SUBBA RAO Vs. ANASUYAMMA

JUDGEMENT

(1.) Judgment of the Court was delivered by the Hon'ble the Chief Justice. This is a Letters Patent Appeal against the order of Satyanarayana Raju J. The appellant is the husband of the respondent. He filed a petition under Section 5 of the Madras Hindu (Bigamy Prevention and Divorce) Act, 1949, for dissolving their marriage on the ground of desertion. Pending that petition the respondent applied under Sectioi 5 (7) (a) of the Act for providing for her menttenance and for giving her some amounts towards her expenses for defending the petition. The learned Subordinate Judge took that petition alorg with the main petition and dismissed both of them together. The appellant preferred an appeal against the order of the learned Subordinate Judge dismissing his main petition, under Section 5 of the Act. Pending the appeal, the respondent once again applied under Section 5 (7) (a) of the Act for making provision for her maintenance and for other expenses not only for the period when the petition was pending in the Court below but also during the pendency of the appeal. Satyanarayana Raju J. before whom the application came up for disposal, made the following, order : On consideration of all the the relevant circumstances, I think that the respondent should be directed to pay a sum of Rs. 500/- within six weeks from today to meet the expenses of the petitioner in the lower court and in this court and Rs. 75 per month from the beginning of this month before the 7th of the succeeding month until the appeal is finally disposed of in this Court."

(2.) The appellant preferred this Letters Patent Appeal against that order. The first question raised by the learned counsel is that the appellate court has no power to give interim maintenance or award other amounts towards expenses for defending the petition but its jurisdiction to award the said amounts is confined only to the period pending the appeal. Section 5 (7) (a) and (c) govern the situation and they read:

(3.) It is obvious that, under sub-section 7 (a), the Court is empowered to direct the husband to provide for the maintenance and to give the wife sufficient money to prosecute or defend the action brought by or against her so that she may be enabled to maintain herself and to escape from an oppressive marital tie or to maintain it. This provision is necessary in the interests of a wife solely depending on her husband without sufficient independent resources of her own to fight her cause under the circumstances mentioned in Section 5 of the Act Otherwise, except where third parties finance her litigation, her proceedings can be stifled for want of funds or sustenance and the beneficial provisions of the Act would not avail her. Therefore Section 5 (7) (a) in specific terms provides that ihe Court can direct the husband to pay her a sum to meet the necessary expenses of prosecuting or defending the petition and also maintenance every month untill the petition is finally disposed of Clause (c) instead of repeating the terms of clause (a), says that the Appellate Couit can exercise the powers conferred by clauses (a) and (b) pending the difposal of the appeal. The two sub clauses (a) and (b) are designed to meet separate periods, one pending the petition and the other pending the appeal... If, as the learned counsel for the respondent conterds that under clause (c) the appellate court can award her maintenance during the pendency of the petition in the lower court and also provide for expenses incurred by her in the first court, the terms of the clause would have been different. On the other hand, following the legislative practice, by clause (c), the Legislature empowered the appellate court to make a provision pending the appeal similar to that which the original court can do pending the petition. As we stated, the object of the subsection is only to provide for a wife to conduct the proceeding fairly and well and that object will be achieved by giving to the wife the necessary means to conduct the proceeding then pending. The clause either expressly or by necessary implication does not confer power on the appellate court to make a provision retrospectively. Learned counsel for the appellant then contetds that, in fxing the sum to meet expenses necessary for prosecuting or defending the appeal, the court shall give only the taxed costs. In support of his contention, no case has been placed before us nor do the provisions of the section sustain such a contention. The relevant words are 'the Court may order the husband to pay her a sum to meet the expenses ' of prosecuting or defending the petition. What are necessary for the two purposes have to be decided by the Court before whom the petition is filed or the appeal is pending. The quantum can only be fixed in each case having regard to the circumstances of that case. The only limitation on the court's power is that the amount fixed towards the expenses must be necessary for prosecuting or defending the petition. Satyanarayana Raju J. in the exercise of discretion, fixed a sum of Rs. 500/- towards expenses necessary for defending the petition as well as appeal and we may take it that, if he was asked to fix only the amount, necessary for defending the appeal, he would have fixed half that amount, i. e. Rs. 250/- Having regard to the life of an appeal in the High Court, the number of times a party may have to travel from his native place to the High Court, the reasonable fee that may be fixed to an advocate and the other out of pocket expenses that a client has to incur for purchasing records and for other expenses during his stay in the city, we cannot say that the sum of Rs. 250/- fixed is not reasonable. As regards the maintenance, learned counsel argues that we should only fix a bare maintenance to her and that in a lumpsum to enable her to float during the pendency of the appeal and that she should not be allowed any amount more than her bare maintenance. The section does not say that she should be given only bare maintenance in a lumpsum. On the other hand, in the words of the section, the Court shall give her every month, until the petition is finally disposed of, such sum as the Court, considering the circumstances of the parties, shall think reasonable for her maintenance. The amount to be fixed by the Court should have relation to her maintenance having regard to the status and the other circumstances of the parties. In this case, the respondent stated in her affidavit that her husband is carrying on money lending business on a large scale and is getting ah annual income of Rs. 10,000/-. The appellant in his counter concedes that he is doing money-lending business but says that he gets only Rs. 2,000/-. He admits that he has wet lands of about five acres. Having regard to the tendency of one party to inflate the income and of the other to deflate it.