Madras High Court
Selvamurthy vs Thirupura Sundari And Anr. on 18 November, 1998
Equivalent citations: (1999)1MLJ734
ORDER S.S. Subramani, J.
1. The first respondent in marriage O.P.No. 10 of 1997 on the file of Family Court, Pondicherry is the revision petitioner. The revision is filed under Article 227 of Constitution of India.
2. The divorce petition was filed by the wife against her husband for dissolving the marriage on various grounds. It is alleged in the petition that husband was ill-treating wife both physically and mentally and that he is also living an adulterous life. It is also said that her husband had married the second respondent in the petition.
3. Counter statement was filed by the husband. Application for divorce was filed by end of 1996 and was numbered as 1 of 1997 on the file of Family Court, Pondicherry.
4. I.A.No. 154 of 1998 was also filed by the wife under Section 24 of Hindu Marriage Act. According to her, she has no independent source of income and that she is living with her parents. It is also said that husband is getting not less than Rs. 30,000 per month and he is not contributing anything towards maintenance of his wife. She requested the court the necessary directions may be given to husband to pay monthly maintenance at the rate of Rs. 5,000. She also claimed litigation expenses of Rs. 7,000.
5. In the counter-statement filed by the husband, the petitioner herein, he said that his in-laws are in very good position and her wife, who is residing with them need not be separately maintained. It is also said that his own sister, who is also his mother in-law is in possession of various items of properties, which could be utilised for wife also. Except to state that he is not getting income of Rs. 30,000, he did not say what is the income he is getting.
6. A reply affidavit was also filed by the wife reiterating her contention in the affidavit.
7. Proceedings being summary, lower court on the basis of affidavit filed by either parties decided the petition directing petitioner herein to pay a sum of Rs. 1,000 as interim alimony and Rs. 1,000 towards litigation expenses. The same is challenged in this revision under Article 227 of Constitution of India.
8. At the time of admission, Caveat was entered by the respondent and the entire matter was heard at the admission stage itself.
9. In the various grounds taken in the revision petition, it is said that the wife is not entitled to interim alimony since she deserted her husband and abandoned him. It is also said that wife has not proved her inability to maintain herself and the application is filed without any bona fide. Her conduct should be considered before passing orders for maintenance. It is also said that absolutely no evidence is let in to fix the quantum.
10. The application was filed under Section 24 of the Hindu Marriage Act for getting interim alimony. 'Alimony' is not defined in any of the matrimonial Statues of India. The origin of expression lies in Latin word 'Alimonia', meaning sustenance, and means therefore, the sustenance or support of the wife by her divorced husband and stems from the common law right of the wife to support by her husband. 'Alimony' means the allowances which husband or wife by court order pays to other spouse for maintenance while they are separated or after they are divorced or temporarily, pending a suit for divorce (pendente lite), (See Black on Law Dictionary).
11. Mayne, on Hindu Law & Usage, 14th Edition, commending on Section 24 has said that, The object of this section is to enable the husband or the wife, as the case may be, who has no independent income sufficient for his or her support and the necessary expenses of any proceeding under the Act to obtain maintenance and expenses pendente lite, so that the proceedings may be conducted without any hardship on his or her part.
12. A.N. Saha, on his book 'Marriage & Divorce' 5th Edition 1996, at page 343, said that, The object behind the provisions as to alimony pendente lite in the Hindu Marriage Act is that a wife or husband who has no independent income, sufficient for her or his support or enough to meet the necessary legal expenses, should not be handicapped.
Due to lack of financial resources, party should not be prevented from contesting the litigation, and lack of financial resources of one party should not be taken as an upper hand. It is for the above purpose, Section 24 has been enacted.
13. The procedure for granting alimony is also summary. The learned author in the same book at page 351 says thus, The petitions for alimony pendente life and litigation expenses should be ordinarily and are general disposed of on affidavits. But when there is a big divergence between the amounts claimed as net income of the husband, opportunity to cross-examine the deponent may be allowed. When the court find it difficult to decide the question on affidavits, the court can proceed to decide on recorded evidence. It is not permissible to embark on an elaborate and exhaustive investigation.
14. In Mahalingam Pillai v. Amsavalli , this Court considered the scope of Alimony. Learned Judge said that 'Alimony is a compound of two words 'alere mourish' and money a suffix which forms nn., f., aa., mn., and vbs., (From F.L. alumonier nutriement) meaning nourishment or maintenance. In this connection, under the Madras Hindu (Bigamy Prevention and Divorce) Act (VI of 1949), also Prevention and Divorce) Act (VI of 1949) also provided for the grant of interim alimony. Under Section 5 of that Act, is similar to Section 24 of the present Act, learned Judge also took note of the above fact and after stating the meaning and purpose of awarding alimony, learned Judge further held thus, The allowance of temporary alimony is not regarded as a matter of right; but is a matter within the discretion of the court. Such discretion, however, is not arbitrary but judicial in character, controlled by more or less well-established principles of law.
In practice, however, allowance is usually granted almost as a matter of course upon proof of marriage and the pendency of a suit for divorce. The general rule is that the wife is a privileged suitor in divorce cases; if she is without an income competent for her support and the maintenance of the suit, the court except in certain well-defined exceptions which will be referred to presently, will allow her alimony pendente lite and money to carry on her suit without enquiry into the merits and determine in advance the ultimate outcome of the suit.
15. The Kerala High Court had an occasion to consider this question and the same is reported in Radhakumari v. K.M.K. Nair 1982 K.L. T. 417. In paragraph 17 of the judgment, His Lordship held thus, ...If the question had to be decided on the basis of the affidavits, the court was bound to consider the question as to whose version was more acceptable. The court cannot, with folded hands as it were, adopted an attitude of utter helplessness in such situations. If this attitude is adopted, the court will not be in a position to grant alimony of expenses in any such proceedings. That is farthest from the intention of the Parliament. There are very many matters including matters of great moment like writ petitions under Articles 32 and 226, which are decide on the basis of affidavit evidence. Parties to the proceedings must necessarily get relief, if circumstances justify it. The mere fact that one party has chosen to contradict the averments in the affidavit of the other party does not absolve the court from its solemn duty to weigh the respective contentions and come to a proper decisions.
[Italics supplied] In view of this legal position, I do not find any irregularities in the procedures adopted by the lower court in disposing of the application on the basis of the affidavit.
16. Learned Counsel for the petitioner did not seriously dispute the right of the wife in claiming maintenance though the same is taken as one of the ground among various grounds taken in the revision petition. It is argued by the learned Counsel for the petitioner that wife had abandoned the matrimonial home voluntarily and living with her parents and such a woman is not entitled to get separate maintenance. I do not think that the submission of the counsel could be accepted. While considering the application under Section 24, the court is concerned only about the financial position of the parties and also whether the status of the parties are admitted. So long as there is no contention that the application is not bona fide, I do not think the contention raised by the counsel even in the revisional grounds could be accepted. The finding of the lower court that the application is maintainable is also upheld.
17. Even though wife claimed Rs. 5,000 as interim alimony, only an amount of Rs. 1,000 has been awarded.
18. Both the parties hail from a rich family as could be seen from the affidavit and counter affidavit. While fixing the quantum, court has to take into consideration the status of the parties, relative means, capacity of the husband, etc.
19. In fact in a recent decision of Honourable Supreme Court reported in Jasbir Kaur Sehgal v. District Judge , this aspect has been considered and in paragraph 8 of the judgment, it is held thus, ...No set formula can be laid for fixing the amount of maintenance. It has, in the very nature of things, to depend on the fact 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 time, the amount so fixed cannot be excessive or extortionate....
Taking into consideration this aspect, I do not think that the amount awarded by the court below is in any way excessive. A wife is entitled to live according to the status of her husband. Wife was also brought up in good atmosphere and she can expect that husband must provide her to live according to his status. If these are the considerations for fixing quantum of award, Rs. 1,000 awarded by the lower court is too meagre. Under these circumstances, the finding of the Family Court in fixing the amount is also to be upheld.
20. Learned Counsel for the petitioner seriously challenged the finding of the Family Court in awarding maintenance from the date of petition i.e., 23.12.1996. According to petitioner, when interim application was filed only on 13.4.1998, the order allowing maintenance should not have been for the period before filing the application. This according to the counsel is one without jurisdiction.
21. As against the said contention, learned Counsel for respondent submitted that there is no rule which prohibits court from awarding interim alimony prior to the date of interim application. Learned Counsel for respondent submitted that the only restriction is that it cannot be award before the date of main application since the order is passed on interlocutory application. From which date maintenance is to be awarded is a matter of discretion of the court and this should not interfere under Article 227 of Constitution of India.
22. In the decision of Jasbir Kaur Sehgal (1997) 7 S.C.C. 7, Honourable Supreme Court also considered this question and in paragraph 9 of the judgment, their Lordships held thus, The question then arises, as to from which date the wife would be entitled to claim the enhanced amount of maintenance pendente life. If the wife has no source of income it is the obligation of the husband to maintain her and also the children of the marriage on the basis of the provisions contained in the Hindu Adoptions and Maintenance Act, 1956. Her right to claim maintenance fructifies on the date of the filing of the petition for divorce under the Act. Having thus fixed the date as the filing of the petition for divorce it is not always that the court has to grant the maintenance from that date. The court has discretion in the matter as to from which date maintenance under Section 24 of the Act should be granted. The discretion of the court would depend upon multiple circumstances which are to be kept in view. These could be the time taken to serve the respondent in the petition; the date of filing of the application under Section 24 of the Act; conduct of the parties in the proceedings; averments made in the application and the reply thereto; the tendency of the wife to inflate the income out of all proportion and that of the husband to suppress the same; and the like; There has to be honesty of purpose in both the par ties which unfortunately we find lacking in this case....
[Italics supplied] Honourable Supreme Court in that case held that alimony can be claimed only from the date of order taking into consideration the facts of that case.
23. In Mahalingam Pillai case , our High Court held thus, ...The payment of alimony pendente life commences from the date of service of the petition on the husband and not from the date of the return of the citation and where no summons has been served, from the time the husband entered appearance and will cease to be operative after the decree.
24. Certain other decisions of various High Courts also may be considered.
25. In Smt. Sobhana Sen v. Amar Kanta Sen , the Division Bench set aside the direction of the single Judge wherein interim alimony was granted only from the date of application for maintenance. The Division Bench in para 12 of the judgment held thus, ...In my judgment, the learned Judge acted arbitrarily in the exercise of his jurisdiction in refusing to order payment of maintenance with effect from the date of service of notice.
26. In Subramanyam v. M.G. Saraswathi A.I.R. 1964 Mys. 38, the Division Bench of that court in paragraph 7 held thus, ...Under Section 24 the court has power to grant interim maintenance for the duration of the proceedings. There is no warrant for limiting its commencement to the date on which the application for the grant of interim maintenance was made by the Respondent as urged by the learned Advocate for the petitioner. We find that in the present case she received the notice of the petition on 30.12.1960 and we think that she should be awarded interim maintenance from that date up to the date of the termination of the proceedings.
27. The same principle was followed in another Division Bench decision of Calcutta High Court reported in Pratima Bose v. Kamal Kumar Base 68 C.W.N. 316.
28. In Samir Banerjee v. Sujata Banerjee 70 C. W.N. 633, their Lordships held thus, On the provisions of the act however I am of opinion that there is no warrant for holding that the court cannot pass a valid order for arrear maintenance from the date of the original application for judicial separation, though the application for maintenance might be made later. Section 24 of the Act does not lay down that the court's discretion to pass an order for maintenance must be either from the date of the said application under Section 24 or any period subsequent thereto. It depends in our view upon the facts and circumstances of each case, having regard to which, the discretion under the said section is to be exercised....
29. In Radhakumari case 1982 K.L.T. 417, in paragraph 26, it is held thus.
Though in some cases the view is taken that the grant should commence from the date of application under Section 24, I am unable to share the view. The section does not contain any limiting provision. The object of the enactment does not justify the court imposing on itself any such fetter, when the Parliament in its wisdom has not chosen to do so. The view taken by the Mysore High Court in N. Subramaniam v. M.G. Saraswathy and by the Punjab and Haryana Court in Sarita Mehta v. Aravind Kumar Mehta (1978) 8 P.L.R. 213 and the Calcutta High Court in Samir Banerjee v. Sujata Banerjee 70 C. W.N. 642 according to me, reflects the correct legal position. I would accordingly direct that the payment will be effective from the date of service of summons of the main petition for divorce on the wife.
30. Justice Paripoornam, as he then was in a decision reported in Nalini v. Velu 1984 K.L.T. 790, held thus, There is no legal impediment in directing that maintenance should be paid to be effective from the date of service of summons of the main petition for restitution of conjugal rights on the wife.
31. Justice J.L. Bhat as he then was, in a decision reported in Hema v. S. Lakshmana Bhat I.L.R. (1986) 1 Ker. 288 in paragraphs 11 and 12, held thus, Question which next arises for consideration is from what date this amount is to be paid. The court below has directed that the amount is to be paid from the date of I.A.No. 957 of 1983 namely 5th July, 1983. Regarding this aspect, various High Court have taken differing views. This has been noticed by the Law Commission in its working paper relating to Section 24 to Section 26 of the Act. There are three distinct trends noticeable in this regard. The Jammu and Kashmir High Court in Purim Chan Kamal has held that maintenance is payable from the date on which issue are framed in the main proceedings. The Andhra Prudish High Court in Aryan Kumar v. Sonja Kumar has taken the view that maintenance is payable from the date of the application for interim relief. The High Court of Calcutta, Delhi, Mysore and Punjab and Haryana have taken the view that interim maintenance can be made effect from the date of summons on the main petition. See: Sobhana v. Amour Kanta, Samir Banerjee v. Sujatha Banerjee, Ganging Devil v. Purushothaman, Subramoniam v. N.G. Sarawathi, Savitha Mehta v. Arvind Kumar Mehta.
This Court also had opportunity to consider the question. First decision on the point is the one in Radhakuarmi v. K.M.K. Nair where Sukumaran, J. noticed that Section 24 does not contain any limiting provision regarding the date from which the order should be effective, and held that the object of the enactment does not justify the court imposing on itself any such fetter when the parliament in its wisdom has not chosen to do so. The learned Judge directed that payment will be effective from the date of service of summons in the main petition. This view was followed in Nalini v. Velu, where Paripoornam, J. observed that there is no legal impediment in directing that maintenance should be paid from the date of service of summons in the main petition. With great respect, I agree with this view. Postponement of the effective date would be to put the spouse already in a disadvantageous position, in a more disadvantageous position. I direct that maintenance pendente lite will be paid from the date on which summons in the main petition was served on the wife.
[Italics supplied]
32. In this case, petitioner has not pleaded that by granting interim alimony from the date of petition, he will be put to great hardship and his financial position will be seriously affected if he is directed to pay any amount of alimony. The obligation of the husband to maintain his wife cannot be disputed. It is an obligation of the husband to maintain his wife in view of the status, which is now given a statutory recognition. Refusing to maintain for a long time and when wife files an application to get maintenance, she only reminds the court that husband has not discharged his marital obligations. Merely because the application was filed belatedly that will not take away the right of the wife in getting maintenance from the date of service of summons. In this case she herself is petitioner. So that question does not arise. That is why lower court fixed it from the date of main application.
33. As was held by Honourable Supreme Court, it is the discretion which the court has to exercise taking into consideration various circumstances. It is true that Honourable Supreme Court has held that the honesty of purpose in both sides must be shown. In this case, except the statement that wife has left the matrimonial home and she is being maintained by her parents well by them, there is no serious contentions. The honesty of purpose of wife cannot be questioned. When there is an allegation that her husband is living with another woman, naturally she is entitled to live separately and claim maintenance. The conduct of wife also do not show that she is not entitled to get maintenance from the date of application. When normal rule is wife is entitled to get maintenance from the date of service of summons, it is for the husband to prove that this normal rule should not be followed taking into consideration the factors stated by the Honourable Supreme Court. Except for there is a delay in filing application for interim alimony, I do not find any other circumstances against wife. As I said, husband has not pleaded that if interim alimony is granted from the date of application, he will be put to great hardship. When he has failed to maintain his wife, and if arrears of maintenance would be granted in a civil suit, at least for a period of three years, I think that the same principle could be adopted here also while exercising the discretion.
34. I do not find any merit in the revision petition. The lower court has exercised its discretion properly and has awarded only meagre amount and legal principles have also been fully considered while fixing the quantum and period.
35. In the result, the civil revision petition is dismissed. No costs. Petitioner is directed to pay the entire amount due as on date, within a period of one month from today. Only on such payment, he will be permitted to contest the main petition. In case he fails to do so, his defence will be struck off and he will not be permitted to adduce any other evidence. Consequently, C.M.P.No. 15683 of 1998 is closed.