AI Structured Summary
Not yet generated for this judgment
Judgment
G.M. Mir., J.—This appeal u/s 28 of the Hindu Marriage Act, is directed against the order of the learned District Judge, Jammu, dated 15-
2-1977, passed in an application u/s 24 of the J. and K. Hindu Marriage Act (hereinafter referred to as 'the Act').
In proceedings between the parties initiated by the husband, Respondent, against his wife, the Appellant, herein, for divorce u/s 13 of the Act,
an application u/s 24 of the Act was submitted by the Appellant for grant of a lumpsum of Rs. 1,500/- in her favour for meeting the expenses in the
main proceedings u/s 13 of the Act. By Anr. application a request was made for the award of Rs. 100/- per month as maintenance allowance
pendente lite. Both parties led evidence and examined several witnesses in the trial court. The controversy centred round the fact as to what was
the income of the husband, the Respondent herein. According to the certificate of pay produced by the Respondent, his basic pay appears to be
Rs. 215/- per month. His witnesses have alleged that he has no agricultural land but that his father did own a few gumawoes of land. On the other
hand Anr. certificate has been produced by the Appellant herein which showed that the total emoluments vide Army instructions derived by the
Respondent amounted to Rs. 330/- per month which included Dearness allowance as well as Additional dearness allowance and his increment
pay. In addition to this, it was certified that the Respondent was entitled to free rations except when on leave or staying with his family and for this
purpose an amount of Rupees 3.90 was authorised in his favour per day. Besides, witnesses produced by the Appellant deposed that the income
of the Respondent per month was about Rs. 600/ -. It however, appears during the arguments the Respondent made an offer to pay Rs. 50/- per
month as maintenance allowance to the Appellant as well as agreed to pay Rs. 175/- in instalments, as expenses for the proceedings instituted by
him u/s 13 of the Act. His statement was recorded and the offer was put to the learned Counsel for the Appellant who also agreed to this
arrangement and 'by virtue of two separate statements he exhibited his readiness to accept Rs. 50/- as maintenance allowance per month from the
date of the order and also agreed to accept Rs. 175/- as expenses for the proceedings. In view of this agreement the learned District Judge passed
the impugned order in accordance with the compromise arrived at between the parties and directed that the Respondent shall pay Rs. 50/- per
month as maintenance allowance to the Appellant from the date of the order upto the end of the proceedings u/s 13 of the Act. He further ordered
that an amount of Rs. 175/- will be paid by the Respondent in three instalments of Rs. 25/ -, Rs. 50/ - and Rs. 50/- in Feb., March, and April
1977 respectively.
The learned Counsel for the Appellant has contended that the learned trial Judge had no authority to order the payment of the maintenance
allowance from the date of the order. According to him in view of the word ""proceedings"" used in Section 24 of the Act, the only order that could
have been passed by the trial court in this behalf was that the maintenance allowance be paid from the date of the service of the notice on the
Appellant in the proceedings u/s 13 of the Act instituted 'by the Respondent. He has further contended that the Respondent was drawing good
salary and had no liabilities whatsoever and therefore, could well afford to pay an amount of Rs. 100/ - per month as maintenance allowance to the
Appellant. He has assailed the order of the trial court on these two ground only.
I am in agreement with the learned Counsel for the Appellant that in vi(sic) of the word 'proceedings' appearing (sic) Section 24 of the Act, the
date from which the maintenance could ordinarily (sic) granted should in this case be the d(sic) of the service of the notice in Processings u/s 13 of
the Act. There is (sic) catena of judgments of various High Courts on this point and in a (sic) number of cases, the various High Court have been of
the view that the maintenance ordinarily should be allowance from the date the notice of the processings was served upon the other party. While
agreeing with this view, I however feel that this was not a binding rule which had to be followed in all cases and under all circumstances as there
was nothing in the Act which could be said to be specifically recommending the grant of maintenance from the date of the notice; nor there was any
specific prohibition in the Act for ordering the grant of maintenance from the date of the order or from any other date. However, in the absence of
any specific circumstances appearing in the case, it would be proper and desirable for the courts to order the award of maintenance allowance
from the date of the notice of the proceedings instituted under the Act. The date for the commencement of the allowance could not be fixed
arbitrarily. In the instant case however, the order of the trial Judge fixing such date was far from being arbitrary. He has given effect to the
agreement arrived at between the parties. It was for the Appellant at that time either to accept or reject the offer made by the Respondent. On
behalf of the Appellant and her father the learned Counsel accepted and gave this consent to the proposal of the compromise made by the
Respondent. No reason has been shown as to why this agreement cannot be given effect to. No fraud or undue influence or duress whatsoever
appears to have been exercised at the relevant time. Moreover the amount of Rs. 50/- as maintenance allowance per month would not appear to
be inadequate keeping in view the small pay which the Respondent was drawing and also in view of the fact that besides himself he had to maintain
his old parents, also. In a number of judgments High courts have held that in the absence of any specific provision in this regard in (sic)e Act or the
Rules framed thereunder, ordinarily one-fifth of the net income of the Respondent should be allowed as maintenance in favour of a party under (sic)
24 of the Act. This view is based on (sic) provision of law laid down in the Indian Divorce Act. But there being no (sic)ch provision in the Act, this
rule may (sic)t be held to be universally applicable (sic) all cases, and no violation of such a people can be termed as arbitrary, if on (sic)e facts of
a particular case it appears (sic)at to follow the rule strictly would not (sic)e in accordance with justice, equity and (sic)od conscience. Even if it be
conceded (sic)at the amount of maintenance should (sic)t have been less than one-fifth of the net income of the Respondent, it cannot be said that
in the instant case the award of Rs. 50/- per month as such maintenance was inadequate or was violative of the rule of natural justice or was
against propriety. In view of the fact that the net income of the Respondent was about Rs. 330/- a month the one fifth of this amount would not
exceed Rs. 60/- or so per month. If the learned trial Judge has departed from this commonly accepted rule, it was not that he had no reasons for
making such departure. The parties, especially the Appellant had agreed before him to this arrangement and she now has no justification in
challenging the order of the District Judge as being arbitrary. She has failed to show the existence of any special circumstance for her to go back on
the arrangement agreed to by her in the trial court.
The Respondent had to pay to the Appellant or deposit in her name in the court an amount of Rs. 175/- in instalments as expenses for the
proceedings which according to him he has done and if there was any amount yet to be paid, he was ready to deposit that sum also in the court
below. It appears that instead of directing the first instalment to be of Rs. 75/ -, the trial court by a mistake has shown it as Rs. 25/- only. This is an
error and as it has been agreed that the amount of Rs. 175/- was to be paid in instalments by the Respondent, the said amount must be paid.
In view of the above, I find no force in this appeal and the same is dismissed. I make no order as to costs.