The contention advanced criticising the procedure adopted by the Court below is of little substance. The Matrimonial Court is to follow the procedure contained in Code of Civil Procedure as far as possible. The provisions of Section 21 require the Matrimonial Court to adhere to the provisions of Code of Civil Procedure as far as may be possible and in the interest of justice. The payment of maintenance pendente lite and litigation expenses could, therefore, have been decided by the Matrimonial Court on the affidavits of the parties. There is, thus, no error of procedure.
Madhya Pradesh High Court
1. The Matrimonial Court fixed a sum of Rs. 400/- per month as maintenance pendente lite and Rs. 3,500/- as litigation expenses payable to the wife by the applicant/husband herein.
2. The learned Counsel appearing for the husband contends that in the absence of specific order of the Court to decide the question of maintenance under Section 24 of the Hindu Marriage Act, 1955 on affidavits the Court below ought to have fixed the case for recording evidence of both the parties on the said question.
3. There is, according to the learned Counsel, thus, an error of procedure commited by the Court below.
4. The contention advanced criticising the procedure adopted by the Court below is of little substance. The Matrimonial Court is to follow the procedure contained in Code of Civil Procedure as far as possible. The provisions of Section 21 require the Matrimonial Court to adhere to the provisions of Code of Civil Procedure as far as may be possible and in the interest of justice. The payment of maintenance pendente lite and litigation expenses could, therefore, have been decided by the Matrimonial Court on the affidavits of the parties. There is, thus, no error of procedure.
5. The learned Counsel for the husband then contended that the rate of maintenance fixed is excessive and disproportionate to the income of the husband and the liability on him to maintain other dependents in the family. On the question of quantum or rate of maintenance pendente lite, I have found that the husband, in his written reply filed in the Court below has admitted that he is engaged in the business of cloth and earns Rs. 500/- p.m. It is true that in business, there can be any fixed income, but, his average income cannot be roughly assessed between to 500 to 1000/-. The maintenance fixed at the rate of Rs. 400/- per month is little on a higher side. An amount of Rs. 300/- fixed as maintenance pendente lite would roughly come to about little more than 1/3rd of the income of the husband which he must as pay maintenance to the wife.
6. Similarly, the learned Counsel for the husband also challenges the litigation expenses fixed at Rs. 3500/-. It is stated that the amount fixed is excessive. This Court finds no scope for interference in that part of the quantum. The wife is residing at Jagadalpur and she will be required to attend the case pending in Durg. Looking to the journey expenses that she may require on each trip the litigation expenses fixed at Rs. 3500/- cannot be said to be excessive. The order regarding payment of litigation expenses fixed at Rs. 3500/- is maintained. It is, however, directed that the payment may be directed to be paid in 3 equal instalments at 3 different stages of the case as to be determined by the Matrimonial Court.
7. Consequently, this revision only succeeds to the extent of reducing the amount of maintenance pendente lite from Rs. 400/- to Rs. 300/-per month payable from the date of the order of the Court below. The Matrimonial Court shall also consider the fixation of 3 instalments for payment of the litigation charges to the wife.
8. In the circumstances, however, there shall be no order as to the costs.
Madhya Pradesh High Court
Siremal Burad vs Shakuntala Devi Burad on 16 February, 1994
Equivalent citations: I (1994) DMC 643
1. The Matrimonial Court fixed a sum of Rs. 400/- per month as maintenance pendente lite and Rs. 3,500/- as litigation expenses payable to the wife by the applicant/husband herein.
2. The learned Counsel appearing for the husband contends that in the absence of specific order of the Court to decide the question of maintenance under Section 24 of the Hindu Marriage Act, 1955 on affidavits the Court below ought to have fixed the case for recording evidence of both the parties on the said question.
3. There is, according to the learned Counsel, thus, an error of procedure commited by the Court below.
4. The contention advanced criticising the procedure adopted by the Court below is of little substance. The Matrimonial Court is to follow the procedure contained in Code of Civil Procedure as far as possible. The provisions of Section 21 require the Matrimonial Court to adhere to the provisions of Code of Civil Procedure as far as may be possible and in the interest of justice. The payment of maintenance pendente lite and litigation expenses could, therefore, have been decided by the Matrimonial Court on the affidavits of the parties. There is, thus, no error of procedure.
5. The learned Counsel for the husband then contended that the rate of maintenance fixed is excessive and disproportionate to the income of the husband and the liability on him to maintain other dependents in the family. On the question of quantum or rate of maintenance pendente lite, I have found that the husband, in his written reply filed in the Court below has admitted that he is engaged in the business of cloth and earns Rs. 500/- p.m. It is true that in business, there can be any fixed income, but, his average income cannot be roughly assessed between to 500 to 1000/-. The maintenance fixed at the rate of Rs. 400/- per month is little on a higher side. An amount of Rs. 300/- fixed as maintenance pendente lite would roughly come to about little more than 1/3rd of the income of the husband which he must as pay maintenance to the wife.
6. Similarly, the learned Counsel for the husband also challenges the litigation expenses fixed at Rs. 3500/-. It is stated that the amount fixed is excessive. This Court finds no scope for interference in that part of the quantum. The wife is residing at Jagadalpur and she will be required to attend the case pending in Durg. Looking to the journey expenses that she may require on each trip the litigation expenses fixed at Rs. 3500/- cannot be said to be excessive. The order regarding payment of litigation expenses fixed at Rs. 3500/- is maintained. It is, however, directed that the payment may be directed to be paid in 3 equal instalments at 3 different stages of the case as to be determined by the Matrimonial Court.
7. Consequently, this revision only succeeds to the extent of reducing the amount of maintenance pendente lite from Rs. 400/- to Rs. 300/-per month payable from the date of the order of the Court below. The Matrimonial Court shall also consider the fixation of 3 instalments for payment of the litigation charges to the wife.
8. In the circumstances, however, there shall be no order as to the costs.
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