Mrs. Sushma Bawa vs Ravinder Nath

V.K. Jhanji, J.—This order of mine will dispose of Civil Revision No. 3305 and 5034 of 1991.

Civil Revision No. 3305 of 1991 has been directed against the order passed by the Trial Court on her application filed u/s 24 of the Hindu Marriage Act (for short the ''Act'') The Trial Court allowed Rs. 1,500/-as maintenance pendente lite and Rs. 3,000/- as litigation expenses.

Marriage between the parties took place on 24.4.1971. As per the case of the wife, the husband went to England some time in the year 1971-72 and returned in the year 1978 when he started his own Clinic Dispute between the parties arose in the year 1984 when the husband filed a petition u/s 9 of the Act for grant of decree for restitution of conjugal rights. During the pendency of petition u/s 9 of the Act, wife was granted maintenence at the rate of Rs. 300/- per month pendente lite on her application u/s 24 of the Act, However, a compromise took place between the parties as a result of which the husband withdrew his petition u/s 9 of the Act. Present petition u/s 13 of the Act has been filed on 8.5. 1991 by the husband against wife for dissolution of marriage on the ground of cruelty and descrtion.

During the pendency of the divorce petition, wife in petition u/s 24 of the Act claimed that she has no independent source of income and the husband is earning more than Rs. l,00,000/-per month and therefore, she and her son, who, at the time of making application u/s 24 of the Act, was 181/2 years old, are entitled to a sum of Rs. 20,000/- per month as maintenance pendente lite and Rs. 10,000/- as litigation expenses. This application was considered by the trial Court and on the basis of the affidavit filed by the parties, the Trial Court awarded a sum of Rs. 1,500/- as maintenance pendente lite and Rs. 3,000/- as litigation expenses. This order is being challenged by the wife in this Civil Revision.

Civil Revision No. 5034 of 1991 has been preferred by the husband for reduction of amount so awarded by the Trial Court.

After hearing the learned Counsel for the parties at length, I am of the view that this matter requires redetermination by the Trial Court. The Trial Court, while deciding the application, has taken into consideration that wife is having income of about Rs. 4,000/- per month from intdrest. This finding has been given without there being any definite material on the record. In case the affidavits were not sufficient for the decision of the application u/s 24 of the Act, then Trial Court ought to have given an opportunity to the parties to lead evidence so as to determine the income of The wife compared to that of husband. Learned Counsel for the parties have taken me through the affidavits as well as some material which was brought on the record and I find from the same that it is difficult to determine the income of the wife as well as husband and, therefore, I am of the view that the trial Court should redetermine the entire evidence on the application for grant of maintenance pendente lite. Normally, application u/s 24 of the Act should be decided only on the bass of the affidavits but in the peculiar facts and circumstances of this case where both the parties have not placed the material on record for the just determination of the income of the wife and the husband, the matter requires fresh determination.

Consequently, the order of the Trial Court is set aside. The Trial Court is directed to redetermine the matter after giving opportunity of the parties to lead evidence. Learned Counsel for the petitioner undertakes that the petitioner shall conclude her evidence on two dates of hearing. Learned Counsel for the respondent also undertakes that the respondent shall also conclude his evidence on equal number of dates. On the conclusion of the evidence, the Trial Court shall decide the application u/s 24 of the Act on the basis of the evidence brought on the record by the parties.

Parties through their Counsel are directed to appear before the Trial Court on the date already fixed in the case.