GANESAN Vs. RASAMMAL

JUDGEMENT

(1.) - Revision petitioner Ganesan is the husband of respondent-Rasammal. He filed H.M.C.P. No. 75 of 1990 in the Court of Subordinate Judge of Vridachalam under S.9 of the Hindu Marriage Act for restitution of conjugal rights. During the pendency of the petition, the wife came forward with I. A. No. 199 of 1992 claiming interim alimony under S.24 of the Hindu Marriage Act. The trial Court awarded Rs. 250/- per month for the wife, Rs. 75/- per month for her child and Rs. 5,00/- towards litigation expenses from 1-8-1992 by way of interim alimony. It also directed to husband to pay the money within two weeks. And this order is challenged in this revision petition.

(2.) The wife has stated in her affidavit that she was driven out of her husband's house snatching away her jewels. She has a male child. She is leading a life of misery, in her father's house. She requires Rs. 5,00/- per month for herself and Rs. 150/- per month for her child for their sustenance. She has to be paid Rs. 1,000/- by way of litigation expenses. Her husband owns 10 acres of garden land and he gets an income of Rs. 40,000/ -per annum from those lands. Revision petitioner denies the same in his counter. Besides he states that he is handicapped to some extent and he earns only Rs. 5/- or Rs. 7/- per day. He does not own any movable or immovable properties in his name. The Court below has simply observed that the petitioner has not furnished any evidence to substantiate her plea that her husband is in possession of 10 acres of garden land and gets an income of Rs. 40,000/- per annum. It has not rendered any specific finding on the means of the revision petitioner. However, it has awarded interim alimony on the ground that whatever may be the assets possessed by the revision petitioner he is duty bound to maintain his wife and child and hence the maintenance has to be awarded.

(3.) Learned counsel for the revision petitioner submits that learned subordinate Judge has erred in awarding interim maintenance having found that the wife has failed to prove the means of the husband and there is not justifiable reason for passing the order. And an application for interim maintenance is not maintainable when the main O. P. is for restitution of conjugal rights filed by the husband. However, S.24 of the Hindu Marriage Act reads that 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 proceeding, it may, on the application of the wife or the husband, order the respondent to pay 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. And the terms of this provision do not lend support of the claim of the revision petitioner that no order for interim maintenance could be passed when the husband has filed an application for restitution of conjugal rightS.Further it is significant to note that the amount of interim maintenance that one spouse may be ordered to pay the other must be such as appears reasonable to the Court in the exercise of its discretion and when this discretion has been exercised not arbitrarily but properly, the revision petitioner cannot have any grievance.