Smt. Sarvo Devi vs Lashkari

V.D. Misra, C.J.—Shri Lashkari (hereinafter referred to as the husband) filed a petition u/s 13 of the Hindu Marriage Act (referred to as the Act) for a decree of divorce against his wife Shrimati Sarvo Devi (referred to as the wife). It was alleged that the wife was leading an adulterous life. The trial court accepted the averments made by the husband and passed a decree of divorce. The wife has filed an appeal. She has also filed the present application u/s 24 of the Act claiming maintenance pendente lite and expenses of proceeding. It is averred that she has no independent income sufficient to support herself and for the necessary expenses of proceeding. It is stated that she was granted Rs. 170/- per month u/s 125 of the Code of Criminal Procedure by the Judicial Magistrate, Sarkaghat, for her and her children''s maintenance. The husband is stated to be working as Meter Reader/Clerk in the Electrical Sub-Division, Sarkaghat, drawing a salary of about Rs. 700/- per month. A sum of Rs. 1,000/- is claimed for expenses of proceeding and Rs. 300/-as maintenance pendente lite.

The husband has filed a reply to this application. He has not cared to say anything about his income. He has only stated that the amount of maintenance granted by the Judicial Magistrate is sufficient for the maintenance as well as expenses of proceeding. It is also contended that the present application is not maintainable. Another application. C.M.P. No. 17 of 1983, has been made by the husband u/s 151 of the Code of Civil Procedure. It is in this application that the husband has raied a contention that the wife having been proved to be unchaste and leading an adulterous life has forfeited her claim for maintenance pendente lite. It is averred that the husband has to feed and maintain his aged parents out of Rs. 694/- which he receive as his monthly pay. In reply to this application the wife has averred that the father of the husband owns about 25 bighas of land, half of which is irrigated and paddy producing. It is also averred that the younger brother of the husband is also employed in the State Electricity Board and is living with the parents.

Mr. Manohar Lal Sharma, learned Counsel for the husband, vehemently contends that the wife should not be granted any amount u/s 24 of the Act since she has been held to be unchaste. At this stage Section 24 of the Act may be read with advantage:

"24. Where in any proceeding under this Act it appears to the court that either the wife or the husband, as the case may be, has no independent income sufficient for her or his support and the necessary expenses of the proceeding, it may, on the application of the wife or the husband, order the Respondent to pay to the Petitioner the expenses of the proceeding, and 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."

It is obvious that the question whether the wife is chaste or not has no relevance to the question of the grant of maintenance. This provision seems to have been made to ensure that a spouse who has no independent income sufficient for the maintenance and for expenses of proceeding has a right to claim the same from the opposing spouse if the latter has sufficient income. The purpose is to ensure that not only the applicant is able to maintain himself/herself but also to meet the expenses of the proceeding. The expenses of the proceeding will, of course, include engaging a reasonably competent lawyer. For the purpose of proceeding in an appellate court the expenses will usually be the counsel''s fee, the court-fee required to be paid on various applications, and other sundry expenses.

I find that it is Sub-section (1) of Section 25 which provides for permanent alimony and maintenance after the marriage has been dissolved. Under this section unchastity of a wife may result in refusal of grant of maintenance to her. Of course, this section does not deal with expenses of proceeding since these have to be incurred before an order u/s 25 is made.

It is true that the trial court has held the wife unchaste but this decision is under appeal. The question of unchastity has to be decided by the appellate court. By denying expenses of the proceeding, the court will be denying her the right to have competent legal assistance without which it is not possible for her to prosecute the appeal. In these circumstances the trial court decision will become final for her. It is too late in the day to say that an appeal is not a continuation of the proceeding and the moment an appeal is preferred according to law, the finality of the judgment appealed against is not knocked out.

Mr. Manohar Lal Sharma cites a judgment of the Punjab and Haryana High Court in support of his contention that the unchastity of the wife would deprive her of the maintenance and expenses of proceeding in terms of Section 24 of the Act. A single Judge of that court in Smt. Jiwan Lata v. Shri Krishan Kumar 1979 CLJ 263, did decide in that case that since the trial court had found the wife leading an unchaste life, she was not entitled to claim any maintenance. This short judgment running into about half a page, does not give any reason whatsoever for coming to this conclusion. However, I find that the same learned Judge reviewed this decision after about a fortnight. This decision is reported in the same Journal at page 300. The learned Judge corrected himself by saying:

"Learned Counsel for the applicant has rightly contended that some of the ingredients as mentioned in Section 25 of the Act are not relevant for the purposes of Section 24 of the Act under which the present application was made. This contention appears to me with merit. Therefore, I recall my order, dated 7th May, 1979, and hold that the application for maintenance by the Appellant during the pendency of the litigation shall be disposed of on merits."

Mr. Sharma then cites a judgment of the Rajasthan High Court in Umesh Chand Sharma v. Rameshwari Devi AIR 1982 Raj 83. I find that this was a decision given u/s 25 of the Act and has, therefore, no relevance to the present question befote me.

Another judgment relied upon by Mr. Sharma is Mukan Kunwar v. Ajeetchand AIR 1958 Raj 322. A perusal of this judgment shows that the wife''s application u/s 24 of the Act was dismissed by the trial court on the ground, inter alia, that she was being maintained by her parents. The wife approached the High Court in revision. The learned Judge observed:

"The leading principle to remember in this connection is that if the applicant has no independent means he or she is entitled to maintenance and expenses under this section, unless good cause is shown for depriving him or her of it. What can be a good cause for this purpose has also been the subject of a series of decisions in matrimonial cases and Courts have held that the matters that may properly be considered are (1) whether the applicant is being supported by an adulterer, and (2) whether the Respondent has not sufficient means. (See Manchanda''s Commentary on Section 36 of the Indian Divorce Act)."

It is these observations on which a capital is sought to be made by Mr. Sharma. I am afraid the observation that the court may consider whether the applicant is being supported by an adulterer is obiter dicta. This question was not before the court. Moreover, the learned Judge was relying on the commentary on Section 36 of the Indian Divorce Act. I have gone through this section and find that it is entirely different from Section 24 of the Act. Section 36 enables only the wife to claim alimony pending the suit. Section 37 of that Act provides for permanent alimony and requires the court to take into consideration, among other things, ''the conduct of the parties''.

My attention has been drawn to a judgment of this Court in Brij Lal v. Smt. Maya Devi ILR 1976 H.P. 762, where in it was ruled that the allegations of adultery against a wife do not prevent the latter to ask for maintenance pendente lite and expenses of proceeding u/s 24 of the Act. Of course, in that case the only questions raised was whether Section 23 of the Act was a bar in those circumstances to claim maintenance pendente lite u/s 24. But then the observations will apply to the present case inasmuch as adultery and unchastity of the wife is claimed by Mr. Sharma to be complete answer to the wife''s prayer for maintenance.

I find that the Bombay High Court in Gangu Pundlik Waghmare Vs. Pundlik Maroti Waghmare and Another, took a view similar to the one which I am taking. It was held that while considering an application u/s 24 of the Act it was not appropriate to decide if a wife was not entitled to the payment because of misconduct or commission of marital offence. I have, therefore, no hesitation in concluding that the wife is entitled to claim maintenance pendente lite and expenses of proceeding u/s 24 of the Act during the course of appeal.

The next question is of the quantum of maintenance and of the expenses of proceeding. As already stated, the husband''s income is about Rs. 700/- per month. The husband has stated that his take-home pay is Rs. 694/- per month. But then he has not given the break-up of his pay. I will, therefore, proceed on the basis that he takes home Rs. 700/- per month.

Mr. Manohar Lal Sharma submits that the parties have three children. However, nothing is stated in the reply to the application. This statement is made only during the course of arguments. Since the fact is not denied by the wife, so I will assume that there are three children. The Judicial Magistrate, as already stated, has granted Rs. 170/- per month for maintenance of the wife and the three children. The children are stated to be of the ages of 11, 10 and 7 years. It is, therefore, safe to assume that the wife has been granted Rs. 100/- per month for her maintenance. This will, of course, be taken into consideration while assessing the final amount of maintenance of the wife.

The next question which arises for determination is as to what amount the wife is entitled to as maintenance. It is submitted by Mr. Sharma that it should be 1/5th of the total income of the husband. However, Miss Kamlesh Sharma, learned Counsel for the wife, contends that it can be upto 1/3rd of the total income. Both of them cite various decisions which I will now consider.

A Division Bench of the Punjab and Haryana High Court in Usha v. Sudhir Kumar 1974 P.L.R. 195, came to the conclusion that the gross income of the husband is to be taken into consideration for judging the standard of living of the applicant, and for calculating the amount of maintenance the gross income has to be left aside and disposable income has to be taken into consideration. This disposable income is to be arrived at by deducting from the gross income only such items of expenses over which the Respondent has no control of any kind such as direct taxes like income tax etc. However, it was observed that no deduction is to be made from the gross income in respect of running the household of the Respondent, paying house rent or electricity or water charges, paying the salaries of his domestic servants, payment by him of life insurance premia or for voluntary savings such as provident fund or purchase of National Savings Certificates etc. It was further observed that while determining the amount of maintenance for the wife the amount necessary to maintain a child cannot be taken into consideration though the maintenance of an infant child by the wife may be taken into consideration, ft was also observed that unlike the Indian Divorce Act where a ceiling of 1/5th has been fixed as maintenance for the wife, no ceiling has been fixed by Section 24 of the Act. One third of the aggregate income of the husband and wife less the wife''s income was held to be a good guide for determining the quantum of maintenance. This decision was followed in various cases by the Punjab and Haryana High Court.

A Division Bench of the Bombay High Court in Dinesh Gijubhai Mehta Vs. Usha Dinesh Mehta, took a similar view. It was observed that the ceiling of 1/4th of the husband''s income laid in Section 36 of the Indian Divorce Act is not any rational guide. In that case the net income of the husband was found to be Rs. 720/- per month. He was also held to be entitled to Rs. 370/- per month from the joint family business. Thus out of a total of Rs. 1090/- per month the wife''s maintenance at Rs. 340/- per month was held to be reasonable. This will roughly come to 1/3rd of the husband''s income.

Section 24 of the Act requires the court to fix an amount for maintenance and expenses of proceeding which "may seem to the court to be reasonable." What is "reasonable" will depend on the circumstances of each case depending on the status of the parties and the disposable income available to the spouses. However, I am inclined to think that 1/3rd of the disposable income is a reasonably good guide, though no hard and fast rule can be laid down.

In the instant case, as already observed, the husband''s income is Rs. 700/- per month and Rs. 200/- per month will be a reasonable amount for the wife''s maintenance pendente lite. Deducting the amount which she is already receiving on account of the order of the Judicial Magistrate made u/s 125 of the Code of Criminal Procedure, I would award a sum of Rs. 100/- per month for her maintenance pendente lite. As regards the expenses of proceeding, I find that she has spent Rs. 48.70 in court-fee for the appeal and other miscellaneous applications. She has also spent on typing and affidavits. I would, therefore, grant her Rs. 550/- as expenses of proceeding. The wife would be entitled to the amount of maintenance pendente lite awarded to her from 1st September, 1982.