JAYANTA GUPTA Vs. RATNA GUPTA

JUDGEMENT

(1.) This application under Section 115 of the Code of Civil Procedure is directed against Order No. 40 dated 20th April, 1989 passed by the Additional District Judge, Barasat in Matrimonial Suit No. 58 of 1987.

(2.) It is submitted by the learned advocate for the petitioner-husband that [the husband has filed an application under section 9 of the Hindu Marriage Act praying for restitution of conjugal rights and the wife has filed another application praying for divorce and both the said two actions are pending in the aforesaid court. The wife filed an application under section 24 of the Hindu Marriage Act in the suit filed by the husband. The learned court below after considering the income of the husband has passed an order of alimony pendente lite at the rate of Rs. 850.00 (Rs. 550.00 for the wife and Rs. 300.00 for the child) per month with effect from Jan., 1989 and a lump sum of Rs. 600.00 on account of litigation costs. The court below also held that the gross income of the husband is Rs. 3,830.00 and after making certain deductions, the court below found that the net income of the husband is Rs. 2,284/- per month. It is submitted by the learned advocate for the petitioner that the amount of alimony is exorbitantly high and it cannot be more than ⅕th of the husband's net income. The learned advocate refers to provisions of section 36 of the Indian Divorce Act of [1869]. The learned advocate also refers to a decision reported in (1978) 2 C. L, J. 602 and submits that in the absence of special circumstances, ⅕th of the husband's income less wife's income, if any, is to be taken as a basis for determining the quantum of alimony pendente lite. We have carefully considered the matter and hold that there cannot be any hard and fast rule restraining alimony to ⅕th of the income of the husband and it also varies from case to case. Here the wife is to maintain the child and we do not find any infirmity in the order complained of. The amounts of Rs. 550.00 for the wife and Rs. 300.00 for the child cannot be said to be exorbitantly high and according to us it is a very reasonable amount considering the income of the husband. The learned advocate for the petitioner submits that the monthly expenses for the child cannot be passed on an application under section 24 of the Hindu Marriage Act. The learned advocate relied on a decision reported in AIR 1981 Jammu and Kashmir 5. It is submitted by him that the maintenance for the child can only be granted in an application under section 26 of the Hindu Marriage Act and since there is no application under section 26, the amount awarded for the maintenance pendente lite of the child was passed beyond jurisdiction and the order should be set aside.

(3.) Sec. 26 of the Hindu Marriage Act is attracted for making final orders regarding custody and maintenance of the children Such final orders have obviously to be passed at the time of disposal of the suit. But where during the pendency of the suit the child is living with the mother (wife), it is only fit and proper that the court should take into account necessary expenses for the child also while making the order for alimony for the mother. Technically a consolidated amount of alimony sufficient for maintenance of the wife and the child would perhaps be more appropriate than dividing amount. But basically the order is not in force. There would be no technical defect if a consolidated sum of Rs. 850.00 (taking into account the child's expenses) had been made. Viewed in that light, the order for alimony in substance is not in force.