Urmila Devi vs Hari Parkash Bansal

This order will also dispose of Civil Revision Petition No. 54 of 1987, as both these revision petitions have arisen out of the same order passed by the Additional District Judge, Karnal, on the applications filed by both the parties u/s 24 of the Hindu Marriage Act (hereinafter called the Act).

Hari Parkash Bansal, respondent, filed the petition for dissolution of marriage by a decree of divorce under S. 13 of the Act, against his wife Urmila Devi, the petitioner, on the ground of cruelty. During the pendency of the said petition, both the parties filed applications under S. 24 of the Act, for the grant of maintenance pendente lite and expenses of litigation on the allegations that they had no independent and sufficient means to maintain each other. While the husband alleged that his wife was earning more than Rs. 500/- per month by doing tailoring work, the wife countered to say that her husband had an income of Rs. 3,000/- per mensem from the kiryana shop apart from the interest income of Rs. 1,000/- . It may be stated that the marriage between the parties had taken place on December 8, 1984, and the petition for divorce was filed in February, 1986. The wife moved the application under S. 24 of the Act on April 24, 1986 whereas the husband filed the application as a counter blast on June 4, 1986. The learned Additional District Judge came to the conclusion that neither the husband nor the wife was proved to have any independent and sufficient income to support himself or herself or the other spouse. In view of the said finding, it was held that none of them was entitled to the grant of the maintenance pendent lite or the costs of litigation from the other. The wife filed Civil Revision Petition No. 3165 of 1986 whereas the husband filed Civil Revision Petition No. 54 of 1987, against the impugned order.

The learned counsel for the petitioner wife submitted that it had been wrongly held by the Court below that the husband had no sufficient income of his own whereas from the evidence produced by the wife, it had been proved that he was running kiryana shop and was earning Rs. 3,000/- per month therefrom. However, since on the appreciation of the entire evidence, it has been found by the learned Additional District Judge that none of the parties was proved to have independent and sufficient income as to support each other, that being a finding of fact could not be interfered with in the exercise of the revisional jurisdiction.

Faced with this situation, the learned counsel for the petitioner wife contended that even if it be assumed that the husband had no income of his own, even then, the being an able-bodied person and being capable of working even as an ordinary laborer or otherwise, was liable to pay the. maintenance to her. In support of the contention, the learned counsel relied upon Gurmail Singh Vs. Bhuchari, ; Ranjit Kaur v. Jagdev Singh judgments taking a contrary view were cited by the learned counsel for the respondent husband in Dev Raj v. Harjit Kaur. The view taken in Shrimati Lila Devi''s case (1978) 80 PLR 744(supra), by the learned single, judge was considered by the Division Bench of this Court in Gurmail Singh''s case AIR 1980 P & H 1201(supra), and it was observed that Shrimati Lila Devi s case was decided on the facts of that case and that no proposition of law as such was laid down by the learned single judge. The question referred by the learned single judge to a Larger bench and decided by the Division Bench, in Gurmail Singh''s case (supra) was:

"Whether an able-bodied person capable of working even as an ordinary laborer or one who works on his father s or any other relation''s farm or any other kind of establishment can be considered as capable of maintaining his wife and thus being made to pay interim maintenance to her when she happens to be living separately from him for the reasons mentioned in a given matrimonial dispute between them."

While dealing with the said proposition, it was observed therein by the Division Bench :

"It cannot be laid down as a rule of law that if a person is working with his father, he has no income. In that context, it may be a relevant consideration that a person is an able-bodied one and is capable of working even as an ordinary laborer or otherwise. It cannot be argued on behalf of the husband petitioner in this case that simply because he is working with his father; he has no independent income and it is itself sufficient to deprive his wife to claim maintenance under S, 24."

Similar view was taken in Ranjit Kaur''s case wherein the Learned single judge held.-

"As regards the maintenance pendente lite, I am of the view that the wife is entitled at least to Rs. 100 per month and Rs. 30Q for litigation expenses. Even if the income of the husband was considered. equal to the minimum wages which an able-bodied person can earn Rs. 100 per month as maintenance pendent lite would be very nominal.

Following the Division Bench judgment of this Court in Gurmail Singh''s case (supra), again it was held in Paramjit Kaur''s case "The respondent (the husband) is an able-bodied person and is working as a tailor with his father. He is a skilled person and it can safely be assumed that he must be earning found about Rs. 1,000 a month."

Thus, if a person is an able-bodied person capable of working, then, he is supposed to maintain his wife and to pay the maintenance as required under S. 24. It is for the purposes of fixing :the amount under S. 24 that the applicant''s own income and that of the respondent is. to be taken into consideration. In the absence of any income as such of either party, the husband being an able-bodied person and capable of working can be considered as capable of maintaining his wife and, thus, liable to pay the interim maintenance under S. 24 of the Act.

Held, in this view of the matter taking the income of the husband equal to the minimum wages which an able-bodied person can earn, a sum of Rs. 100/- per month will be the maintenance pendent lite and Rs. 100/- as the litigation expenses to which the wife will be entitled from the husband under S. 24 of the Act, from the date of her application.

Consequently, Civil Revision Petition No. 3163 of 1986 is allowed whereas Civil Revision Petition No. 54 of 1987 is dismissed with no order as to costs.

Order accordingly.