Katta Raghavulu vs Katta Bharatamma

Hon''ble Mr. A. Sambasiva Rao, Acting Chief Justice

The question that is passed in this civil Miscellaneous Appeal is whether the court, while granting interim maintenance u/s 24 of the Hindu Marriage Act is bound to award maintenance not exceeding 1/5th of the net income of the other spouse. Let us first notice the material facts. The appellant before us filed O.P. 51 of 1972 in the Subordinate Judge''s court, Chirala for divorce from his wife, the respondent. She is not his first wife. He had married earlier, but the first wife died. Later, he married the respondent. He filed the petition for divorce on the ground that the respondent was living in adultery. Pending the petition, the respondent filed I.A. No. 642 of 1973 u/s 24 of the Hindu Marriage Act for interim maintenance and for legal expenses. According to her, the husband had 14 acres of very good fertitle land.

The husband resisted the application saying that she had one acre of land of her own and cash assets of Rs. 4,000/- in addition to gold. He had only 9 acres of dry land his net income was only Rs. 1,000/-.

The lower court though that the respective estimates of the wife and the husband of the total annual income at Rs. 10,000/- and Rs. 1,000/- respectively are either exaggerated or very low. If left that the annual income could safely be estimated at atleast Rs. 2,000/- Having regard to the income and the circumstances, it is finally directed that the husband should pay to the wife Rs. 200/- towards litigation expenses and interim maintenance at the rate of Rs, 70/- per month. It is this order that is challenged before us by the husband.

Sri M. Ramaiah does not dispute the right of the wife to get interim maintenance; nor does he dispute the amount of Rs. 200/- awarded by the lower court towards litigation expenses. His main challenge is directed against the quantum of Rs. 70/- per month awarded towards maintenance His argument is mainly directed to urge before us that in no circumstances the interim maintenance should exceed one-fifth of the total net annual income or the other resource. Since the lower court estimated the annual income of at Rs. 2,000/- the learned counsel''s contention is that the maintenance should not have exceeded Rs. 400/- per year.

The justification for this argument is the inspiration which he, along with two learned judges of other High courts, has derived from sec. 36 of the Indian Divorce Act. That section which provides for alimony pendente-lite says in the proviso that such alimony shall, in no case, exceed one fifth of the husband''s average net income for the three years next proceeding the date of the order. Patently proceeding on this principle a single Judge the Rajasthan High court held in Mukan Kunwar v. Ajeetchand AIR 1958 Rajasthan 322 that the courts generally allow maintenance pendente lite at one-fifth the income of the husband after deductions on account of income tax and provident fund. To support this proposition, the learned Judge drew support horn the aforesaid provision of the Indian Divorce Act. Likewise, the then learned Chief Justice of the Orissa High Court in Prasana Kumar Patra Vs. Smt. Sureswari Patrani, found that the net income of the husband was Rs. 60/- per month and awarded only Rs. 12/- to the wife as interim maintenance as that amount represents one-fifth of the income of the husband. It may also be noted that the learned Chief Justice said that it was with particular reference to the conduct of the wife also, He found that she refused to stay with her husband as a reason of which the husband had to file a suit for restitution of conjugal rights. In S.T. Desai''s edition of Mulla''s Hindu Law (14th edition) there is an observation at page 800 to the effect:

Where the parties are unable to agree, the normal proportion of the amount of alimony allotted to the wife is one-fifth of the total income of the husband and wife less the wife''s income.

At the same time the author noticed the more recent trend in England which was not to be bound by any rigid arithmetical calculations but was being fixed having regard to the disposable income of the husband and the income of the wife and to assess the amount after taking into consideration all the facts and circumstances of the case including the conduct of the parties.

We are unable to agree with the view expressed by the Rajasthan and Orissa High Courts in the aforesaid decisions and the observation made in the Mulla''s Hindu law. In the first place, the rule that maintenance pendente lite shall not in any case exceed one-fifth of the net income of the husband has no place in the Hindu Marriage Act of 1955. On the other hand sec. 24 of that Act, which is the material provision, clearly lays down that the respondent should be directed to pay to the petitioner 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. In other words, the Act has left the discretion to the court to fix the monthly maintenance, at the same time directing that the discretion will have to be exercised in the light of the petitioner''s income, the respondent''s income and the circumstances of the case. Having taken all the material features of the case into consideration, the court is empowered to fix that amount as maintenance as it may seem to it to be reasonable. This is far from limiting the interim maintenance to something lower than one-fifth of the other spouse''s income. There is no warrant at all to import the principle of sec. 36 of the Indian Divorce Act into the Hindu Marriage Act. The latter Act is made specially for persons who are Hindus and it is conceived made in the light of the sociological, historical and other circumstances of the people who follow that religion. Moreover, the Indian Divorce Act was made in the year 1869 while the Hindu Marriage Act was enacted in the year 1955. The social consciousness of the society and consequently that of the Parliament and the courts have undergone radical changes in this intervening period of nearly 90 years. Nobody can afford to be blind to the evergrowing need for social justice. Had the Parliament intended to impose a restriction on the quantum of interim maintenance similar to the one in the Indian Divorce Act, it would not have couched the power of the court under sec. 24 in such wide terms. There is no warrant and certainly no justification in the social circumstances for awarding something less than one-fifth of the income to the petitioner reserving four-fifths to the respondent, thus placing the petitioner-spouse at great disadvantage. In any case, the rule of the interim maintenance being less than one-fifth of the total income is contrary and repugnant to sec. 24 of the Hindu Marriage Act under which interim maintenance has to be decided.

That section gives power to the court to award such maintenance to the petitioner as would seem to be reasonable to it in the light of the incomes of the parties and the circumstances of the case. It may be in one case that the petitioner may be a strictly person and may requires constant medical and other facilities requiring heavy expenditure. In such a case the petitioner is certainly entitled to have much higher proportion of the income. Similarly the respondent may have several dependents besides the petitioner to maintain. In such an eventuality, the rate of maintenance would be lesser. These are illustive cases and we are only anxious to emphasize that having regard to the circumstances of the case and the parties'' incomes, the court has to fix a reasonable rate of monthly maintenance to the petitioner. That is clearly the purport and meaning of sec. 24. To put it otherwise is to contravene the clear provision of sec. 24 and the social conscience of the community. We consequently express our respectful dissent from the view expressed by the Rajasthan and Orissa High Courts in the aforesaid decisions and the observation in the Mulla''s treatise on Hindu Law. We have therefore no hesitation in repelling in contention of Sri M. Ramaiah that the respondent should not have been awarded more than one-fifth of the income towards interim maintenance.

What are the circumstances in this case which should be borne in mind while fixing interim maintenance. The wife has no source of income of her own. The husband, on the other hand, has at least nine acres of land which admittedly is capable of growing commercial crops like tobacco, cotton, chillies etc. The husband has no other dependant. Even going by the estimate of the lower court that the income is at least Rs. 2,000/- per year, Rs. 70/- per month given to the respondent is slightly less than half of the total income, thus leaving more than half of the income to the husband. We do not think that the interim maintenance of Rs. 70/- per month awarded for the wife is unreasonable or excessive in the circumstances of the case.

Moreover, we feel that the income from the nine acres of land, which can grow commercial crops like tobacco, cotton, chillies etc., would certainly be more than Rs. 2,000/- per year. Even the lower court said that it can safely be estimated that the income would at least be Rs. 2,000/- per year. Obviously that is the absolute minimum. For these reasons, we uphold the order of the lower court awarding Rs. 200/- towards litigation expenses and interim maintenance at the rate of Rs. 70/- per month to the respondent. The Civil Miscellaneous Appeal is dismissed with costs.