Veena Kumari vs Srikant @ Sanjay

S.N. Hussain, J.—Heard learned counsel for the parties.

The petitioner is defendant in Divorce Case No. 27/96 which has been filed by the opposite party for dissolution of their marriage u/s 13 of the Hindu Marriage Act, 1955 (hereinafter to be referred to as ''the Act'' for the sake.of brevity).

The petitioner is aggrieved by order dated 1.6.2002 passed in the aforesaid case by which the learned First Additional District Judge, Begusarai, had rejected her petition u/s 24 of the Act for maintenance pendente lite @ Rs. 4,000/- per month from the date of filing of the case.

The learned counsel for the petitioner contended that the impugned order was passed on the assumption that since the petitioner is already getting Rs. 300/- per month, there was no occasion for review of the said order. He contended that the said amount of Rs. 300/- per month was not being given as maintenance but was being given as cost of litigation. The learned counsel for the petitioner further contended that earlier she had filed a petition u/s 24 of the Act on 20.6.1997 (Annexure-6) only for payment of Rs. 2000/- per month as cost of litigation. The said petition was allowed by order dated 5.1.1998 (Annexure- 1) by which she was allowed only Rs. 450/- per month as cost of litigation, however, the said amount was later reduced to Rs. 300/- per month vide order dated 23.4.2001 (Annexure-2) when the case was transferred from Munger to Begusarai where the petitioner lives. Hence, according to the petitioner, the said order was not with respect to the maintenance of the wife at all due to which the petitioner was facing great difficulty in maintaining herself as she has no source of livelihood of her own. In the aforesaid circumstances, she field another petition on 21.6.2001 (Annexure-4) for fixing the maintenance pendente lite @ Rs. 4,000/- (Four thousand) per month payable by the husband to the wife from the date of filing of the suit/case. But the said petition was not considered on merits and was rejected on frivolous and absolutely wrong assumptions. Hence, the said, order is illegal, arbitrary and perverse.

On the other hand, the learned counsel for the plaintiff- O.P. vehemently opposed the contention of the learned counsel for the petitioner and on the basis of the counter-affidavit filed by him, he contended that the cost of litigation is paid in lump-sum and not paid per month and hence the amount allowed by the learned Court below earlier was not cost of litigation, but was maintenance pendente lite and hence the learned Court below was quite justified in passing the order as there no was occasion to modify/review of the earlier order. The learned counsel for the Opposite party also relied upon decision of this Court in the case of Jitendra Kumar v. The State of Bihar, reported in 2004 (1) BBCJ 25, in which it was held that the cost of litigation given in lump-sum should be treated as ad interim relief. He further relied upon another decision of this Court in the case of Sri Anil Kumar v. Smt. Shweta @ Kinni, reported in 2002 (2) BLJR 1086, in which litigation amount was given in one lump1 sum. Hence, according to him, the impugned order is legal, valid and proper.

After hearing the submissions of the learned counsel for the parties and after perusing the materials on record, it is quite apparent that the amount of Rs. 450/- per month which was later reduced to Rs. 300/- per month was not for maintenance pendente lite, rather the petition (Annexure-6) as well as the orders dated 5.1.1998 and 23.4.2001 (Annexures-1 and 2) clearly show that it was for cost of litigation only. So far the provision of Section 24 of the Act is concerned, it does not say that the cost of litigation should necessarily be paid in lump- sum. Even the aforesaid decisions cited by the learned counsel for the opposite party does not State that the cost of litigation cannot be paid in monthly instalments. Furthermore, since the cost of litigation is heavy burden on a wife who is facing dissolution of marriage and has no source of income of her own and also since the said cost occurs every month at least once, I feel that the learned Court below by the aforesaid earlier orders was quite justified in passing the said earlier orders for cost of litigation to be paid every month. Moreover, the said orders were never challenged by the plaintiff-opposite party and hence he has no face to come up with such frivolous and blatantly baseless claim which goes to show that the husband wants to harass his wife and also wants to force her to succumb to his nefarious designs.

In the instant case it is an admitted fact'' that the husband-opposite party is in a good job. However, the petitioner (wife) claims that here husband (O.P.) is getting a salary of Rs. 12,000/- per month, whereas on behalf of the O.P. (husband) it is argued that he was earlier in Navy but has left that job and is now earning a very meagre amount, but he has refrained from making any such statement in his counter-affidavit. In the aforesaid circumstances, this Court on two occasions, ie. on 23.6.2004 and 15.7.2004 specifically directed the O.P. (husband) to produce his last pay slip along with a supplementary affidavit to show that he was not in his earlier service and that he was earning much less. But more than two months have lapsed but no such pay slip has been produced and the learned counsel for the opposite party submits that his client was informed but till date the required pay slip has riot been sent. These circumstances clearly show that the claim of opposite party is baseless and hence he is avoiding compliance of even this Court''s orders and is trying to take undue advantage of the helplessness of the petitioner (wife) who is unable to bring the proof of. the salary of her husband (O.P.) who is working outside Bihar. Hence, there contention of the petitioner (wife) that the O.P. (husband) earns about Rs. 12,000/- per month appears to be true.

Furthermore, the claim of the petitioner (wife) that she has no source of income to maintain herself is not denied by the O.P. (husband) in his counter-affidavit filed in this case and the earlier orders (Annexures-1 and 2) of the trial Court also show that she had no income at all and moreover the said orders were never challenged by the husband (O.P.) and thus it appears to be an admitted fact.

In the decision of the Division Bench of this Court, cited by the learned counsel for the O.P. himself in the case of Jitendra Kumar, (supra), it has been specifically held that in today''s time an award of maintenance of Rs. 2,000/- (two thousand) per month is not unreasonable and hence the said Bench directed the husband to pay the said maintenance to the wife alongwith the arrears from the date of filing of the suit/case.

In the aforesaid circumstances, I hereby set aside the impugned order of the learned Court below and direct the plaintiff-O.P, to pay Rs. 2,000/- as monthly maintenance pendente lite to the defendant-petitioner. The arrears from the date of filing of the Divorce Case till September, 2004, should be paid to the petitioner within one month from the date of this order and in future from October 2004, it should be paid each month to her by the 15th of next succeeding month. It is made clear that this amount will be in addition to the cost of litigation which has already been ordered by the learned Court below earlier. If the plaintiff-opposite party fails to comply with this order, the said amounts should be deducted from his salary.

With the aforesaid directions, this civil revision is allowed.