Income of family members of applicant can not be taken in to consideration for grant of maintenance

 The test is whether the wife or the husband, as the case may be, has any independent income sufficient for her or his support and to bear the necessary expenses of the proceedings. It does happen that, even in the absence of independent income, the party manages to keep alive and even to contest in law-courts on the help provided by relations or friends. But while considering whether any grant should be ordered, the good-will or charity of relations and friends cannot be taken into account. What is to be examined is whether there is sufficient independent income by which is meant actual income and not merely possible or potential income. It is admitted in this case there is no actual independent income of the appellant. Whether or not the father or maternal uncle have been helping her willingly or from a mere sense of duty, the Courts cannot compel them to shoulder this additional burden. Obviously whatever they give, cannot become the independent income of the appellant,

Madhya Pradesh High Court

Radhikabai vs Sadhuram Awatrai on 25 November, 1965

Equivalent citations: AIR 1970 MP 14

1. The appellant, who is the wife-defendant in the husband's suit for judicial separation, moved the Court to grant of interim maintenance and for litigation expenses under Section 24 of the Hindu Marriage Act. The Court rejected the prayer for maintenance, but granted a sum of Rs. 100/- as against the prayer for Rs. 300/- on the ground of expenses in the proceedings. Now the wife has come up in appeal praying that a monthly allowance should have been granted for her support and the expenses of the proceedings should have been granted more liberally, the husband for his part has filed a cross-objection against the grant of Rs. 100/- for the expenses of the proceedings. The questions for decision are:
(1) Whether, simply because the wife has been and is being supported by her father and by her maternal uncle, she is not entitled to a grant of money payable by the husband;
(2) Whether she being one capable, with some effort, of earning her support the husband can still be compelled to make a payment;
(3) The quantum of monthly payment for support, in case the appeal is to be allowed; and
(4) Whether there is any substance in the cross-objection.
2. The facts of this case are of the usual kind with the refinement that the wife has been charged with physical violence. It is said that the husband's relations have started a case against the wife for hurt or grievous hurt by throwing some kitchen implement at her father-in-law. Whatever the truth of these allegations and counter-allegations, and whatever the merits of the original prayer, it does appear that matters have gone quite far between the parties,
3. It is not questioned that, in principle in a case like this, the wife is entitled, during the pendency of the proceedings, to an allowance for support and also to a lump grant towards her expenses in the proceedings. These differ from the permanent alimony that may in time be granted under the next section. Here it is a provisional arrangement to enable her to keep herself alive till the final orders in the proceedings and also contest, if she chooses, the suit filed by her husband. It is conceivable that in certain circumstances, the husband may be entitled to a grant for support and expenses to be paid by the wife; but in a society like ours that would be a much rarer happening than the present situation while the wife is praying for the grant.
4. The test is whether the wife or the husband, as the case may be, has any independent income sufficient for her or his support and to bear the necessary expenses of the proceedings. It does happen that, even in the absence of independent income, the party manages to keep alive and even to contest in law-courts on the help provided by relations or friends. But while considering whether any grant should be ordered, the good-will or charity of relations and friends cannot be taken into account. What is to be examined is whether there is sufficient independent income by which is meant actual income and not merely possible or potential income. It is admitted in this case there is no actual independent income of the appellant. Whether or not the father or maternal uncle have been helping her willingly or from a mere sense of duty, the Courts cannot compel them to shoulder this additional burden. Obviously whatever they give, cannot become the independent income of the appellant,
5. There are two other circumstances which, the husband seems to feel, would justify his refusal to give anything. Firstly, that the woman's behaviour has not been correct. For one thing, the whole matter is under the consideration of the Courts; for another, it is nobody's case that the woman is living in adultery which is the only possible excuse for the refusal of maintenance in the circumstances in case there is no sufficient independent income. The other circumstances suggested is that when she left her husband's place, the wife took away some ornaments. Though there is no material in support of the husband's statement that these were worth Rs. 2,100/-, it is not unlikely that the woman went away with such ornaments as she had been actually wearing; but these ornaments cannot be treated as sufficient independent income. Section 24 does not envisage the substitution of the customary ornaments for the income nor can the Court, in our opinion, refuse to make a grant for support simply because the wife can pull on for some time by selling the ornaments. Accordingly, we would find that there being no sufficient independent income, in fact no independent income at all, there was a case for a grant for support. There was also a case for a grant of expenses which has of course been met at least in part.
6. One ground raised here is that by the standards of their class, the appellant is educated and capable, if she exerts herself, of earning sufficient money for her support. It is said that she has passed the matriculation examination and has also picked up some useful crafts like embroidery. Further it is said, she had once worked as a school teacher. All this is likely to be true, at any rate, broadly so, may be subject to some slight exaggeration by the husband who is anxious to avoid having to pay anything; but the real point is, whether because of a potential capacity to earn something, the Court can refuse to grant maintenance, in other words, is the phrase "independent sufficient income" equivalent to "potential earning capacity". In our opinion, it is not. The earning capacity is problematic and, further, no husband can be relieved of his duty to maintain the wife simply by compelling her to earn her livelihood. That way also the case for maintenance is not satisfactorily explained away.
7. Coming to the quantum, it is obvious that the monthly grant should bear a reasonable relation to the income of the husband. The proper formula would be to make an estimate of the average monthly income, after allowing for uncertainties, and to divide it by the total number of dependents including the wife and grant one snare to her. In the instant case, the estimates by the respective parties are poles apart. The husband is doing some small scale industry and tells that his income is Rs. 70/- or Rs. 75/- per month and uncertain at that. The wife on the other hand asserts that it is Rs. 200/- to 300/-. There are no data either way but since we are going to saddle the husband with a liability to make a monthly payment, it would be proper to accept his word in the absence of anything definite coming from the other side. Again, the wife asserts that the husband and his father are separate; but we have it in the evidence that during the domestic sensation, the wife is supposed to have thrown something on her father-in-law's head. The circumstances in which that happened are still being investigated; but it is clear that the husband is not completely separated from his father. Making allowance for the uncertainty of the trade, it would be fair to make a grant of allowance, for the appellant's support of Rs. 25/-. This is not much; but in the state of evidence, it may not be possible to put a heavier burden on the husband.
8. The ground for expenses of the proceedings was correct and Rs. 100/- is by no means excessive.
9. The appeal is allowed in part in the manner noted above. The cross-objection is dismissed. The parties shall bear their own respective costs.