Rakesh Chandok vs Smt. Vinod

I.K. Kotwal, J.—This appeal arises out of an order passed by District Judge, Jammu, u/s 24 of the Jammu and Kashmir Hindu Marriage

Act, 1955, hereinafter to be referred to as the 1955 Act, which corresponds to Section 30 of the Jammu and Kashmir Hindu Marriage Act, 1980,

hereinafter to be referred to as the 1980 Act, granting maintenance pendente lite at the rate of Rs. 500/- per mensem and a further sum of Rs.

2,000/- on account of litigation expenses in favour of the respondent.

The respondent brought an application u/s 9 of the 1955 Act against the appellant in the Court of District Judge, Jammu. On 24-8-1979, she

made an application u/s 24 of the said Act that she having no independent income sufficient for her support and the necessary expenses of

litigation, the appellant may be ordered to pay to her a sum of Rupees 500/- per mensem as maintenance and a further sum of Rs. 2,000/- by way

of litigation expenses. This application was resisted by the appellant on the ground that his total income was Rs. 500/- per month, which he was

drawing by way of salary as an employee of Vir and Co., a business concern at Srinagar exclusively owned by his mother. The parties led

evidence in support of their respective cases and the learned District Judge on consideration of the same eventually came to the conclusion that the

appellant was earning something in the neighbourhood of Rs. 4,000/- per month and was also maintaining a car and that the respondent required at

least a sum of Rs. 2,000/- to meet the litigation expenses and Rupees 500/- per mensem as maintenance. He, accordingly passed the impugned

order.

A preliminary objection has been taken on behalf of the respondent that in view of the specific provisions of Section 34 of the 1980 Act, no

appeal lay against the impugned order which was passed after the aforesaid Act came into force. There is considerable force in this objection.

Prior to the coming into force of the 1980 Act provision for appeals was made in Section 28 of the 1955 Act. This section was much wider in

scope than Section 34 of the 1980 Act, in that, it provided for appeals against every order passed by the court in exercise of its original civil

jurisdiction; the only exception being appeal on the subject of costs only. Right of appeal against orders has been restricted under Sub-section (2)

of Section 34 to orders passed under Ss. 31 and 32 of the 1980 Act only; appeal on the subject of costs of course being barred under this section

also. Section 31 relates to permanent alimony and maintenance which the court may grant at the time of passing any decree or at any time even

subsequent thereto and Section 32 pertains to orders in regard to custody of children. The impugned under, as already noticed, has been passed

u/s 30 of the 1980 Act which does not find mention in Sub-section (2) of Section 34. No appeal, therefore, lies against an order passed u/s 30, To

this extent, therefore, the preliminary objection prevails.

Even so, the next question to be determined is whether the appellant is really out of court for all intents and purposes. The contention of the

learned counsel for the appellant is that even if no appeal is competent against the impugned order, the court has ample power to examine its

correctness in exercise of its revisional jurisdiction u/s 115, Civil P. C. He has, therefore, prayed that this appeal may be treated as a revision and

disposed of as such. The argument in reply, however, is that the 1980 Act being a complete code in itself, there is no room for invoking the

revisional jurisdiction of this Court when the aforesaid Act itself does not provide that an order passed by a court under the Act would be revisable

u/s 115.

The High Court, u/s 115 can call for the record of any case which has been decided by a court subordinate to it, and in which no appeal lies to

it. This power has of course to be exercised under certain circumstances specified in Clauses (a) to (d) of Section 115 but the two conditions that

must be satisfied for invoking its revisional jurisdiction are that the order sought to be revised should have been passed by a court subordinate to

the High Court and that no appeal should lie to it from the said order. In the instant case both these conditions are satisfied, in that, the order

sought to be revised has been passed by District Judge, a court subordinate to the High Court, and is also not an appealable order. This court is,

therefore, competent to revise it provided it falls under any one or more of the categories mentioned in Clauses (a) to (d). Mr. Sehgal, when he

raises the contention that the order is not revisable because the 1980 Act is a complete code in itself which does not provide for the remedy of

revision, clearly overlooks Section 23 of the 1980 Act which says that subject to the other provisions contained in the said Act and to such rules as

the High Court may make in this behalf, all proceedings under the Act shall be regulated, as far as may be, by the Code of Civil Procedure. There

is no provision in the 1980 Act or the rules made thereunder, that bars the application of Section 115 to orders passed under the said Act. I am,

therefore, clearly of the opinion that even if no appeal is competent against the impugned order, still it is revisable u/s 115. The appeal is,

accordingly, treated as a revision petition.

So far as the amount of Rs. 2,000/-for litigation expenses is concerned, the finding of the learned District Judge cannot be disturbed for the

simple reason that it is a finding of fact based on evidence and appreciation of evidence is no ground for interference in revisional jurisdiction u/s

The other finding of the learned District Judge is, however, vitiated by material irregularity of procedure. No court is competent to grant to the

party more than what it itself claims. In her application the respondent has herself claimed a sum of Rs. 500/-only by way of monthly maintenance.

The learned District Judge could not have, therefore, granted a sum more than Rs. 500/- as monthly maintenance in her favour, and that too, after

taking into consideration the respondent's own independent income, as the language of Section 30 clearly warranted. He has not taken into

consideration at all the evidence produced by the petitioner that the respondent is drawing Rs. 225/- per month as salary from Government

College for Women, Jammu, where she is employed, even though on temporary basis, as a Reading room Assistant. It is trite law that even a

finding of fact recorded after overlooking material evidence on the point stands vitiated by an error or law. Overlooking of evidence is a material

irregularity of procedure and, therefore, an error of law which, there can be no manner of doubt does attract Clause (c) of Section 115. The

learned District Judge has no doubt correctly arrived at the conclusion that an amount of Rs. 500/- is required by the respondent as monthly

maintenance, but he has committed an error in not deducting from it the amount of Rs. 225/- which the respondent is receiving by way of salary.

He should have awarded in her favour a sum not more than Rs. 275/- per month by way of maintenance.

I am not prepared to accept the hard and fast rule propounded by the learned counsel for the petitioner that in no case could the respondent be

granted more than one-fifth of her husband's income by way of maintenance u/s 30. In support of his aforesaid contention he has relied upon a

single Bench decision of this court in Smt. Sudarshan Kumari v. Chaggar Singh 1978 KashLJ 1 : AIR 1978 J&K 25 The learned single Judge in

the aforesaid case has in the beginning no doubt made observations which do lend some support to Mr. Gupta's contention, but at later stage of

the judgment he has himself expressed his opinion that granting maintenance at the rate of one-fifth of the husband's income is not a rule of universal

application. What Section 30 requires is that the amount awarded by way of (maintenance?) compensation should be reasonable. The expression

reasonable"" is a relative term. What may be reasonable in one case may not be necessarily reasonable in another case. Reasonableness of the

quantum of (maintenance?) compensation has not to be determined by merely having regard to the petitioner's own income and the income of the

respondent but also by having regard, as far as may be, to the standard of life maintained by the family to which the parties belong. The rule that in

no case maintenance should be granted at a rate of more than one-fifth of the husband's income is not only unreasonable, but also irrational which

may some time defeat the very object of avoiding vagrancy; the raison detre of Section 30.

The petitioner is the only son of his mother who have a house at Delhi, a house at Jammu, and a business concern at Srinagar. Admittedly, a car

is being maintained by the petitioner. The petitioner says that the car belongs to the business concern. It is again his own case that his mother is the

sole proprietor of the business concern and he is the sole heir of his mother. Keeping in view these circumstances, Rs. 500/- per month should be

the minimum requirement of the respondent to maintain herself. It is urged on her behalf that since she has to maintain her ailing daughter also who

is suffering from polio, a sum of Rs. 500/- per mensem would be meagre. Section 30 provides for maintenance of the spouse only and not for

maintenance of children dependent upon him or her. The respondent, if so advised, can take recourse to other legal proceedings for recovery of

maintenance for her child. This order granting maintenance in her favour will not come in her way.

For all these reasons the impugned order is modified to the extent that the petitioner will pay a sum of Rs. 275/- per month to the respondent by

way of maintenance during the pendency of the proceedings. Since the parties have not disputed the correctness of the view taken by the learned

District Judge that maintenance shall be payable from the date the issues are framed in the case, the order of maintenance shall take effect from 2-

12-1980 when the issues were framed in the respondent's petition u/s 9 of the 1955 Act. The revision petition is accepted to this extent only.

Keeping in view the partial success and failure of the parties, they are left to bear their own costs in this court.