife amounted to Rs. 19,765.24. Thus the total amount to the share capital of the applicant-wife in the firm of M/s. S. Rajesh & Co. was Rs. 57,765.24. As against that the expenditure was Rs. 1842.00 on Income-Tax and Rs. 1881 on L.I.C. leaving a balance of Rs. 52.160.64. He submits that out of the balance of Rs. 52,160.64 M/s. Rajesh & Co. had transferred Rs. 40,316.05 to M/s. R.P. Mehra & Sons because, of the applicants debit balance and as such there was total balance of Rs. 11,844.59 lying with M/s. S. Rajesh & Co. and the amount of Rs. 20,000/- lay with M/s. K.K. Textiles. Accordingly, the applicant had shown that she had Rs. 31, 844.59 in her account on 18-11-1985 when the opponent had filed the petition for divorce. The applicant was required to pay L.I.C. premium of Rs. 3663.60 for two policies every year. He also submits that the applicant had to pay Rs. 20,000/- to M/s. K.K. Textiles as her husband had insisted on her for making the said payment and that amount was not returned by M/s. K.K. Textiles though her Advocate had issued notices for return of that amount. The applicant also submits that M/s. S. Rajesh & Co. was started by her brother and she was taken as partner with an understanding that she would contribute Rs. 50,000/- by way of capital but she could contribute the amount of Rs. 38,000/- only. The learned Counsel submits that the applicant-wife could not contribute full amount of Rs. 50,000/- as agreed upon and she retired from that firm on 31-10-1985.

16. The learned Counsel for the applicant-wife submits that accounts submitted by the opponent-husband show that before the marriage he was not spending more than Rs. 600/- p.m. towards his personal expenses and after marriage he was not spending more than Rs. 700/- for the family expenses. According to the learned Counsel, the applicant-wife had to spend a lot for the renovation of kitchen, bathroom and bedroom and for other sundry expenses. Thus, by the time she was driven away from the house by the opponent-husband and the opponent-husband filed petition against her on 18-11-1985, she had no independent source of income for her maintenance and for meeting the expenses of the litigation. He submits that the applicant is residing with her father from the time she was driven away from the matrimonial house by the opponent and her father has been spending for her maintenance. According to the learned Counsel, the applicant is entitled to maintenance commensurate with her standard of living. He points out that the applicant is a graduate from Bombay University. She hails from a wealthy family and is accustomed to a high standard of living. She was given in marriage in a family which was equally affluent. He submits that her husband has capital A/c of Rs. 3,00,000/- and the net income of Rs. 50,000/- per year and there was none in the family dependent on him except his wife. The statement of account submitted by him, according to the learned Counsel, showed that he was not spending more than, Rs. 700/- p.m. on the family expenses. Thus, according to the learned Counsel, the applicant-wife is entitled to the maintenance at the rate of Rs. 4000/- p.m. and Rs. 6000/- for the expenses of the litigation.

17. The learned Counsel for the opponent contends that the applicant has sufficient funds with her and as such she in not entitled to interim maintenance and any amount for meeting the expenses of the litigation.

18. The learned Counsel for the opponent-husband advanced no arguments on the amount of maintenance and the expenses of the litigation which may be allowed to the applicant-wife in case it is found that she has no independent source of income and she is entitled to the interim maintenance and for meeting the expenses of the litigation.

19. After scrutinising the accounts with the three firms mentioned above, I find that the learned trial Judge was not right in doubting the marriage expenses the applicant had to incur, the expenses she had to incur for purchasing jewellery, furniture and other articles at the time of the marriage and the expenses she had to incur for the renovation of the bedroom, kitchen and bathroom at her matrimonial house. The applicant has produced zerox copies of the vouchers with her affidavit dated 7th December, 1987 in support of the debit entries made in the account books of the aforesaid firms. Consequently, I find that on the day the applicant applied for interim maintenance and for the expenses required for the litigation, she had no independent source of income and at the same time her husband i.e., the opponent had annual income of Rs. 40,000/- to Rs. 50,000/- without any liability to maintain any other family member. His requirements also did not amount to more than Rs. 700/- p.m. i.e. Rs. 8,400/- per annum. Therefore, the opponent has sufficient means to pay for the maintenance of his wife and also for meeting the expenses of the litigation. In considering what should be the quantum of maintenance, the Court must take into consideration the income of the spouses and the needs of the claimant having regard to the status of the parties, their family background, the standard of living to which the claimant has been accustomed, legal and other obligations of the person liable to make payment and other relevant circumstances. Taking into consideration all those factors, in my opinion, the applicant-wife is entitled to maintenance at the rate of Rs. 1600/- p.m. and Rs. 4000/- for meeting the expenses of the litigation. The Notice of Motion for maintenance under section 24 of the Hindu Marriage Act was taken out by the applicant-wife in the trial Court on 23rd June, 1986 and since then the applicant-wife is entitled to the maintenance at the rate of Rs. 1600/- p.m. and Rs. 4000/- for the expenses of the proceedings.

In the result, the Civil Revision application is allowed. The order of the trial Court dismissing the petition under section 24 of the Hindu Marriage Act is set aside. The opponent-husband is directed to pay maintenance at the rate of Rs. 1600/- p.m. for the period from 23-6-1986 and Rs. 4000/- for meeting the expenses of the proceedings. The arrears of maintenance upto 31st of March, 1988 shall be paid in two equal instalments. Half of the amount shall be paid within 3 months from today and the remaining half shall be paid within the next three months. The maintenance for April 1988 shall be paid on or before 5th May, 1988 and for the subsequent period till disposal of M.S. Petition No. 1078 of 1985 on or before 5th of every succeeding month. The amount of Rs. 4000/- for meeting the expenses of the proceedings shall be paid by the opponent within one month from today.

The opponent husband shall pay the cost of this revision to the applicant-wife and bear his own. Hearing fees is quantified at Rs. 1000/-.

The rule is made absolute accordingly. The hearing of the proceeding in the trial Court is expedited.

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