An order under Section 24, Hindu Marriage Act for maintenance pendente lite and expenses of the proceeding in a matrimonial proceeding is obviously passed to provide the weaker spouse with such fund as may be reasonably necessary for her or his support and for the carriage of the litigation and such an order automatically comes to an end with the termination of the main proceeding in the Court which passes the order. The proceeding being rather summary in nature, the object of the order being ad hoc and the duration of the order being temporary, the approach of the Court to such an order should be ut res magis valeat qnam pereat, to sustain it wherever possible and not to interfere unless intervention is irresistible in law.
From the materials on record it appears that the wife is living away in United Kingdom for several years prior to the institution of this matrimonial proceeding by the husband and has supported herself all these years without any contribution from the husband. She is obviously entitled to spend whatever she can and it may be that while she is earning about 40 per week, she is spending much more. But in this application filed by her under Section 24, Hindu Marriage Act, we are not so much concerned with what she is getting and spending, but what she can claim as reasonably necessary for her support. We do not take this to be the law that under Section 24 of the Hindu Marriage Act, the applicant spouse is only to produce her or his monthly account or budget and would automatically be entitled to the amount of deficit from the non-applicant spouse, but that a spouse would be entitled only to such an amount which can be reasonably necessary for her or his support as the spouse of the opposite party, after deducting therefrom the income, if any, of the applicant spouse.
2. That goes to explain as to why the Amendment Act of 1976 has taken care to make it clear by amending Section 28 of the Hindu Marriage Act that no appeal would be available against any such order, as prior to such amendment there was a view that such an order was appealable, though a contrary view was also maintained. Non-appealability, as pointed out by the privy Council in N.S. Venkatagiri Ayyangar, AIR 1949 PC 156 at p. 158, endows an order with some sort of finality and where, as here, the legislature, having found orders under Section 24 being challenged in appeal, has now taken away the same by an express amendment, the legislative intent must be taken to be more manifest that the order, right or wrong, is not to be disturbed on merits. This has been pointed out by one of us in the Division Bench decision of this Court in Ashit v. Susmita, .
3. But after hearing the learned counsel for the parties and going through the records ourselves, we are, however, satisfied that the instant case warrants our intervention even in revision as, in our view, the trial Judge in making the impugned order in the exercise of his jurisdiction under Section 24, Hindu Marriage Act, has acted illegally and with material irregularity within the meaning of Section 115 of the Civil P. C. The provisions of Section 24 of the Hindu Marriage Act are reproduced hereinbelow : --
"Where in any proceeding under this Act, it appears to the Court that either the wife or the husband, as the case may be, has no independent income sufficient for her or his support and the necessary expenses of the proceeding, it may on the application of the wife or the husband, order the respondent to pay to the petitioner the expenses of the proceeding and monthly, during proceeding, such sum as having regard to the petitioner's own income and income of the respondent, it may seem to the Court to be reasonable."
4. It is, therefore, obvious that the jurisdictional fact which would entitle a Court to exercise its powers under Section 24 is the want of independent income of the applicant spouse sufficient for her or his support and that such jurisdiction is to be exercised having regard to the applicant-spouse's own independent income and the income of the non-applicant spouse. And it should, therefore, be equally obvious that if a Court invokes Section 24 without finding that the applicant has no independent income sufficient for her or his support or passes an order without having regard to the respective income of the parties, it exercises its jurisdiction illegally and with material irregularity to warrant interdiction in revision under Section 115(1)(c) of the Civil P. C.
5. It appears from the impugned order that the trial Court has found that while the applicant-wife's independent income is 40.27 per week, the weekly expenses of the wife with the children should be assessed at 54.50 and "the she runs a deficit of 14.23 per week." The Court has also found that the husband "has Rs. 1800/- per month left to himself" as his income. And by the impugned order, the Court has directed the husband to pay to the wife Rs. 900/- per month as maintenance pendente lite.
6. From the materials on record it appears that the wife is living away in United Kingdom for several years prior to the institution of this matrimonial proceeding by the husband and has supported herself all these years without any contribution from the husband. She is obviously entitled to spend whatever she can and it may be that while she is earning about 40 per week, she is spending much more. But in this application filed by her under Section 24, Hindu Marriage Act, we are not so much concerned with what she is getting and spending, but what she can claim as reasonably necessary for her support. We do not take this to be the law that under Section 24 of the Hindu Marriage Act, the applicant spouse is only to produce her or his monthly account or budget and would automatically be entitled to the amount of deficit from the non-applicant spouse, but that a spouse would be entitled only to such an amount which can be reasonably necessary for her or his support as the spouse of the opposite party, after deducting therefrom the income, if any, of the applicant spouse. As we have pointed out in Chitra v. Dhruba, , in the class-ridden society that we live in, the amount reasonably sufficient for the support of a woman as the wife of a man for the purpose of Section 24 must have a reasonable correlation with the income of the husband and, however much one may resent, what may be held to be reasonably necessary for the support of the wife of a rich businessman or a high salaried officer, cannot be regarded to be reasonably necessary for the support of the wife of a petty clerk or a small trader. If the amount of maintenance awardable to a wife under Section 24 is to be determined on the basis of the income of the husband then the amount which can be regarded to be reasonably sufficient for her support must also depend on and vary with the same. Since a woman can invoke Section 24 only as the wife of a man, the amount necessary for her support within the meaning of that Section would cover only such amount as can be reasonably necessary for the necessaries suited to the status and position that she can enjoy as the wife of her husband. A woman, even though having an income on the higher side, may still show that she requires yet a higher amount for meeting her expenses according to her own status and standard. But in order to entitle her to any pendente lite maintenance under Section 24 as the wife of her husband, she would have to show that the amount that she earns is not reasonably sufficient for her support in accordance with the status and position she would have as the wife of her husband. It is in this view of the matter that we have in Chitra v. Dhruba (supra) awarded the wife pendente lite maintenance to the tune of Rs. 5758/- per month even though the wife was having an independent income of her own of about Rs. 1200/- per month, as the husband in that case was found to have an income of 40000 per annum. Be that as it may, what we are trying to impress is that a wife cannot be held to be entitled to maintenance pendente lite under Section 24, Hindu Marriage Act solely or simply on the ground that she is running in deficit in running her separate household. The trial Court would have jurisdiction to award maintenance under that Section only on the finding that the applicant wife has no independent income sufficient for her support and what amount would be sufficient for the support of the wife must be determined on the basis of the income of the husband. The trial Court not having determined as to what amount the wife applicant can reasonably claim for her support as the wife of the husband opposite party and not having found that she does not earn that income, the absence of the jurisdictional fact to invest the Court with the jurisdiction to invoke Section 24 is apparent on the face of the record.
7. Under Section 36 of the Divorce Act, 1869 and under Section 39 of the Parsi Marriage and Divorce Act, 1936, pendente lite maintenance can be awarded only to the extent of one-fifth of the husband's net monthly average income. Though Section 24 of the Hindu Marriage Act has fixed no such ceiling, a Division Bench of this Court in Surendra Nath v. Puspa, (1978) 2 Cal LJ 602 at P. 604 has accepted that limit to be ordinarily a safe guide, in the absence of special circumstances. For there may be special circumstances which may justifiably require the award of pendente lite maintenance for an amount more than one-fifth of the husband's income as in a case where a deserted wife has to maintain herself along with several minor children. We are not required in this case to decide as to what share of the husband's monthly income a wife is entitled to as a general rule under Section 24 of the Hindu Marriage Act. It may be that, if the wife is the half of the husband (better or worse) or the Ardhangini (as according to the Hindu notion), then she may in a given case claim the half of the 'Husband's income to be awardable to her as pendente lite maintenance. But the trial Judge ought to have considered that the wife having Admittedly an income of 40.27 per week or about Rs. 2700/- per month while the husband has monthly income of Rs. 1800/- per month, whether the wife can still be regarded as not to have any income sufficient for her support as the wife of a husband belonging to that income group. In that backdrop, the trial Judge was required to "have regard'' to the respective income of the wife and the husband being about Rs. 2700/- and Rs. 1800/- per month respectively, and after having due regard thereto, was required to find as to whether any further amount could be reasonably necessary for the wife for her support as the wife of her husband It has been found by the trial Judge that the wife has purchased and is maintaining a car of her own. The trial Judge ought to have told us, before ordering payment of maintenance by the husband, that the wife, who has purchased and is maintaining a personal car of her own, cannot still maintain herself. The trial Court not having approached the matter from the proper perspective has made an illegal exercise of its jurisdiction.
8. The learned Counsel for the husband respondent has also assailed the impugned order on the ground that the Court below has also taken into consideration the expenses necessary for the two minor daughters. It is true that Section 24 in terms provides only for maintenance awardable to the wife while Section 26 deals with maintenance of minor children. But as has been pointed out by one of us in the Division Bench decision of this Court in Manoj v. Lila, , under Section 26 of the Hindu Marriage Act, interim order for maintenance and education, as distinguished from post-decree orders for permanent maintenance, for the minor children can be made even without any formal application in writing and that a Court has perfect jurisdiction to grant pendente lite maintenance to minor children even without the formal application and, therefore, granting of such maintenance to the minor children, even when moved by an application labelled as one under Section 24 only, cannot be branded as without jurisdiction or to involve any jurisdictional question, even though Section 24 does not in terms provide for maintenance for children. As has been held in Manoj v. Lila (supra), if in substance the wife has applied for maintenance of the children also which can be awarded under Section 26 even without a formal application and the materials on record justify such grant, then the application being labelled as one under Section 24 only is a mere matter of form and a Court would not be making either any illegal assumption or illegal exercise of jurisdiction in making such order. But as already noted, we would have to allow the revision as the trial Judge in arriving at the impugned decision exercised his jurisdiction illegally and with material irregularity as he has nowhere found that the applicant wife as the wife of a husband earning about Rs. 1800/- only per month, has no independent income sufficient for her support, even though she is earning about Rs. 2700/-per month.
9. The impugned order is obviously an interlocutory order, "an order made in the course of a suit" within the meaning of the Proviso to Section 115(1) of the Civil P. C., added thereto by the Amendment Act of 1976. Under those provisions, such an order would be amenable to revision only when in addition to its being the product of non-exercise, illegal exercise or illegal assumption of jurisdiction, it is also such a one as would cause failure of justice or irreparable injury to the party affected or is such which would have disposed of the main proceeding if it was made in favour of the party aggrieved. An illegal order may not necessarily be an unjust order as, for example, an order made in illegal assumption of jurisdiction may otherwise be a just one. Similarly, an unjust order may still be technically legal as it may have been arrived at without any infraction of law. But in the case at hand, we are satisfied that the order directing the husband to pay the deficit incurred by the wife in running her separate establishment without determining as to what amount, if any, the wife can reasonably claim for her support as the wife of the husband having an income as aforesaid, cannot be a just order and it would be trite to say that an order which is not just causes failure of justice.
10. We would accordingly allow the revision, set aside the impugned order and direct the trial Court to dispose of the application afresh in accordance with law and in the light of the observations made herein. The trial Court must bear in mind that it is not what the wife is spending, even if reasonably, that would decide the matter, but the Court must determine what amount the wife can reasonably claim for her support and that as the wife of a spouse belonging to the income group of her husband. It would be then for the Court to decide as to whether any amount would be awardable to the wife as reasonably necessary for her support over and above her own independent income.
11. The revision is accordingly allowed in the manner as stated above, but without any order as to costs. Records to go down at once. The trial Court is directed to dispose of the application as expeditiously as possible and, at any rate, within six months from the date of the communication of this order.
Ajit Kumar Nayak, J.
12. I agree.
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From the materials on record it appears that the wife is living away in United Kingdom for several years prior to the institution of this matrimonial proceeding by the husband and has supported herself all these years without any contribution from the husband. She is obviously entitled to spend whatever she can and it may be that while she is earning about 40 per week, she is spending much more. But in this application filed by her under Section 24, Hindu Marriage Act, we are not so much concerned with what she is getting and spending, but what she can claim as reasonably necessary for her support. We do not take this to be the law that under Section 24 of the Hindu Marriage Act, the applicant spouse is only to produce her or his monthly account or budget and would automatically be entitled to the amount of deficit from the non-applicant spouse, but that a spouse would be entitled only to such an amount which can be reasonably necessary for her or his support as the spouse of the opposite party, after deducting therefrom the income, if any, of the applicant spouse.
Calcutta High Court
Dr. Utpal Kumar Banerjee vs Smt. Majula Debi Banerjee on 11 April, 1988
Equivalent citations: AIR 1989 Cal 80, 92 CWN 1123
1. An order under Section 24, Hindu Marriage Act for maintenance pendente lite and expenses of the proceeding in a matrimonial proceeding is obviously passed to provide the weaker spouse with such fund as may be reasonably necessary for her or his support and for the carriage of the litigation and such an order automatically comes to an end with the termination of the main proceeding in the Court which passes the order. The proceeding being rather summary in nature, the object of the order being ad hoc and the duration of the order being temporary, the approach of the Court to such an order should be ut res magis valeat qnam pereat, to sustain it wherever possible and not to interfere unless intervention is irresistible in law.2. That goes to explain as to why the Amendment Act of 1976 has taken care to make it clear by amending Section 28 of the Hindu Marriage Act that no appeal would be available against any such order, as prior to such amendment there was a view that such an order was appealable, though a contrary view was also maintained. Non-appealability, as pointed out by the privy Council in N.S. Venkatagiri Ayyangar, AIR 1949 PC 156 at p. 158, endows an order with some sort of finality and where, as here, the legislature, having found orders under Section 24 being challenged in appeal, has now taken away the same by an express amendment, the legislative intent must be taken to be more manifest that the order, right or wrong, is not to be disturbed on merits. This has been pointed out by one of us in the Division Bench decision of this Court in Ashit v. Susmita, .
3. But after hearing the learned counsel for the parties and going through the records ourselves, we are, however, satisfied that the instant case warrants our intervention even in revision as, in our view, the trial Judge in making the impugned order in the exercise of his jurisdiction under Section 24, Hindu Marriage Act, has acted illegally and with material irregularity within the meaning of Section 115 of the Civil P. C. The provisions of Section 24 of the Hindu Marriage Act are reproduced hereinbelow : --
"Where in any proceeding under this Act, it appears to the Court that either the wife or the husband, as the case may be, has no independent income sufficient for her or his support and the necessary expenses of the proceeding, it may on the application of the wife or the husband, order the respondent to pay to the petitioner the expenses of the proceeding and monthly, during proceeding, such sum as having regard to the petitioner's own income and income of the respondent, it may seem to the Court to be reasonable."
4. It is, therefore, obvious that the jurisdictional fact which would entitle a Court to exercise its powers under Section 24 is the want of independent income of the applicant spouse sufficient for her or his support and that such jurisdiction is to be exercised having regard to the applicant-spouse's own independent income and the income of the non-applicant spouse. And it should, therefore, be equally obvious that if a Court invokes Section 24 without finding that the applicant has no independent income sufficient for her or his support or passes an order without having regard to the respective income of the parties, it exercises its jurisdiction illegally and with material irregularity to warrant interdiction in revision under Section 115(1)(c) of the Civil P. C.
5. It appears from the impugned order that the trial Court has found that while the applicant-wife's independent income is 40.27 per week, the weekly expenses of the wife with the children should be assessed at 54.50 and "the she runs a deficit of 14.23 per week." The Court has also found that the husband "has Rs. 1800/- per month left to himself" as his income. And by the impugned order, the Court has directed the husband to pay to the wife Rs. 900/- per month as maintenance pendente lite.
6. From the materials on record it appears that the wife is living away in United Kingdom for several years prior to the institution of this matrimonial proceeding by the husband and has supported herself all these years without any contribution from the husband. She is obviously entitled to spend whatever she can and it may be that while she is earning about 40 per week, she is spending much more. But in this application filed by her under Section 24, Hindu Marriage Act, we are not so much concerned with what she is getting and spending, but what she can claim as reasonably necessary for her support. We do not take this to be the law that under Section 24 of the Hindu Marriage Act, the applicant spouse is only to produce her or his monthly account or budget and would automatically be entitled to the amount of deficit from the non-applicant spouse, but that a spouse would be entitled only to such an amount which can be reasonably necessary for her or his support as the spouse of the opposite party, after deducting therefrom the income, if any, of the applicant spouse. As we have pointed out in Chitra v. Dhruba, , in the class-ridden society that we live in, the amount reasonably sufficient for the support of a woman as the wife of a man for the purpose of Section 24 must have a reasonable correlation with the income of the husband and, however much one may resent, what may be held to be reasonably necessary for the support of the wife of a rich businessman or a high salaried officer, cannot be regarded to be reasonably necessary for the support of the wife of a petty clerk or a small trader. If the amount of maintenance awardable to a wife under Section 24 is to be determined on the basis of the income of the husband then the amount which can be regarded to be reasonably sufficient for her support must also depend on and vary with the same. Since a woman can invoke Section 24 only as the wife of a man, the amount necessary for her support within the meaning of that Section would cover only such amount as can be reasonably necessary for the necessaries suited to the status and position that she can enjoy as the wife of her husband. A woman, even though having an income on the higher side, may still show that she requires yet a higher amount for meeting her expenses according to her own status and standard. But in order to entitle her to any pendente lite maintenance under Section 24 as the wife of her husband, she would have to show that the amount that she earns is not reasonably sufficient for her support in accordance with the status and position she would have as the wife of her husband. It is in this view of the matter that we have in Chitra v. Dhruba (supra) awarded the wife pendente lite maintenance to the tune of Rs. 5758/- per month even though the wife was having an independent income of her own of about Rs. 1200/- per month, as the husband in that case was found to have an income of 40000 per annum. Be that as it may, what we are trying to impress is that a wife cannot be held to be entitled to maintenance pendente lite under Section 24, Hindu Marriage Act solely or simply on the ground that she is running in deficit in running her separate household. The trial Court would have jurisdiction to award maintenance under that Section only on the finding that the applicant wife has no independent income sufficient for her support and what amount would be sufficient for the support of the wife must be determined on the basis of the income of the husband. The trial Court not having determined as to what amount the wife applicant can reasonably claim for her support as the wife of the husband opposite party and not having found that she does not earn that income, the absence of the jurisdictional fact to invest the Court with the jurisdiction to invoke Section 24 is apparent on the face of the record.
7. Under Section 36 of the Divorce Act, 1869 and under Section 39 of the Parsi Marriage and Divorce Act, 1936, pendente lite maintenance can be awarded only to the extent of one-fifth of the husband's net monthly average income. Though Section 24 of the Hindu Marriage Act has fixed no such ceiling, a Division Bench of this Court in Surendra Nath v. Puspa, (1978) 2 Cal LJ 602 at P. 604 has accepted that limit to be ordinarily a safe guide, in the absence of special circumstances. For there may be special circumstances which may justifiably require the award of pendente lite maintenance for an amount more than one-fifth of the husband's income as in a case where a deserted wife has to maintain herself along with several minor children. We are not required in this case to decide as to what share of the husband's monthly income a wife is entitled to as a general rule under Section 24 of the Hindu Marriage Act. It may be that, if the wife is the half of the husband (better or worse) or the Ardhangini (as according to the Hindu notion), then she may in a given case claim the half of the 'Husband's income to be awardable to her as pendente lite maintenance. But the trial Judge ought to have considered that the wife having Admittedly an income of 40.27 per week or about Rs. 2700/- per month while the husband has monthly income of Rs. 1800/- per month, whether the wife can still be regarded as not to have any income sufficient for her support as the wife of a husband belonging to that income group. In that backdrop, the trial Judge was required to "have regard'' to the respective income of the wife and the husband being about Rs. 2700/- and Rs. 1800/- per month respectively, and after having due regard thereto, was required to find as to whether any further amount could be reasonably necessary for the wife for her support as the wife of her husband It has been found by the trial Judge that the wife has purchased and is maintaining a car of her own. The trial Judge ought to have told us, before ordering payment of maintenance by the husband, that the wife, who has purchased and is maintaining a personal car of her own, cannot still maintain herself. The trial Court not having approached the matter from the proper perspective has made an illegal exercise of its jurisdiction.
8. The learned Counsel for the husband respondent has also assailed the impugned order on the ground that the Court below has also taken into consideration the expenses necessary for the two minor daughters. It is true that Section 24 in terms provides only for maintenance awardable to the wife while Section 26 deals with maintenance of minor children. But as has been pointed out by one of us in the Division Bench decision of this Court in Manoj v. Lila, , under Section 26 of the Hindu Marriage Act, interim order for maintenance and education, as distinguished from post-decree orders for permanent maintenance, for the minor children can be made even without any formal application in writing and that a Court has perfect jurisdiction to grant pendente lite maintenance to minor children even without the formal application and, therefore, granting of such maintenance to the minor children, even when moved by an application labelled as one under Section 24 only, cannot be branded as without jurisdiction or to involve any jurisdictional question, even though Section 24 does not in terms provide for maintenance for children. As has been held in Manoj v. Lila (supra), if in substance the wife has applied for maintenance of the children also which can be awarded under Section 26 even without a formal application and the materials on record justify such grant, then the application being labelled as one under Section 24 only is a mere matter of form and a Court would not be making either any illegal assumption or illegal exercise of jurisdiction in making such order. But as already noted, we would have to allow the revision as the trial Judge in arriving at the impugned decision exercised his jurisdiction illegally and with material irregularity as he has nowhere found that the applicant wife as the wife of a husband earning about Rs. 1800/- only per month, has no independent income sufficient for her support, even though she is earning about Rs. 2700/-per month.
9. The impugned order is obviously an interlocutory order, "an order made in the course of a suit" within the meaning of the Proviso to Section 115(1) of the Civil P. C., added thereto by the Amendment Act of 1976. Under those provisions, such an order would be amenable to revision only when in addition to its being the product of non-exercise, illegal exercise or illegal assumption of jurisdiction, it is also such a one as would cause failure of justice or irreparable injury to the party affected or is such which would have disposed of the main proceeding if it was made in favour of the party aggrieved. An illegal order may not necessarily be an unjust order as, for example, an order made in illegal assumption of jurisdiction may otherwise be a just one. Similarly, an unjust order may still be technically legal as it may have been arrived at without any infraction of law. But in the case at hand, we are satisfied that the order directing the husband to pay the deficit incurred by the wife in running her separate establishment without determining as to what amount, if any, the wife can reasonably claim for her support as the wife of the husband having an income as aforesaid, cannot be a just order and it would be trite to say that an order which is not just causes failure of justice.
10. We would accordingly allow the revision, set aside the impugned order and direct the trial Court to dispose of the application afresh in accordance with law and in the light of the observations made herein. The trial Court must bear in mind that it is not what the wife is spending, even if reasonably, that would decide the matter, but the Court must determine what amount the wife can reasonably claim for her support and that as the wife of a spouse belonging to the income group of her husband. It would be then for the Court to decide as to whether any amount would be awardable to the wife as reasonably necessary for her support over and above her own independent income.
11. The revision is accordingly allowed in the manner as stated above, but without any order as to costs. Records to go down at once. The trial Court is directed to dispose of the application as expeditiously as possible and, at any rate, within six months from the date of the communication of this order.
Ajit Kumar Nayak, J.
12. I agree.
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