Madhya Pradesh High Court
Yashpal Singh Thakur vs Smt. Anjana Rajput on 4 May, 2000
Equivalent citations: AIR2001MP67A, AIR 2001 MADHYA PRADESH 67, (2001) 2 CIVILCOURTC 472, (2001) 1 MARRILJ 334, (2000) 3 MPLJ 127, (2001) 1 RECCIVR 33, (2000) 4 CIVLJ 813
Author: Dipak Misra
Bench: Dipak Misra
ORDER Dipak Misra, J.
1. Invoking the revisional jurisdiction of this Court under Section 115 of the Code of Civil Procedure the petitioner husband has called in question the defensibility of the Order D/- 29-10-1999 passed by the learned 4lh Additional District Judge, Jabalpur in C.S. No. 36S-A/98 whereby he has refused to entertain the application under Section 24 of the Hindu Marriage Act, 1955 (hereinafter referred to as 'the Act') filed by the petitioner.
2. Sans unnecessary details the facts as have been unfolded are that the petitioner husband filed an application under Section 13(1)(i)(ia) of the Act for dissolution of his marriage with the non-applicant on the ground of adultery and mental cruelty. The marriage between them was solemnized on 30-5-1996 at Jabalpur according to the Hindu Rites and Rituals. The non applicant is working as Technical Assistant in the State Forest Research Institute, Jabalpur and her carry home salary is Rs. 4725/-p.m. It is not in dispute that the petitioner husband was working as a private Secretary in the High Court of M.P. from October 1995 to July 1997 but resigned from the said post on 14-7-1997. It is also the case of the non-applicant that in their wed-lock a son named, Prithvipal Singh was born. The petitioner has disputed to be the father of Prithvipal Singh. The Court after hearing the parties directed for blood grouping of the petitioner to find out the father-hood but that has not been done so far due to non-availability of money for paying the fees of blood grouping. In any case that is not the controversy in the present petition.
3. During the pendency of the proceeding the petitioner filed an application under Section 24 of the Act for grant of maintenance as well as litigation expenses. The aforesaid prayer was resisted by the non-applicant wife on the ground that the petitioner has resigned from the job from the High Court to accept a better job somewhere at Delhi. It is also put forth by her that the petitioner, if makes efforts, can earn much more as he is a Stenographer in English and, there is scarcity of English Stenographers at Jabalpur.
4. Both the parties filed affidavits controverting each other's stand. The petitioner husband filed an affidavit stating that he has received Rs. 82.530/- from the High Court towards his G.P.F. However, he has denied to have received any Gratuity amount. The learned Trial Judge observed that the petitioner is capable of getting private job and is able enough to earn money to sustain himself. The Trial Court took note of the fact that the non-applicant wife is not maintaining herself alone but also the two year old son.
5. Assailing the aforesaid order, Mr. V.G. Tamaskar learned counsel for the petitioner has contended that the Trial Court has misdirected itself in appreciating the present condition of the husband and that alone makes the order vulnerable in the eye of law. Combating the aforesaid contention Miss. J. Iyer learned counsel for the non-applicant wife has contended that the petitioner has enough money to susain himself and to fight the litigation. It is also put forth by her that if he is not earning it is his own doing and he had deliberately incapacitated himself and on that ground he is not entitled to maintenance or litigation expenses as envisaged under Section 24 of the Act.
6. To appreciate the rival submissions raised at the bar, it is apposite to quote Section 24 of the Act. It reads as under:
Section 24. Maintenance pendente lite and expenses of the proceedings.--Where in any proceeding under this Act it appears to the Court that either the wife or the husband, as the cas may be, has no independent income sufficient for her or his support and the necessary expenses of the proceedings, 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."
7. On an objective reading of the said provision it is crystal clear that either party can move an application for maintenance provided such party has no means of subsistence arid the other party is in a position to provide maintenance.
8. In the case at hand the petitioner had received Rs. 82,530/- towards G.P.F. and is capable enough to earn his livelihood. In this context I may profitably refer to a decision rendered in the case of Govind Singh v. Smt. Vidya, AIR 1999 Raj 304 wherein a learned Single Judge has held as under (Para 3):
"I have carefully considered the reasons given by the learned Trial Court for rejecting the application filed by the appellant for interim maintenance, it is true that Section 24 of the Hindu Marriage Act, 1955 entitles either party to move an application for maintenance provided such party has no means of subsistence and the other party is in a position to provide maintenance. But it does not mean that the husband who is otherwise capable of earning his living should stop earning the living and start depending on earning of his wife. In the instant case it appears that the appellant Govind Singh has incapacitated himself by stopping the running the autorikshaw on hire. His a well established maxim of Anglo Saxon jurisprudence that no person can be allowed to incapacitate himself. That maxim is applicable to the case of earning husband. A person who voluntarily incapacitates himself from earning is not entitled to claim maintenance from the other spouse."
9. I am in respectful agreement with the aforesaid view. In the case at hand it can be irrefutably concluded that the husband petitioner has, by his own conduct decided to lead a leisurely life, and has made no attempts to earn money which he is capable of earning. He can not afford to incapacitate himself and sustain an application under Section 24 of the Act. It will be an anathema to the very purpose of the said provision. Hence, I am of the considered opinion that the conclusion reached at by the Trial Judge is absolutely defensible and the impugned order does not warrant any interference.
10. Resultantly, the civil revision, being devoid of merit, stands dismissed.