KRISHNAPRIYA Vs. BIRAKISHORE

JUDGEMENT

(1.) The petitioner is the wife of the opposite party and in this revision the order of the Subordinate Judge, D/-19-6-85 is being challenged.

(2.) The facts necessary for adjudication of the present dispute may be briefly stated as follows :- An application under S.13 of the Hindu Marriage Act (hereinafter referred to as 'the Act') has been filed by the husband-opposite party which has been numbered as O.S. No. 95/83 and is pending disposal before the Subordinate Judge, Bhadrak. During the pendency of the said proceeding, the wife filed a petition under S.24 of the Act for pendente lite maintenance which was numbered as Misc. Case No. 8/85 and the said application was rejected by the Subordinate Judge by order D/-14-3-84. The Subordinate Judge had observed that as the wife was serving and had independent source of income, the application could not be entertained, but by the said order gave liberty to the wife to make an application for interim maintenance if she loses her service. Thereafter on 31-7-84, the wife filed an application under S.24 of the Act which was numbered as Misc. Case No. 106/84 claiming maintenance to the tune of Rs. 450/- per month and also claiming a sum of Rs. 350/- as costs of litigation. It was averred in the said application that she was staying with her minor child, aged four years and further the income of the husband was Rs. 2000/- per month. The husband filed an objection to the said application on 10-8-84. Thereafter instead of contesting the matter, a joint memo was filed on 30-11-84 whereunder the husband agreed to pay a sum of Rs. 250/- per month towards alimony payable from November, 1984 and the amount was to be paid on or before 10th day of each succeeding month. On the basis of the said memo miscellaneous case No. 106/84 was disposed of by the learned Subordinate Judge by order D/-1-12-84. On 9-1-85 an application was filed by the husband praying for cancellation of the order D/-1-12-84 on the sole allegation that the wife had been appointed as a teacher and was drawing a salary of Rs. 600/- per month. This application was allowed by the learned Subordinate Judge by order D/-19-6-85 and hence the present revision.

(3.) Mr. Nayak, the learned counsel appearing for the petitioner contends that in view of the joint memo filed by the parties and the husband having agreed to pay a sum of Rs. 250/- per month towards maintenance of the wife and there being no condition that in the event of the wife serving again the agreement would not operate, the Subordinate Judge had no jurisdiction to cancel the earlier order D/-1-12-84 which was passed on the basis of an agreement between the parties. The learned counsel further urges that in the application for cancellation of the order D/-1-12-84, it has been averred that the petitioner has been appointed as a teacher in Mamadula P.S.M.E. School vide letter No. 9298 D/-2-11-84 and, therefore, the order of appointment itself was prior to the consent memo filed on 30-11-84 and the order of the Subordinate Judge D/-1-12-84. No change of circumstances having taken place, the application for cancellation filed by the husband is not maintainable and the impugned order of the Subordinate Judge must be held to be contrary to law. The learned counsel for the petitioner further urges that the phrase "has no independent income sufficient for her or his support" in S.24 of the Hindu Marriage Act disentitling the applicant for receiving the alimony means that the income is such which would be really sufficient to maintain thew applicant and his or her dependent and this should be adjudged keeping in view the status of the parties, the so-called monthly income of the opposite party and all other relevant factors. According to the learned counsel, the petitioner gets an appointment as a teacher on ad hoc basis of a very shaky tenure and has also a minor child with her. That being the position, she will not be disentitled to receive maintenance from her husband who is a Bank Officer drawing a salary of Rs. 2000/- per month.