It was next contended by Mr. Wig that the wife has been guilty of concealment of the factum of the will in the application under Section 24 of the Hindu Marriage Act. As far as wills are concerned that cannot become effective until such time probate thereof is obtained. In any case the bequests which are allegedly made in favor of the wife are subject-matter of suit No. 674 of 1983 and no part of such property can be considered to be income sufficient for the support of the wife. The fact that it was not mentioned in an application under Section 24, in this view of the matter, cannot have any effect, and cannot amount to concealment as it is not material whether any will has been executed in favor of the wife or not. The bequests under the will, are going to be perfected only after the grant of probate. Therefore, it cannot be said that the will executed by the father of the respondent wife can be a subject-matter of any alleged concealment.
It is next contended that since orders for maintenance in favor of the wife have been denied under Section 125 Cr. P. C., for the same reasons, pendente lite maintenance under Section 24 of the Hindu Marriage Act should also be quashed. I do not agree. Both these provisions operate in different spheres and they are independent of each other
(2) Section 24 of the Hindu Marriage Act reads as under :-
"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 the proceeding such sum as having regard to the petitioner's own income and the income of the respondent, it may seem to the court to be reasonable."
(3) What is material under Section 24 is that the party who applies under Section 24 "has. no independent income sufficient for her or his support". "It is only when it is established that the party applying has no independent income sufficient for her or his support that an order for pendente lite maintenance can be made against the non-applicant.
(4) In addition, under Section 24 expenses of the proceedings can be ordered to be paid.
(5) What has happened in this case is that two proceedings are pending between the parties. One is a petition under Section 9 of the Hindu Marriage Act filed by the wife against the husband, and the other is a petition under Section 13(l)(ib) of the Hindu Marriage Act by the husband that the wife has deserted him.
(6) I have been informed that both these proceedings have been consolidated for the purpose of trial.
(7) Before me also there are two orders pied by the Additional District Judge, one in Section 9 proceedings and the other in Section 13 proceedings. Both the orders were passed on the same date.
(8) What the Additional District Judge has done is that he has directed Rs. 500.00 as litigation expenses and Rs. 150.00 per month as pendente lite maintenance with effect from 2/4/1983.
(9) The husband is a ticket examiner in the northern railways. He says before me that his total emoluments plus the other salary allowance comes to Rs. 1200.00 per month. Out of this deductions are made on account of provident fund, insurance etc. and his take-home pay is about Rs. 1100.00 per month. It is also stated before me that large number of proceedings were instituted inter se parties, as a result, the husband says that he has suffered a lot. That may be so, what I am concerned with in this matter is whether the order passed by the Additional District Judge needs to be revised, or not.
(10) There were proceedings inter se parties under Section 125 Cr. P.C. In those proceedings, as there were two sons born to the parties, who at the time of the proceedings under Section 125 Cr. P.O., were still minors, an order was made that a sum of Rs. 500.00 be paid as maintenance of the children. In those proceedings no maintenance was granted in favor of the wife.
(11) It is also stated that both the children born to the parties have become major and so the orders under Section 125 Cr. P.C. are no more in operation.
(12) It is urged before me by Mr. Wig that in the proceedings which were taken under Section 125 Cr. P.C. the wife had also claimed maintenance for herself. That maintenance was declined. It is therefore suggested that in view of the fact that the courts have declined to give her maintenance inspite of the fact that a revision was filed against the order declining her maintenance under Section 125 Cr. P.C., which led to a further Criminal Misc. (M) in this Court, in which also maintenance was declined by an order passed by J.D. Jain, J. on 12/12/1984 passed in Criminal Misc. (M) 944 of 1984, the wife should not be given any maintenance under Section 24 of the Hindu Marriage Act also.
(13) The main plank of arguments before me for not paying litigation expenses and pendente lite maintenance to the wife is that wife has sufficient funds at her disposal in the shape of fixed deposit of Rs. 45,000.00 . In answer to this it is contended by Mr. Ranjan Mukherjee that this amount of Rs. 45,000.00 stands in the name of the father of the wife, that this is not her own property and cannot be considered to be independent income sufficient for her support as contemplated by Section 24 of the Hindu Marriage Act. It is further stated by Mr. Ranjan Mukherjee that this amount of Rs. 45,000.00 is the subject-matter of a partition suit No. 674 of 1983 between the brothers of the wife and herself, and therefore cannot be considered to be independent income sufficient for the support of the wife.
(14) It is then stated by Mr. Wig that the father of the wife has left property bearing municipal No. 1521, Gali No. 6, West Rohtas Nagar, Shahdara which is on a plot of land of approximately 200 Sq. yards. It is also asserted by Mr. Wig that this property has been willed to the wife by the father. In reply to this contention also Mr. Ranjan Mukherjee says that this property bearing municipal No. 1521, Gali No. 6, Rohtas Nagar, Shahdara is also subject-matter of litigation in the aforesaid suit No. 674 of 1983 and as such cannot be considered to be a source of independent income, sufficient for the support of the wife. It is also asserted by Mr. Wig that in addition to the aforesaid property there is also another plot of land at Subash Park in Shahdara which was willed by the father in favor of the wife. In reply to this contention it is asserted by Mr. Ranjan Mukherjee that even the Subash Park plot is the subject-matter of litigation between the brothers of the wife and herself in that suit and as such this plot of land also cannot be considered to be an independent income, sufficient for the support of the wife.
(15) I agree with what is stated by Ranjan Mukherjee that the property which is the subject-matter of litigation in this court in suit No. 674 of 1983 cannot be considered to be independent income sufficient for the support of the wife.
(16) It was next contended by Mr. Wig that the wife has been guilty of concealment of the factum of the will in the application under Section 24 of the Hindu Marriage Act. As far as wills are concerned that cannot become effective until such time probate thereof is obtained. In any case the bequests which are allegedly made in favor of the wife are subject-matter of suit No. 674 of 1983 and no part of such property can be considered to be income sufficient for the support of the wife. The fact that it was not mentioned in an application under Section 24, in this view of the matter, cannot have any effect, and cannot amount to concealment as it is not material whether any will has been executed in favor of the wife or not. The bequests under the will, are going to be perfected only after the grant of probate. Therefore, it cannot be said that the will executed by the father of the respondent wife can be a subject-matter of any alleged concealment.
(17) It is next contended that since orders for maintenance in favor of the wife have been denied under Section 125 Cr. P. C., for the same reasons, pendente lite maintenance under Section 24 of the Hindu Marriage Act should also be quashed. I do not agree. Both these provisions operate in different spheres and they are independent of each other Mr. Ranjan Mukherjee has referred to Surjit Kaur v. Tirath Singh, [AIR 1978 Pb. 112:1978 Marriage Law Journal 47] which is also to the same effect.
(18) As stated above, it has been admitted before me that the take- home pay of the husband is approximately Rs. 1100.00 per month. Now in view of the fact that the children of the parties have become major, orders under Section 125 Cr. P.C. are inoperative. In these circumstances I do not think that the order of the learned Additional District Judge by which he has ordered payment of Rs. 150.00 per month as maintenance pendent c lite and litigation expenses of Rs. 250.00 calls for any interference.
(19) It is stated that orders passed by the Additional District Judge have not been implemented. It is stated by Mr. Wig that his client deposited a sum of Rs. 1000.00 before the trial court. It is not disputed that the withdrawal of that amount was stayed by the order dated 27/3/1985. Since 2/4/1983 the arrears of pendente lite maintenance, came to Rs. 5,250.00 . In addition, litigation expenses of Rs. 250.00 have to be paid. Thus total arrears today are Rs. 5,500.00 , Rs. 1000.00 have already been deposited. The wife is allowed to withdraw this amount, now therefore a sum of Rs. 4,500.00 should be deposited by the petitioner. I direct that the arrears of maintenance be paid, and until the arrears be paid, the proceedings in the court below shall remain stayed. It is stated before me that the arrears of the pendente lite maintenance will be paid by Installment of Rs. 1000.00 every month until the liability on account of arrears is discharged. In addition to Rs. 1000.00 the petitioner shall also pay Rs. 150.00 per month as pendente lite maintenance. The first Installment of Rs. 1000.00 plus Rs. 150.00 shall be paid on or before 7/4/1985. The 2nd Installment shall be paid on or before 7/5/1986, the 3rd on or before 7/6/1986 and the 4th on or before 7/7/1986. After July 1986 the petitioner shall pay pendente lite maintenance at the rate of Rs. 150.00 per month on or before 7th of each successive month. In case any Installment is not paid on any of the due dates, then the entire amount shall become due at once, and liberty is given to the co unset to move for appropriate action. Liberty to the parties to move an application before the trial court under Section 21B, if they so desire. The civil revision is accordingly disposed of with no order as to costs.
Print Page
It is next contended that since orders for maintenance in favor of the wife have been denied under Section 125 Cr. P. C., for the same reasons, pendente lite maintenance under Section 24 of the Hindu Marriage Act should also be quashed. I do not agree. Both these provisions operate in different spheres and they are independent of each other
Delhi High Court
Prem Nath Sarvan vs Prem Lata Sarvan on 3 March, 1986
Equivalent citations: AIR 1988 Delhi 50, 1987 (12) DRJ 45
(1) This is a Revision petition filed by the husband against the order dated 23/2/1985 passed by the court of the Additional District Judge in a petition under Section 24 of the Hindu Marriage Act, 1955.(2) Section 24 of the Hindu Marriage Act reads as under :-
"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 the proceeding such sum as having regard to the petitioner's own income and the income of the respondent, it may seem to the court to be reasonable."
(3) What is material under Section 24 is that the party who applies under Section 24 "has. no independent income sufficient for her or his support". "It is only when it is established that the party applying has no independent income sufficient for her or his support that an order for pendente lite maintenance can be made against the non-applicant.
(4) In addition, under Section 24 expenses of the proceedings can be ordered to be paid.
(5) What has happened in this case is that two proceedings are pending between the parties. One is a petition under Section 9 of the Hindu Marriage Act filed by the wife against the husband, and the other is a petition under Section 13(l)(ib) of the Hindu Marriage Act by the husband that the wife has deserted him.
(6) I have been informed that both these proceedings have been consolidated for the purpose of trial.
(7) Before me also there are two orders pied by the Additional District Judge, one in Section 9 proceedings and the other in Section 13 proceedings. Both the orders were passed on the same date.
(8) What the Additional District Judge has done is that he has directed Rs. 500.00 as litigation expenses and Rs. 150.00 per month as pendente lite maintenance with effect from 2/4/1983.
(9) The husband is a ticket examiner in the northern railways. He says before me that his total emoluments plus the other salary allowance comes to Rs. 1200.00 per month. Out of this deductions are made on account of provident fund, insurance etc. and his take-home pay is about Rs. 1100.00 per month. It is also stated before me that large number of proceedings were instituted inter se parties, as a result, the husband says that he has suffered a lot. That may be so, what I am concerned with in this matter is whether the order passed by the Additional District Judge needs to be revised, or not.
(10) There were proceedings inter se parties under Section 125 Cr. P.C. In those proceedings, as there were two sons born to the parties, who at the time of the proceedings under Section 125 Cr. P.O., were still minors, an order was made that a sum of Rs. 500.00 be paid as maintenance of the children. In those proceedings no maintenance was granted in favor of the wife.
(11) It is also stated that both the children born to the parties have become major and so the orders under Section 125 Cr. P.C. are no more in operation.
(12) It is urged before me by Mr. Wig that in the proceedings which were taken under Section 125 Cr. P.C. the wife had also claimed maintenance for herself. That maintenance was declined. It is therefore suggested that in view of the fact that the courts have declined to give her maintenance inspite of the fact that a revision was filed against the order declining her maintenance under Section 125 Cr. P.C., which led to a further Criminal Misc. (M) in this Court, in which also maintenance was declined by an order passed by J.D. Jain, J. on 12/12/1984 passed in Criminal Misc. (M) 944 of 1984, the wife should not be given any maintenance under Section 24 of the Hindu Marriage Act also.
(13) The main plank of arguments before me for not paying litigation expenses and pendente lite maintenance to the wife is that wife has sufficient funds at her disposal in the shape of fixed deposit of Rs. 45,000.00 . In answer to this it is contended by Mr. Ranjan Mukherjee that this amount of Rs. 45,000.00 stands in the name of the father of the wife, that this is not her own property and cannot be considered to be independent income sufficient for her support as contemplated by Section 24 of the Hindu Marriage Act. It is further stated by Mr. Ranjan Mukherjee that this amount of Rs. 45,000.00 is the subject-matter of a partition suit No. 674 of 1983 between the brothers of the wife and herself, and therefore cannot be considered to be independent income sufficient for the support of the wife.
(14) It is then stated by Mr. Wig that the father of the wife has left property bearing municipal No. 1521, Gali No. 6, West Rohtas Nagar, Shahdara which is on a plot of land of approximately 200 Sq. yards. It is also asserted by Mr. Wig that this property has been willed to the wife by the father. In reply to this contention also Mr. Ranjan Mukherjee says that this property bearing municipal No. 1521, Gali No. 6, Rohtas Nagar, Shahdara is also subject-matter of litigation in the aforesaid suit No. 674 of 1983 and as such cannot be considered to be a source of independent income, sufficient for the support of the wife. It is also asserted by Mr. Wig that in addition to the aforesaid property there is also another plot of land at Subash Park in Shahdara which was willed by the father in favor of the wife. In reply to this contention it is asserted by Mr. Ranjan Mukherjee that even the Subash Park plot is the subject-matter of litigation between the brothers of the wife and herself in that suit and as such this plot of land also cannot be considered to be an independent income, sufficient for the support of the wife.
(15) I agree with what is stated by Ranjan Mukherjee that the property which is the subject-matter of litigation in this court in suit No. 674 of 1983 cannot be considered to be independent income sufficient for the support of the wife.
(16) It was next contended by Mr. Wig that the wife has been guilty of concealment of the factum of the will in the application under Section 24 of the Hindu Marriage Act. As far as wills are concerned that cannot become effective until such time probate thereof is obtained. In any case the bequests which are allegedly made in favor of the wife are subject-matter of suit No. 674 of 1983 and no part of such property can be considered to be income sufficient for the support of the wife. The fact that it was not mentioned in an application under Section 24, in this view of the matter, cannot have any effect, and cannot amount to concealment as it is not material whether any will has been executed in favor of the wife or not. The bequests under the will, are going to be perfected only after the grant of probate. Therefore, it cannot be said that the will executed by the father of the respondent wife can be a subject-matter of any alleged concealment.
(17) It is next contended that since orders for maintenance in favor of the wife have been denied under Section 125 Cr. P. C., for the same reasons, pendente lite maintenance under Section 24 of the Hindu Marriage Act should also be quashed. I do not agree. Both these provisions operate in different spheres and they are independent of each other Mr. Ranjan Mukherjee has referred to Surjit Kaur v. Tirath Singh, [AIR 1978 Pb. 112:1978 Marriage Law Journal 47] which is also to the same effect.
(18) As stated above, it has been admitted before me that the take- home pay of the husband is approximately Rs. 1100.00 per month. Now in view of the fact that the children of the parties have become major, orders under Section 125 Cr. P.C. are inoperative. In these circumstances I do not think that the order of the learned Additional District Judge by which he has ordered payment of Rs. 150.00 per month as maintenance pendent c lite and litigation expenses of Rs. 250.00 calls for any interference.
(19) It is stated that orders passed by the Additional District Judge have not been implemented. It is stated by Mr. Wig that his client deposited a sum of Rs. 1000.00 before the trial court. It is not disputed that the withdrawal of that amount was stayed by the order dated 27/3/1985. Since 2/4/1983 the arrears of pendente lite maintenance, came to Rs. 5,250.00 . In addition, litigation expenses of Rs. 250.00 have to be paid. Thus total arrears today are Rs. 5,500.00 , Rs. 1000.00 have already been deposited. The wife is allowed to withdraw this amount, now therefore a sum of Rs. 4,500.00 should be deposited by the petitioner. I direct that the arrears of maintenance be paid, and until the arrears be paid, the proceedings in the court below shall remain stayed. It is stated before me that the arrears of the pendente lite maintenance will be paid by Installment of Rs. 1000.00 every month until the liability on account of arrears is discharged. In addition to Rs. 1000.00 the petitioner shall also pay Rs. 150.00 per month as pendente lite maintenance. The first Installment of Rs. 1000.00 plus Rs. 150.00 shall be paid on or before 7/4/1985. The 2nd Installment shall be paid on or before 7/5/1986, the 3rd on or before 7/6/1986 and the 4th on or before 7/7/1986. After July 1986 the petitioner shall pay pendente lite maintenance at the rate of Rs. 150.00 per month on or before 7th of each successive month. In case any Installment is not paid on any of the due dates, then the entire amount shall become due at once, and liberty is given to the co unset to move for appropriate action. Liberty to the parties to move an application before the trial court under Section 21B, if they so desire. The civil revision is accordingly disposed of with no order as to costs.
No comments:
Post a Comment