BABU LAL Vs. PREM LATA

JUDGEMENT

(1.) THIS is husband's appeal directed against on order of the District Judge, Partapgarh, passed under sec. 24 of the Hindu Marriage Act, hereinafter referred to as the "act", awarding Rs. 25/- as alimony pendente lite to the respondent-wife. From the order it is evident that the monthly income of the husband was taken to be Rs. 100/- and that of the wife at Rs. 175/- and yet Rs. 25/-were allowed to the wife as maintenance pendente lite.

(2.) IN assailing the order learned counsel for the husband contends that the necessary condition for grant of maintenance pendente lite to the wife did not exist. Learned counsel maintains that maintenance could be granted to the wife if she had no independent income sufficient for her support and, therefore the order is illegal.

(3.) IN Mukan Kunwar vs. Ajeetchand (l), Jagat Narayan J. , as he then was, in dealing with the scope of sec. 24 of the Act observed: "the award of maintenance pendente lite and expenses of proceedings under sec. 24 of the Hindu Marriage Act is in the discretion of the court. But this discretion has to be exercised on sound legal principles and not by caprice or chance or humour. If the applicant has no independent means, he or she is entitled to maintenance and expenses under this section, unless good cause is shown for depriving him or her of it. The matters that may properly be considered in this connection are (1) whether the applicant is being supported by an adulter or and (2) whether the respondent has not sufficient means. Where the wife was prepared to go and live with the husband, but the husband did not wish to keep her with him as he alleged that she was incapable of consummation of marriage, it was held that there was no reason for depriving her of maintenance and expenses. It was further held, that the fact that the wife had taken no steps to claim maintenance before the husband's petition of divorce or that she was being maintained by her parents were no grounds for depriving her of maintenance under sec. 24. Further in the absence of special circumstances-maintenance should, be allowed at one-fifth of the net income of the respondent after deductions on account of incometax and provident fund. " Learned Judge went on to say that first the court has to consider whether or not it should grant maintenance pendente lite and expenses of proceedings under this section at all. The leading principle to remember in this connection is that if the applicant has no independent means he or she is entitled to maintenance and expenses under this section, unless good cause is shown for depriving him or her of it. One of the good causes, according to learned Judge, was whether the respondent has no sufficient means. 8. I am in respectful agreement with the observations of the learned Judge. However, I am afraid this does not dispose of the aspect of the order concerning the maintenance of the children. The order of the learned District Judge clearly brings out that he had given due regard to the fact that the wife was maintaining the two children. The application of the wife as also her affidavit go to show that she had relied on the fact that she was maintaining the two children. The husband did not dispute his liability to maintain the children, but he made it a condition for maintaining them that the children should he handed over to him. One of the children is admittedly below 5 years and the other is about 8 years old. It is for the husband to seek the custody of the children, if it all, according to law, but so long as the children are in the custody of their mother a provision has to be made for their maintenance. According to the provisions or sec. 20 of the Hindu Adoptions and Maintenance Act, 1956, a Hindu is bound during his or her life time to maintain his or het legitimate or illegitimate children and the obligation continues so long as a child is a minor. The petitioner, therefore, cannot escape his liability to maintain his children and cannot legitimately refuse to maintain them only on the ground that they are not under his custody. The application moved by the respondent for the claim of maintenance is inclusive of what she is spending for the maintenance of the children. Sec. 26 of the Act lays down that in any proceeding under the Act the court may from time to time pass such interim orders as it may deem just and proper with respect to the custody, maintenance and education of minor children, consistently with their wishes, wherever possible. Sec. 24, therefore, vests a discretion in the court to make an order for the maintenance of the children pendente lite. The learned Judge has taken the income of the husband to be Rs. 100/-per month and that of the wife at Rs. 175/- per month. Considering that the wife is also earning Rs. 25/- per month has been fixed for her maintenance. The order on the whole appears to be just and equitable. If the parties were living together they could have pooled their respective income and Rs. 275/- would have been available to the family which consisted of the husband, the wife and the two children. Making allowances for emergencies and for the periods during which one may not have the full income about Rs. 60/- could be spent on the children. Then also taking note of the fact that the liability to maintain a child is primarily on the parent who earns, the wife could be left with the maintenance of one of the two children. IN other words, the husband had to contribute his share to the joint burden by providing maintenance to atleast one of the two children. If the matter is considered on this criterion then Rs. 25/- per month that has been awarded to the wife in view of the fact that she was maintaining the children is not out of proportion to the estimated income of the husband, which was only a rough estimate.