Kamlesh Kumari vs D.P.Khajuria

Arun Kumar Goel, Judge.

Appellant (herein after referred to as ""the wife"") has filed this appeal against the order dated 4121995 wherein she has been allowed

maintenance pendentilite at the rate of Rs. 1500/per month w.e.f. 2731991 and Rs. 3000/ as litigation expenses. This order was passed on the

application of the wife that she had filed in matrimonial lis filed by the respondent (hereinafter referred to as ""the husband"") before the trial court.

According to appellant wife the amount granted is inadequate, therefore, it is liable to be enhanced, whereas in Cross Appeal filed by the husband

it has been prayed that since the amount is on higher side it is required to be reduced.

During the course of pendency of this appeal an attempt was made for reconciliation between the parties which did not bear any fruit, hence

both the appeal were heard, together and are being disposed of by this common judgment.

So far provisions of Section 30 of Jammu and Kashmir Hindu Marriage Act are concerned, those are analogous to the provision of Section 24

of the Hindu Marriage Act 1955 (Central Act). In both these provisions there is nothing stated as to what is the amount of maintenance that is to

be fixed.

However, under the provisions of Section 36 of the Divorce Act there is specific provision that 1/5th of the husbands' income is to be allowed

as maintenance pendentilite But then the question that needs consideration in the present case is that in the absence of there being any specific

provision under the Hindu Marriage Act how the matter is to be sorted out. In this behalf it may be worthwhile to observe that there cannot be any

rigid or hard and fast rule whereby the maintenance pendentilite can be fixed. All that has to be kept in view by the courts while assessing

maintenance pendentilite is that it should be reasonable in the given situation as also should be enough to make a reasonable living in favour of the

spouse and where it is allowed, it should not be ridiculously low and it should not be too excessive. Circumstances of each case vary which have to

be taken note of while assessing the quantum of maintenance pendentilite. Primary thing to be seen is to what social status of life the parties belong

to. what is their way of living as also their lifestyle, how they are placed in the society and whether there are any children if so, with whom they are

residing, these are some of the illustrative instances which have to be taken note of but these are not exhaustive.

In the present case, husband was working as an Assistant Executive Engineer in the and after making compulsory deductions as well as after

defraying his medical expenses the net amount that is available to the husband is something around Rs. 6500/ to Rs 7500/ per month. So far

affidavit regarding the ailment sustained by the husband is concerned, it was served upon the learned counsel for the wife on 1221998, and is

evident from the endothersement made on it and till the final hearing of the matter, nothing to the contrary had been brought on record. Thus the

averments made have remained uncontroverted.

Learned counsel for the parties were not at variance that the parties are issueless. That being so, the question that needs consideration in the

given situation is what would be reasonable maintenance pendentilite that would meet the ends of justice in the circumstances of this case as also

keeping in view the income of the husband and the ailment from which he is suffering. As already of served it does not have to be unreasonable and

penal in character, at the same time it does not have to be ridiculously low Taking into account overall circumstances of this case, it is felt that Rs.

2000/ per month as maintenance pendentilite would be fair and reasonable amount that the wife should get from the husband. That being so it is

ordered accordingly.

It is however made clear that this amount of Rs. 2000/ as maintenance pendentilite would be payable to the wife w.e.f 1.1.2000 onwards during

the pendency of the proceedings before the trial court till those are terminated either way. Husband is further directed to ensure that this amount is

remitted by him either through money order or Bank Draft at his own expenses, to the wife This amount suggests almost 1/5th of the net income of

the husband.

In 1977 Jammu and Kashmir Law Reporter 562, Shrimati Sudharshan Kumari and Another Vs. Shri Chaggar Singh : a learned Judge of this

court while dismissing the revision of the wife in whose favour maintenance of Rs. 50/ per month had been allowed when the husband was drawing

a salary of Rs. 3307 it was observed as under

Moreover the amount of Rs. 50/ as maintenance allowance per month would not appear to be inadequate keeping in view the small pay which the

respondent was drawing and also in view of the fact that besides himself he had to maintain his old parents, also. In a number of judgements High

Courts have held that in the absence of any specific provision in this regard in the Act or the Rules framed thereunder, ordinarily one fifth of the net

income of the respondent should be allowed as maintenance in favour of a party u/s 24 of the Act. This view is based on a provision of law laid

down in the Indian Divorce Act/ But there being no such provision in the Act, this rules may not be held to be universally applicable in all cases and

no violation of such a rule can be termed as arbitrary, if on the facts of a particular case it appears that to follow the rule strictly would not be in

accordance with justice, equity and good conscience. Even if it be conceded that the amount of maintenance should not have been less that onefifth

of the net income of the respondent, it cannot be said that in the instant case the award of Rs. 50/ per month as such maintenance was inadequate

or was violative of the rule of natural justice or was against propriety. In view of the fact that the net income of the respondent was about Rs. 330/

a month the onefifth of this amount would not exceed Rs. 60/or so per month. If the learned trial Judge has departed from this commonly accepted

rule, it was not that he had no reasons for making such departure"".

In AIR 1969 Orissa 12, Prasna Kumar Patra Vs. Smt. Sureswari Patrani, it was observed as under :

There is no doubt that the wife is entitled to certain amount of maintenance. But the question is : What should be the reasonable amount ? As

for maintenance pendents lite, courts generally allow it at onefifth the income of the husband after necessary deductions. Under the Indian Divorce

Act the maximum alimony pendente lite has been fixed at onefifth the net income. Under the Hindu Marriage Act no such limit has been prescribed.

In the absence of special circumstances, maintenance should be allowed at onefifth the net income of the husband. As regards litigation expenses, it

should be reasonable. Mukhan Kunwar vs. Ajeet Chand and AIR 1958 Raj 322"".

In this behalf reference can also be made to AIR 1958 Rajasthan 322 : Mtikan Kunwar vs. Ajeet Chand, AIR 1987 Rajasthan 159 : Dharam

Chand Vs. Smt. Sobha Devi. AIR 1965 Himachal Pradesh 12, Smt. Sushila Devi vs Dhani Ram and Another, AIR 1979 Bombay 178, Dinesh vs.

Usha and AIR 1985 Madras 195, L.R. Rajendran vs. Gajalakshmi.

Learned counsel appearing for the wife made a strenous attempt to pursuade the court by submitting that at least 1/3rd of the net income of the

husband should be allowed as maintenance pendentilite. though he orally submitted that he is supported by law in that behalf, but nothing was

brought to my notice.

As already observed, there is no hard and fast Rule on the basis whereof maintenance pendentilite has to be assessed. In this behalf observations

of Madras High Court in the case of L.R. Rajendran Vs. Gajalakshmi (supra) may be extracted :

The amount payable by the husband to the wife is usually called alimony which signifies literally nourishment or sustenance. This word has not

been used in this section because the primary signification of the work is maintenance to the wife and it is not in that sense, that the word

maintenance is used in this section because this section provides for maintenance for the husband also. The maintenance means provisions for food,

clothing and habitation and other necessaries for the support of the wife or the husband. This Section 24 of the Hindu Marriage Act deals with

temporary alimony which is synonymous with the terms alimony pendentilite or alimony and interim. The question whether the petitioner should be

granted interim maintenance is to be decided first by the Court. Thereafter the quantum that should be awarded is left to the discretion of the court,

and that discretion should not be arbitrarily exercised but should be exercised judicially to serve the interests of justice. The Hindu Marriage Act

itself has not set any limit to the maintenance awardable under Section 24. This section empowers the court to award such sum as it may seem to

the court to be reasonable. What is a resonable amount must differ from case to case. Neither a minimum nor a maximum percentage of the

respondents income can be fixed for the maintenance allowance. The quantum must depend on the circumstances of the case. No mathematical

proportion of the respondent's income is to be awarded. Following the practice under Section 36 of the Indian Divorce Act, it was held in Prasana

Kumar Vs. Sureswari AIR 1969 Orissa 12 that ordinarily in the absence of special circumstances onefifth of the net income of the respondent

should be allowed. In this regard, the decisions in Mukan Kanwar vs. Ajit Chand AIR 1961 Raj 51. Sushila Devi Vs. Dhani Ram AIR 1965 Him

Pra 12 and Dinesh Vs. Usha AIR 1979 Bom 178 may be useful. Onefifth of the net income of the respondent towards interim maintenance is not

warranted and the rule has no place in the Hindu Marriage Act, as Section 24 itself expressly states that the interim maintenance should be a

reasonable amount. For fixing the quantum, it is only the net or disposable income of the respondent that should be taken into account. In the

determination of the amount which would be just and proper such circumstances as the ability of the parties to work and earn, their financial

condition, their status and position in life will all have to be taken into consideration. The court should consider the means and the income of the

parties the nature of the litigation and allied circumstances and the equities of the parties should be adjusted"".

In view of the aforesaid discussion CIMA No. 8/ 1996 is partly allowed, thereby maintenance pendentilite is enhanced from Rs 1500/ to Rs.

2000/ per month. This amount will be payable w.e.f. 1.1.2000 during the pendency of matrimonial proceedings before the trial court and will be

remitted by the husband on or before 15th of each month either by means of money order or by a Bank Draft, in either case husband will bear the

expenses in that behalf, and Cross Appeal No. 150/1996 filed by the husband is hereby dismissed.

A sum of Rs. 27.000/ has been paid by the husband to the wife by means of a Bank Draft No. 433762 dated 24.1.2000 and sum of Rs.

55.750/ by means of Cheque No. 992529 dated 20.2.2000 drawn in favour of the appellant wife and a further sum of Rs. 1750/ in cash, thus in

all Rs. 84.500/ have been received by the wife in full and final settlement of the claim of arrears of maintenance upto 31.12.1999 at the rate of Rs.

1500/ per month and w.e.f. 1.1.2000 at the rate of Rs. 2000/ per month. The amount of Rs. 2000/ for the month of January 2000 has been

accepted by the wife subject to her rights in appeal that she may be advised to file

Records of the case is here. Registry is directed to send it forthwith to the trial court, where the parties are directed to appear on 26.2.2000,

on which date the trial court will frame issues if not already framed. It is agreed and undertaken on behalf of the parties that immediately after

framing of issues within two weeks as per law they will file their respective list of witnesses that they intend to examine in this case strictly in terms

of the provision of order XVI CPC. It is further agreed and undertaken that in case either of the parties failed to file the list of witnesses, it will

bring evidence at its own risk and responsibility without making any grievance in that behalf at any stage of the proceedings hereafter before any

court. Trial court is directed 10 take up this case by not fixing it for a date of more that 15 days, keeping in view of the fact that matrimonial

proceedings were initiated on 27.3.1991. This direction is prememptory.

Registery will ensure that the record o"" the case is made available to the trial court well before the date fixed so that he is in n position to

proceed in accordance with this judgment.