A DAMONDAR Vs. BIMLA

JUDGEMENT

(1.) This is an appeal by the husband against the order of ths Additional District Judge dated May 8, 1973, awarding to the respondent-wife maintenance pendente lite at the rate of Rs. 28.00 per mensemn for herself and Rs. 20.00 per mensem for her child living with her and Rs 100.00as litigation expenses on an application moved by her under Section 24 of the Hindu Marriags Act (hermafter called the Act).

(2.) The respondent wife has brought an application under Section 10 of the Act for judicial separation on the ground of cruelly which is pending in the court below. Along with that she filed an application under - Section 24 of the Act claiming maintenance pendente lite at the rate of Rs. 120.00 p m. and Rs 200.00 by way of litigation expenses. The court fcund that of the two children the elder child was with the busband while the younger child was with the wife. The husband had disputed application of the wife and had contended that she had left of her own accord and that the second child was not conceived through him He had referred to the affidavit by the the wherein she was alleged to eposed that she had decided not to live with the husband. The wife had, however, taken the plea that the affidavit if any was advertently forged and that she had never left the house of her own accord. The court took the view ibat the allegation whether the affidavit on which the husband relies that the wife left of her own accord was gel from her by force and was correct or not was yet to be examined. The court found that the salary of the appellant is Rs 250.00 and after allowing deduction he is left with Rs. 140.00. He, therefore, granted Rs 28.00 p.m. as maintenance pendente lite to the wife and Rs. 20.00 for the child admittedly living with the respondent. The appellant has filed this appeal against this order of the court.

(3.) Mr. Malhotra learned counsel for the appellant contends that the wife had herself in her affidavit of 17th July, 1971 dosed that she was living separate from her husband of her own free will and she was not entitled to claim any maintenance during the pendency of the petition. Wife, however, has denied the affidavit and obviously this is a matter which still will have to be adjudicated in the main petition. Section 24 provides that where in proceedings under the Act either the wife or the husband has no independent income sufficient for her or his support and the necessary expenses of the proceedings, the court 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 lhe proceeding such such as, having regarding to the petitioner's own income and the income of the respondent, it may seem to the court to be reasonable . It was proved before the court that wife was not earning anything and no serious challenge has been made to tills finding of the court below. Having found that the net income of the husband comes to Rs. 190.00 p.m. the grant of Rs. 48.00 p.m. being Rs. 28/ for the wife and Rs. 20 for the child cannot be said to be ucreasonable or arbitrary as to call for interference. The counsel for the appellant did make an effort to challenge the quantum.. But in my view the court below has exercised its discretion properly, and there is no occasion to interfere with this quantum. Mr. Malhotra, however, strongly contends that there is no jurisdiction for the court to award maintenance to the child under Section 24 of the Act and the grant of Rs.20/ for the child was unauthorised. In this connection he referred me to Akasam Chinna Babu v Akasam Parbati. In that case the trial court had awarded Rs. 30.00 to the wife as maintenance pendente life and Rs10.00 for the daughter. The Division Bench upheld the order of the trial court so far as the maintenance to the wife was concerned but set aside the order in favour of the daughter as in its view Section 24 does not authorise grant of any pendente lire maintenance to the daughter and in terms applies either to the wife or the husband as the case may be.