PREMI KIRANBALA CHARLES Vs. FRANK SOLOMAN CHARLES

JUDGEMENT

(1.) It appears that a divorce case is going on between the parties and is pending before the learned District Judge at Jabalpur. In the said case, an application under Sec. 36 of the Indian Divorce Act first made on 19.12.1984 seeking alimony pendente lite from the respondent. Since this application was not decided, another application was made and the matter brought to the notice of the learned District Judge. Both these applications have been decided by the impugned order. It is apparent that the parties have a daughter born to them out of this marriage. A sum of Rs. 75.00 per month was being paid by the respondent as maintenance of the aforesaid daughter. The learned counsel for the respondent, however, states that the respondent has stopped paying this amount from Aug., 1986 because the daughter has become major. That the daughter is still unmarried and is being maintained by the appellant is not in dispute. The learned District Judge unfortunately did not take the need of the daughter being maintained by the appellant into consideration. Comparing the pay packets of the parties, the learned Judge held that since the appellant was earning more than the respondent, she was not entitled any amount as alimony pendente lite. That is how the application was dismissed and hence this appeal.

(2.) A perusal of the impugned order itself indicates that the total amount payable to the appellant comes to Rs. 1317.00 per month. She, however, get only Rs. 556.00 as net amount after compulsory deductions and the deduction on account of loan taken by her earlier. As against this, the respondents total emoluments are Rs. 1060.00 and net Rs. 974.00 per month is available to him after deduction. In the opinion of the learned District Judge, there was nothing on record to indicate that the loan taken by the appellant was for any necessity. This reasoning, in the opinion of this court, is perverse. The jurisdiction of the court while considering such an application is to consider the requirements of the wife and the money available to her. Her past acts are not required to be scrutinised nor her compulsions in obtaining loan has to be questioned. What has also not been appreciated by the learned District Judge is that whenever one obtains loan from the employer, undertaking to permit recovery of the same from salary in suitable instalments, the justifiability or otherwise of the loan is usually taken into consideration. Such loans are not granted for immoral or illegal purposes under the circumstances, the learned judge should not have stated with a presumption against the appellant in this regard. A person, who has a steady income as the appellant does not take the loan for the sake of fun and no employer grants loan for such purposes. Under the circumstances, the validity of the transaction between her and her employer should have been accepted and only the availability of the money considered. If this was considered the inevitable conclusion would have been that the appellant was maintaining herself and her college going daughter on a sum of Rs. 556.00 only. It should not require any argument to hold that this amount is wholly inadequate for the purpose. The respondent is earning a sum of Rs. 974.00 per month and, therefore, there is no reason why he should not share some responsibility in this regard under the circumstances, a clear case for grant of alimony pendente lite exists. Not only the prices have gone up, but also the burden of the appellant has increased because of the College going daughter.

(3.) Taking into consideration the fact that the respondent has paid Rs. 75.00 per month earlier, it is directed that he will pay a sum of Rs. 100.00 per month from Aug., 1986 as alimony pendente lite. It is expected that this amount will be paid by the respondent to the appellant without further litigation. In case he refuses to do so and further litigation takes place, the court will consider that suitable steps including refusal to grant him the hearing, should be taken in the matter. In case the financial position of the appellant improves or the burden on her is reduced, the respondent may approach the court for modification of this order in accordance with law.