MITRA SAHA DEFENDANT Vs. ANIL KUMAR SAHA

JUDGEMENT

(1.) THIS appeal is from an order passed by the Additional District Judge, 12th Court, Alipore, under section 24 of the Hindu Marriage Act, 1955. The material facts are as follows : -

(2.) ON September 17, 1968 the husband, who is respondent No. 1 before me, initiated a proceeding for divorce under the said Act. The wife entered appearance on October 29, 1968 and filed her written statement on February 17, 1969. After the usual intermediate steps had been gone through, the Court below fixed June 13, 1969 as the date of hearing of the proceeding. On June 11, 1969 that is two days prior to the date fixed for hearing of the original proceeding, the wife applied under section 24 for maintenance pendente lite and expense of the proceeding. Disposing of this application the court below fixed a sum of Rs. 60/- per month, as maintenance payable with effect from June 15, 19g9 and Rs. 100/-only as Litigation expenses. Being dissatisfied with this order the wife has preferred the instant appeal. The learned Judge in determining the amounts relied on the evidence of the husband in preference to that of the wife. Going through the evidence I do not think that, the amounts fixed by the learned Judge are inadequate in the circumstances of the case. The husband is a school teacher getting a monthly salary of about Rs. 300/- and he also earns about Rs. 300/- a year as examiner. Thus his monthly income docs not exceed Rs. 350/ -. Out of this amount he has to pay Rs. 70/- as rent and roughly Rs. 15/- as electric charges every month. Meeting these and certain other charges he is left with about rs. 250/- with which he has to maintain himself, a child born of his marriage with the appellant and a widowed sister who looks after the house-hold. Though the appellant in her examination-ia chief put her husband's monthly income at a much higher figure but in cross-examination she appears to have given up this claim and did not seriously dispute the financial position of her husband as stated by him. On the above facts it is not passible to hold that the amounts fixed as expenses of the proceeding and maintenance pendente lite are unreasonable or insufficient.

(3.) THE main contention on behalf of the appellant advanced before me is that the court below was in error in allowing maintenance not from the date of the service of notice of the original proceeding as is usually done but from a later date. Mr. Mihir Kumar roy appearing for the appellant relied on two decisions of this Court, (1)Sobhana Sen, appellant v. Amar Kanta sen, respondent, AIR 1959 Calcutta 455 and (2) Pratima Bose, appellant v. Kamal Kumar Bose, respondent, 68 cwn 316 in which it has been held that maintenance pendente lite ought to be allowed with effect from the date of the service of the notice of the proceeding and that delay in making the application is not a ground for refusing to grant maintenance from the said date. In my reading, however, what these authorities have laid down is a general rule and not an inflexible formula to bo applied in every case irrespective of the facts and circumstances. Section 24 leaves the grant of maintenance pendente lite in the discretion of the court and under the section the court can direct such sum to be paid as maintenance as it may seem to the court to be reasonable. In the instant case allowing maintenance to be paid from the date of the service of the notice would require the husband to pay in a lump an amount which, having regard to his income and general financial pesition, would be extremely difficult for him to raise and as at consequence the hearing of the proceeding for divorce would be deferred for an indefinite period. Delay by itself may not be a valid ground to refuse maintonance to be paid from the date of the service of the notice but the court in my opinion can certainly take into account the reason for the delay and other relevant circumstances. It would appear that even in (1) Sobhana Sen's case the decision ultimately rests on the finding that there was no undue delay in making the application. No order made under section 24 remains operative after the proceeding is disposed of and considering the circumstances of this case one is left with a feeling that the application, made only two days prior to the hearing of the original proceeding, was calculated to put off the hearing as long as possible. This also seems to be the drift of the order passed by the learned Judge.