Madhu Sudan vs Pushpa alias Bhawana

Inder Sen Israni, J.—This is a revision petition against the order dated 27-10-1986 passed by the learned District Judge, Sawai Madhopur, in Matrimonial Case No. 90/85, awarding interim maintenance allowance of Rs. 300/- per month and Rs. 1000/- as expenses of litigation u/s 24 of the Hindu Marriage Act (here in after called as the ''Act'').

An application was filed by the petitioner-husband against the non-petitioner wife for dissolution of marriage, which is pending in the court of District Judge, Sawai Madhopur.

An application u/s 24 of the Act was filed in which a demand for Rs. 1200/- for litigation expenses and Rs. 600/- as interim maintenance was made. The contention of the learned Counsel Shri B.L. Mandhana appearing for the petitioner is that the impugned order is not a speaking order. The learned District Judge has also not given any finding about the monthly income of the petitioner, out of which Rs. 300/- per month has been awarded as interim maintenance and Rs. 1000/- as litigation expenses to the non-petitioner. It is further pointed out that a vague mention regarding deduction of any other maintenance that may have been awarded to the petitioner, has been made in the impugned order, where as clear cut mention regarding deductible amount should have been made. It has also been contended that since an application u/s 125 Cr. P.C. was filed by the non-petitioner, in which Rs. 200/- were awarded to her, the District Judge should not have entertained the application u/s 24 of the Act for fixing up separately any interim maintenance under these proceedings.

4 Shri G.S. Sharma, learned Counsel appearing for the non-petitioner has on the other hand contended that the jurisdiction of civil courts is not barred merely because some maintenance has been awarded to the non-petitioner under the proceedings of Section 125 Cr. P.C. He further contends that there is no infirmity in the impugned order and calls for no interference. He has drawn my attention to the case of Surjit Kaur Vs. Tirath Singh, in which it has been held that even though maintenance may have been granted Section 488 Cr. P.C. (old) the jurisdiction of civil court to award separate maintenance u/s 24 of the Act is not barred In the case of Linga Gounder Vs. Raman, same view has been taken and it has been held that the jurisdiction of the criminal court is not barred for awarding any maintenance on account of any similar order that may have been passed by the civil court.

I have heard learned Counsel for both the parties and have also gone through the impugned order.

When an application u/s 24 of the Act is filed, the affidavits have to be filed by the parties so that the actual position regarding income of the opposite party and validity of the claim of maintenance of the applicant, who files application u/s 24 of the Act, becomes clear. The parties, if they so desire, are also given an opportunity to cross-examine on the affidavits filed by them. This is done precisely with a view to bring out the correct position of the party who has to pay interim maintenance as also the needs and validity of the claimant for award of maintenance. Therefore, it is necessary that the court should come to a definite conclusion about the income of a person against whom interim award for maintenance is to be made. In the case of Mukan Kunwar Vs. Ajeetchand, , it was held by this court that grant of maintenance pendente lite is discretionary, but the discretion is a judicial one exercised on sound legal principles and not on caprice or humour. In the case of Surjit Kaur (supra) it has been observed that if the amount received by the petitioning spouse is sufficient for her support the court is justified in refusing the maintenance pendente lite u/s 24 of the Act.

It may be pointed out that for reaching the amount of monthly maintenance to be awarded, the court should take into account the respondent''s gross income for judging his standard of living, but while calculating the maintenance pendente lite, it is the disposable income which decides the quantum. The disposable income is not to be calculated after allowing the house hold expenses of the husband, his provident fund or national saving certificates. While calculating the disposable income only those deductions should be allowed which are compulsory such as income tax. In the impugned order no such considerations have been made and even gross or disposable income has not been arrived at. When the order of maintenance pendente lite is not supported by reasons and does not discuss the pros and cons of rival versions; of the parties relating to the quantum of income of husband, the order is liable to be set-aside.

In view of the above discussions, the revision petition is allowed. The impugned order of the learned District Judge is set-aside. However, it is made clear that the trial court will be at liberty to arrive at disposable income of the petitioner keeping in view the observations made above and if it finds that the maintenance amount to be paid by the petitioner as it deems proper after giving deductions for the amount already received by the claimant u/s 125 Cr. P.C. proceedings. The trial court shall also be at liberty to fix any amount for litigation expenses which it deems proper keeping in view all the circumstances and the expenses that the claimant non-petitioner is likely to make to face the trial of the suit.