USHA Vs. SUDHIR KUMAR

JUDGEMENT

(1.) IN this Letters Patent appeal against the judgment of a learned Single Judge of this Court dated February 21, 1969, reducing (in an appeal under Section 28 of the Hindu Marriage Act, hereinafter called the Act) the amount of maintenance pendente lite and the amount of litigation expenses allowed by the order of the District Judge, Chandigarh, dated October 26, 1968, from Rs. 300 per mensem and Rs. 1,000 to Rs. 200 per mensem and Rs. 500 respectively, it has been strenuously urged by Mr. Ck>kal Chand Mital, the learned Counsel for the Appellant (hereinafter referred to as the wife) that (i) the maintenance to which the wife is otherwise found to be entitled cannot be reduced on the ground that "she is living with her parents", (ii) in calculating the disposable income of the husband deductions from his gross income have normally to be allowed only for compulsory exactions like income tax etc. and not for voluntary contributions to provident funds or life insurance premia or installments for repayment of loans taken from provident funds or from the Government etc. and that (iii) there is no warrant whatever for absolutely restricting the jurisdiction of a Court under Section 24 of the Act to the grant of maintenance allowance to the wife subject to a maximum of 1/5th of the net monthly income of the husband. Arguments have also been addressed by counsel incidentally about the circumstances in which this Court may justifiably interfere in an appeal under Section 28 of the Act with the orders passed by the trial Court in exercise of its discretion under Section 24 of the Act in so far as the reasonableness of the quantum of litigation expenses or maintenance allowance are concerned. These questions have arisen in the following circumstances:

(2.) AFTER her marriage to the Respondent, the wife gave birth to a daughter in March, 1966. In June 1968, she filed a petition against the Respondent under Section 10 of the Act for the grant to her of a decree for judicial separation. She also made an application under Section 24 of the Act for a direction to the Respondent to pay her a sum of Rs. 3,700 as expenses for litigation etc., and for payment of Rs. 780.50 paise as maintenance pendente lite for herself and her child. The manner in which she had worked out the amount of expenses and the maintenance allowance was detailed in schedules attached to her application. She had claimed Rs. 245 per month for the maintenance of her child and Rs. 535.50 Paise for herself. The schedules further show that out of the litigation expenses claimed by her Rs. 1,850 was shown as expenses of the litigation itself and another sum of Rs. 1,850 for periodical expenses connected with the litigation. The claim under Section 24 was resisted by the Respondent. In his order dated October 26, 1968, the learned District Judge, Chandigarh gave a finding to the effect that the wife had no independent income to maintain herself. That finding was not seriously contested before the District Judge and has not at all been contested at any stage thereafter. The District Judge further found that there was not much difference between the salary of the Respondent mentioned in the affidavit of the wife (Rs. 880 per month) and the salary disclosed by the Respondent himself in his affidavit (Rs. 850.25 paise per month). After considering the facts and circumstances of the case, the District Judge directed the Respondent to pay Rs. 300 per month for maintenance and Rs. 1,000 as expenses for litigation to the wife. Dissatisfied with the quantum of the amounts directed to be paid by him, the husband preferred an appeal to this Court under Section 28 of the Act against the order of the learned District Judge.

(3.) WHEREAS Mr. Mittal vehemently argued that the learned Single Judge should not have interfered with the discretion of the trial Court in the matter of the quantum of litigation expenses and maintenance allowance, Mr. K.L. Sachdev, on the other hand submitted with equal vehemence that sitting in exercise of appellate jurisdiction under Clause X of the Letters Patent we should sot interfere in the discretion exercised by the learned Single Judge. There is no doubt that in the matter of fixation of the quantum of the litigation expenses and maintenance allowance a good deal of discretion lies with the trial Court. In so far as the question of the grant itself is concerned, there is practically no discretion with the Court. If it is found in a proceeding under the Act that the Applicant under Section 24 has no independent income sufficient for the Applicant's support and the necessary expenses of the proceeding, the Court must normally on the application of such a spouse order the Respondent to pay the Applicant the expenses of the proceeding and a reasonable monthly allowance. Though the word used in Section 24 is "may", it would be only in extraordinary circumstances that a Court would refuse to grant an application under that provision if the conditions precedent for grant of such allowance are fully satisfied. In the matter of fixation of quantum, different criteria are laid down for litigation expenses on the one hand and the maintenance allowance on the other. So far as the litigation expenses are concerned, the Court must normally direct the payment of "the expenses of the proceeding" and no question of Court's own idea about such expenses comes into the picture. While deciding the question of such expenses also, the Court is, however, not expected to be led away by any figures which the Applicant may suggest. The trial Court is expected to know the amount of expenses required for Court fees, cost of judicial papers, typing expenses, process fees and diet money for witnesses, commission fees, fees of some medical or other expert wherever such a witness has to be examined and the usualness charged by counsel in that particular Court for undertaking the prosecution or defence of such cases. Once the Court finds that the Applicant has no independent income sufficient to meet the necessary expenses of the proceeding, it has no discretion in the matter of judging the reasonableness of the proper amount of litigation expenses.