Ganesan vs Rasammal

Revision petitioner Gansesan is the husband of respondent-Rasammal. He filed H.M.C.P. No. 75 of 1990 in the Court of Subordinate Judge of

Vridachalam under S. 9 of the Hindu Marriage Act for restitution of conjugal rights. During the pendency of the petition, the wife came forward

with I.A. No. 199 of 1992 claiming interim alimony under S. 24 of the Hindu Marriage Act. The trial Court awarded Rs. 250/- per month for the

wife, Rs. 75/- per month for her child and Rs. 5,00/- towards litigation expenses from 1-8-1992 by way of interim alimony. It also directed to

husband to pay the money within two weeks. And this order is challenged in this revision petition

The wife has stated in her affidavit that she was driven out of her husband''s house snatching away her jewels. She has a male child. She is

leading a life of misery, in her father''s house. She requires Rs. 5,00/- per month for herself and Rs. 150/- per month for her child for their

sustenance. She has to be paid Rs. 1,000/- by way of litigation expenses. Her husband owns 10 acres-of garden land and he gets an income of

Rs. 40,000/- per annum from those lands. Revision petitioner denies the same in his counter. Besides he states that he is handicapped to some

extent and he earns only Rs. 5/- or Rs. 7/- per day. He does not own any movable or immovable properties in his name. The Court below has

simply observed that the petitioner has not furnished any evidence to substantiate her plea that her husband is in possession of 10 acres of garden

land and gets an income of Rs. 40,000/- per annum. It has not rendered any specific finding on the means of the revision petitioner. However, it

has awarded interim alimony on the ground that whatever may be the assets possessed by the revision petitioner he is duty bound to maintain his

wife and child and hence the maintenance has to be awarded.

Learned counsel for the revision petitioner submits that learned subordinate Judge has erred in awarding interim maintenance having found that

the wife has failed to prove the means of the husband and there is not justifiable reason for passing the order. And an application for interim

maintenance is not maintainable when the main O.P. is for restitution of conjugal rights filed by the husband. However, S. 24 of the Hindu Marriage

Act reads that 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 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. And the terms of this provision do

not lend support of the claim of the revision petitioner that no order for interim maintenance could be passed when the husband has filed an

application for restitution of conjugal rights. Further it is significant to note that the amount of interim maintenance that one spouse may be ordered

to pay the other must be such as appears reasonable to the Court in the exercise of its discretion and when this discretion has been exercised not

arbitrarily but properly, the revision petitioner cannot have any grievance.

Learned counsel for the revision petitioner next placed reliance on the decision of Swamikannu, J. in Rajambal Vs. Murugappan, . There learned

Judge has held that the making of an order under S. 24 is a matter of discretion with the Court. When an order under S. 24 is made by the Court,

where the substantive proceeding is pending enquiry and disposal of questioned (Record) under S. 115, C.P.C., it is for the High Court to see

whether the discretion vested with the trial Court had been properly exercised. An order for maintenance pendente lite and costs of the

proceedings can be made in any proceeding under the Act, viz., for restitution of conjugal rights, judicial separation, divorce, etc. When the fact of

marriage is acknowledged or proved alimony follows subject of course of the discretion of the Court in the matter having regard to the means of

the parties. This citation far from supporting the case of revision petitioner only substantiates the contention of the wife regarding right to claim

interim maintenance.

In the present case it does not appear that the wife has produced any substantial evidence in support of her claim that her husband owns 10

acres of garden land and gets Rs. 40,000/- per annum from the same. However, there is no categorical denial of ownership of land in the counter

of the husband. The counter reads that the claim of the wife is exaggerated. It further says that the quantum of income given in the petition is far

from correct. From this lam not persuaded to accept the contention of the revision petitioner that he has absolutely no means of any kind.

The right of a wife for maintenance is an incident of the status or estate of matrimony. In general, therefore, the husband is bound to defray the

wife''s costs of any proceeding under the Act and to provide for her maintenance and support pending the disposal of such proceeding. The

doctrine of alimony, which expression in its strict sense means allowance due to wife from husband or separation from certain causes, has its basis

in social conditions in England under which a married woman was economically dependent and almost in a position of tutelage to the husband and

was intended to secure justice to her while prosecuting or defending proceedings under matrimonial law. It is also recognised that when the wife

has separate means sufficient for her defence and subsistence she should not be entitled to alimony nor costs during the proceeding; and if the

husband has neither property nor earning capacity the Court would not award any interim alimony. It is on these principles that the law relating to

matrimonial causes provides rules for payment of maintenance pendente lite and expenses of proceedings by the husband of the wife. This section

adopts those principles and goes one radical step further when it lays down that any such order can be made not only in favour of the wife but also

in favour of the husband. Any decision under the present section on the subject of alimony must necessarily turn on the circumstances of each case

and not fixed rules can be expected on the question. And considering the fact that the present respondent has no wherewithal to support her, it

cannot be said that the discretion vested with the trial Court had not been properly exercised.

Learned counsel for the revision petitioner has placed reliance on two more decisions. In Shakuntala Vs. Amar Nath, the trial Court fixed the

maintenance allowance of the petitioner at Rs. 30/- per mensem and litigation expenses payable to her at Rs. 125/- under S. 24 of the Hindu

Marriage Act. That order was set aside by the High Court on the short ground that the trial Court has not given any reasons for its conclusions.

The trial Judge has neither referred to any affidavit or counter-affidavit of the parties; nor has she stated that she believes or disbelieves, or partially

believes or disbelives any of the affidavits or any evidence led by the parties. An order of that type, which does not contain either the facts or the

grounds on which it is based is no order in the eye of law. In Smt. Satish Bindra Vs. Surjit Singh Bindra, the point involved was whether the order

passed by the trial Court under S. 24 of the Hindu Marriage Act was appealable under S. 28 thereof, and, therefore, the revision petition could be

entertained. And on merits ii found that the trial Court has not passed any order in accordance with law on the application of the petitioner. If the

averments of the petitioner contained in her affidavit were not considered enough, she should have been afforded an Opportunity to give

supplementary affidavit or affidavits on any point required by the Court or is the Court so required even to lead evidence in the course of a

summary inquiry, at the end of which proper order should have been passed. Since the order was not supported by any reason and did not discuss

the pros and cons of the rival versions of the parties relating to the quantum of income of the husband, it had to be set aside. Needless to say that

these two decisions cannot come to the rescue of the revision petitioner. I therefore, find no merit in this civil revisio; petition.

In the result, the civil revision petition is dismissed. No costs.

Petition dismissed.