Madhya Pradesh High Court
Deepak Shrivastava vs Smt. Jyoti on 23 November, 2015
WP-5078-2015
(DEEPAK SHRIVASTAVA Vs SMT. JYOTI)
23-11-2015
Shri Vinay Gandhi, learned counsel for petitioner.
Shri S.Golwalkar, learned counsel for respondent.
Heard finally with consent.
This writ petition under Article 227 of the Constitution of India is at the instance of the husband challenging the order of interim maintenance passed by the trial court dated 1/7/2015.
In brief, the petitioner has filed a divorce petition before the Family Court in which an application u/S.24 of the Hindu Marriage Act was filed by the respondent and the Family Court by the impugned order has directed payment of interim maintenance of Rs.5,000/- per month to the respondent as also the travelling expenses and the litigation expenses of Rs.8,000/-.
The learned counsel for petitioner challenging the impugned order has submitted that the trial court has not taken into consideration the income of the respondent whereas counsel for the respondent has supported the impugned order.
Having heard the learned counsel for parties and on the perusal of the record, it is noticed that though the trial court after considering the material has found that the respondent is working as Assistant Professor in Sociology but while determining the maintenance amount, the trial court has not taken into account the income of the respondent.
This court in the matter of Raghubir Yadav Vs. Smt. Purnima Kharga (Yadav) reported in 2001(1) MPLJ 603 has held that the trial court is required to address itself to find out whether the wife had any income from the alleged sources and is required to determine the income. In that case since the income of the wife was not determined, therefore, the order of the trial court granting interim maintenance was set aside.
This court in the matter of Raghubir Yadav (supra) has held as under:-
"7. To appreciate the rival submissions raised at the Bar, it is apposite to refer to Section 24 of the Act. It reads as under :
"24. Maintenance pendente lite and expenses of proceedings- 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 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."
On a bare reading of the aforesaid provision it becomes graphically clear that the said provision has been enacted for grant of maintenance pendente lite to a party in a matrimonial proceeding. This provision has been made with the avowed purpose to provide financial assistance to the indigent spouse to maintain herself or himself during the pendency of the proceeding and also to have sufficient funds to carry on litigation so that, he or she does not suffer in the case for lack of funds. If a spouse is earning that does not mean that he or she is not entitled to maintenance. In the case of Sharad Kumar Gotee (supra), this Court has held in categorical terms that even if a wife is earning she is still entitled to maintenance. The question in every case would be, what is the income of the other spouse and what should be an appropriate sum to be granted towards monthly maintenance allowance. In the case of Pradeep Kumar Kapoor (supra), it has been held that the words 'support' and 'maintenance' are synonymous. 'Support' means to provide money for a person to live on. Learned D.P. Wadhwa, J. (as his Lordship then was) held that when one talks of maintenance and support the definition of 'maintenance' as given in Hindu Adoptions and Maintenance Act, 1956 should be adopted. In the case of Dev Dutt Singh (supra), it has been held that the word 'support' is of wide import and it has to be according to the standard of the parties: It has also been observed therein that 'maintenance' has to be fixed according to the standing of the parties, their wealth and the environment to which they and their married state have accustomed. It should be borne in mind that it is imperative for the husband to maintain the wife. The wife cannot be allowed to face starvation or to live like a church mouse but while fixing the quantum of maintenance certain aspects are to be taken into consideration. It has been held in the case of Dev Dutt Singh (supra), as under:
"What is a proper proportion of the husband's income to be given to the wife as maintenance pendente lite is a question to be determined in the light of all the circumstances of a particular case. Section 24 is not a Code of rigid and inflexible rules, arbitrarily ordained, and to be blindly obeyed. It leaves every thing to the Judge's discretion. It does not enact any mathematical formula of one-third or any other proportion. It gives wide power, flexible and elastic, to do justice in a given case."
In the case of Pradeep Kumar Kapoor (supra), certain principles have been laid down indicating the basis on which an application under Section 24 of the Act should be decided. It reads as under :
"In deciding the application under Section 24 of the Act, the Court has to act in accordance with sound judicial principles and cannot act in an arbitrary fashion to the prejudice of either of the parties. The following principles would appear to be relevant for the purpose:
(1) position and status of the parties; (2) reasonable wants of the claimant (towards food, clothing, shelter, medical attendance and treatment, education and the like);
(3) income of the claimant;
(4) income of the opposite party; (5) number of persons opposite party is obliged to maintain. Two corollaries may be added here : (1) in arriving at the income of a party only involuntary deductions like income-tax, provident fund contribution, etc., are to be excluded; and (2) though under the law opposite party may not be obliged to maintain brother or sister but if that brother or sister having no income is living with the opposite party as member of his family and where either there are no parents or are unable to maintain themselves, the Court may in a given circumstance consider the expenses to be incurred on the maintenance of brother or sister by the opposite party. After all, Court cannot be expected to adopt a mechanical approach while interpreting the provisions of law incorporating principles of social justice like Section 24 of the Act."
Thus, from the aforesaid, it becomes crystal clear that maintenance allowance pendente lite has to be decided on the facts of each case. The Statute does not provide for allowing l/5th or l/4th or l/3rd of the income of the husband as maintenance allowance. Ample discretion has been conferred on the Court. The Court has to strike a balance so that spouses can live with dignity according to the social status. At this juncture, I may refer to the decision rendered in the case of Jasbir Kaur Sehgal (supra), wherein their Lordships held as under :
"No set formula can be laid for fixing the amount of maintenance: It has, in the very nature of things, to depend on the facts and circumstances of each case. Some scope for leverage can, however, be always there. The Court has to consider the status of the parties, their respective needs, the capacity of the husband to pay having regard to his reasonable expenses for his own maintenance and of those he is obliged under the law and statutory but involuntary payments or deductions. The amount of maintenance fixed for the wife should be such as she can live in reasonable comfort considering her status and the mode of life she was used to when she lived with her husband and also that she does not feel handicapped in the prosecution of her case. At the same time, the amount so fixed cannot be excessive or extortionate."
(quoted from the placitum)
8. The present factual matrix has to be tested on the touchstone of the aforesaid enunciation of law. Submission of Mr. Hyder, learned Counsel for the petitioner, is that the petitioner had produced his income-tax returns and, therefore, the determination of quantum of interim maintenance is absolutely vulnerable. In this context I may usefully refer to a Division Bench decision of the Bombay High Court rendered in the case of Vinod Dulerai Mehta v. Kanak Vinod Mehta, AIR 1990 Bombay 120, wherein P.B. Sawant, J. (as his Lordship then was) speaking for the Court held as under :
"...As is common knowledge, income-tax returns do not reflect the true position of the income of a party for several reasons, and cannot be taken as the sole guide for determining it in proceeding such as the present one."
The aforesaid submission, therefore, does not impress this Court. However, it has been submitted by Mr. Hyder that the learned trial Judge has determined the income without any basis. The learned Counsel has submitted that the petitioner is not that a great cine artiste to earn a lac of rupees per month. It is well-known that in a case of this nature diverse claims are always made when one inflates the income and other suppresses. An element of conjectures and guess work has to be done by Courts. The Courts should keep in mind that an order under Section 24 of the Act does not become a windfall for one of the applicants and nor does it become a harsh penalty for the other. A golden balance has to be struck while expressing discretion in the matter. On a perusal of the order it is noticed that the Court below has proceeded totally on conjectures by fixing the income. He has taken note of some deposits made by the petitioner within eight months, but that does not establish that the income of the petitioner is a lac of rupees per month. Quite apart from the above, it is perceived that the petitioner had also alleged that the non- applicant has performed a number of television serials and stage plays and was working in a T.V. serial at the time of consideration of the application.
The learned Additional District Judge has not appreciated this aspect in proper perspective and has brushed it aside in a sweeping manner. He should have addressed himself .to find out whether the wife had any income from the said sources or those were the acts of the past. Judging from an angle I find the order passed by the learned trial Judge is unsustainable".
In the present case also, the perusal of the impugned order reveals that the interim maintenance has been awarded to the respondent without even mentioning the income of the respondent and since a balance is required to be struck by the trial court while awarding the maintenance, therefore, the impugned order passed by the trial court cannot be sustained and is hereby set aside with a direction to the trial court to decide the respondent's application for grant of maintenance u/S.24 of the Act afresh in accordance with law. It is made clear that this court has not expressed any opinion on the quantum of maintenance awarded by the family court and the family court will be at liberty to determine the maintenance on the basis of the evidence which may be same, higher or lower than the amount determined in the impugned order.
The writ petition is accordingly disposed off. c.c as per rules.
(PRAKASH SHRIVASTAVA) JUDGE