No interim maintenance if wife is not ready to live-rcr in favor of husband

No interim maintenance if wife is not ready to live-rcr in favor of husband

Section 24 in The Hindu Marriage Act, 1955
The Hindu Marriage Act, 1955
Sunita Sharma vs Upendra Kumar Sharma on 3 March, 2008

ORDER

1. This Civil Revision application is directed against the order dated
23-7-1996 passed by the Principal Judge, Family Court. Patna, in Matrimonial
Case No. 46 of 1995, whereby and whereunder the Court below rejected the
application filed by the petitioner under Section24of the Hindu Marriage Act
(hereinafter to be referred to as 'the Act' for short) claiming alimony pendente
lite for her maintenance and for the maintenance of minor son. The plaintiff-
opposite party filed Matrimonial Case No. 46 of 1995 against the petitioner for
a decree for restitution of conjugal rights and for a direction to the
petitioner to return to her matrimonial home and on failure of the petitioner,
the marriage may be dissolved by a decree of divorce.

2. The suit was contested by the petitioner by filing written statement
stating, inter alia, that she is willing to live with her husband provided
proper security is given to her as she was ill-treated by the plaintiff-opposite
party and his parents, while she was living with the opposite party. During the
pendency of the aforesaid case, the petitioner filed a petition dated 3-6-1996
praying for alimony pendente file which application was opposed by the
plaintiff-opposite party on the ground that he is a student and has no source of
income. The Court below disposed of the application by the impugned order dated
23-7-1996. The Court below came to the finding that there is no evidence on
behalf of the plaintiff-opposite party to prima facie prove that the petitioner-
wife is working as teacher in the school and she has no source of independent
income and she is fully dependent for her maintenance on her parents. The Court
below further came to the finding that the plaintiff-opposite party has also no
independent source of income and he is still prosecuting his studies and
dependent on his father. On that ground that petition filed by the petitioner
was rejected. So far the maintenance to the minor child is concerned, the Court
below held that since no separate application claiming maintenance of the child
was filed, therefore, no order can be passed. Hence, this Civil revision
application.
3. Mr. S. K. Verma, learned senior counsel appearing on behalf of the
petitioner, assailed the impugned order as being illegal and wholly without
jurisdiction. Learned counsel submitted that the Court below has committed grave
error of law insofar, as it held that the plaintiff-opposite party having no
independent source of income is not liabte to pay maintenance to the wife
according to the learned counsel, in no event, the husband can be exonerated
from his liability to maintain his wife and minor children. He put reliance on
the decisions rendered in the cases (i) Smt. Urmila Devi v Hari Prakash Bansal,
AIR 1988 Punj & Har 84, (ii) Gurmali Singh v. Bhuchari, AIR 1980 Punj & Har

120. Learned counsel further submitted that the Court below has failed to
appreciate the settle law that no separate application with regard to
maintenance of child is required and even on the basis of affidavit, such order
can be passed. In support of his contention, learned counsel referred to the
decisions in the cases of (i) Manoj Kumar Jaiswal v. Smt. Lila Jaiswal, AIR 1987
Cal 230 and (ii) Durga Pada Banerjee v. Smt. Sushmitta Banerjee. (1991) 2 Pat
LJR 215. Learned counsel lastly submitted that it was not disputed that the
plaintiff husband is able person capable of working and in such event, he is
bound to maintain the wife and minor children. Learned counsel referred to the
decisions in the cases, reported in.( 1995) 2 Pat LJ Reports, 199 and in 1997
Patna Law Reports 129. On the other hand, Mr. Farooque Ahmad Khan, learned
counsel for the husband-opposite party submitted that the main suit filed by the
plaintiff opposite party has been disposed of in terms of the judgment dated
13th June 996 and a decree for restitution of conjugal rights has been passed.
The learned counsel submitted that even-after the decree the petitioner-wife did
not resume her conjugal life. The Court below decided all the issues in favour
of the plaintiff-husband. According to the learned counsel, therefore, the
question of payment of maintenance to the wife does not arise and by reason of
passing of the decree, the application became infructuous. Learned counsel
submitted that when the main suit stood disposed of, then the application under
Section 24 of the Act does not survive. In this connection, the learned counsel
relied upon the decision in the case of Nirmala Devi v. Ramdas. AIR 1973 Punj
and Har48. Learned counsel then submitted that admittedly the opposite parly-
husband is studying and he has not finished his study. Learned counsel submitted
that it is not a case where the husband is able to work, but is not working;
rather it is a case where he has been studying and for doing work, he will have
to leave his studies. According to the learned counsel. therefore, the
principles of the law, can vassed by the learned counsel for the petitioner does
not apply. In support of his contention, he has cited two decisions, one of
Allahabad High Court in the case, of Smt. Preeti Archana Sharma. v. Ravindra
Kumar Sharma, AIR I979. All 29 and another of Mysore High Court in the case of
N. Subramanyam v. M. G. Saraswathi, AIR 1964 Mysore 38.

4. Before appreciating the rival contentions made by the learned counsel for
the parties, it would be useful too took into the provision of Section 24 of the
Hindu Marriage Act which is quoted below:--

'24. Maintenance, pendente lite and expenses of proceedings: -- Where in
any proceeding under this Act is 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 the
petitioner the expenses of 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."

5. From the aforesaid provision, it is manifest that the object of this
section is to enable the husband or wife, as the case may be, who has no
independent income sufficient for his or her maintenance or for him the expenses
of any legal proceeding under the Act to obtain maintenance and the expenses
pendente lite, so that the proceeding may be conducted without any hardship.
6. I wish to first discuss the point raised by Mr. Farooque Ahmad Khan
learned counsel for the opposite party-husband that by reason of the disposed of
the main suit, the petition claiming maintenance pcndente lite and, legal
expenses does not survive and has become infructuous. The learned counsel
submitted that the plaintiff opposite party filed the suit for decree of
restitution of conjugal right and in the event of failure on the part of the
petitioner-wife to, resume conjugal life, marriage was dissolved by decree of
divorce and in the concilialion proceeding the petitioner refused to live with
him on the ground that her husband was not in service. According to the learned
counsel, the suit has been ultimately disposed of by the judgment whereby a
decree for restitution of conjugal right has been passed in favour of the
opposite party husband and the petitioner was directed to resume matrimonial
cohabitation. Under sick circumstances, the petitioner would not be entitled to
pendente lite alimony and legal expenses. 1 have occasion to go through a copy
of the judgment passed in the suit which was supplied by the counsel. From
perusal of the judgment, it appears that the learned Principal Judge, Family
Court has considered the evidence in detail and came to the finding that the
respondent wife failed to return back to her in-laws' home despite repeated
requests and even after legal notice. The reason for not coming back to her
husband's house is obvious from the order passed by the Court below on the date
when the suit was fixed for reconciliation. The order passed by the Court below
on 8-12-1995 is worth to be quoted hereunder:-

"8-12-95. Since the suit is fixed for reconciliation and the parties are
present, I took up reconciliation matter. The petitioner-husband is ready to
keep the respondent-wife but the latter says that since the petitioner is not
doing any service, she does not want to live at her Sasural and that she will
not live with the petitioner until he does some job. The petitioner says that he
is a student and the respondent should cooperate with him so that he may
prosecute, his study properly but this entreaty of the petitioner did not seem
to have any effect on the respondent. It is, therefore, obvious that the
reconciliation has failed."

7. From the aforesaid order, it is clear that since beginning, the petitioner
wife was not ready to live with her husband as he is not doing any service and
is having no independent income. The Court below while passing the impugned
order held that the opposite party husband has no independent source of income
and is still prosecuting his study and is dependent on his father. "It is true
mat even the husband has no independent source of income or earning, but is
capable of earning being an able-bodied person lit enough to work is liable to
maintain his wife and cannot deny payment of maintenance pendente lite. But in
my considered opinion, in the facts and circumstances of the present case, this
civil revision application is not fit to be allowed. As noticed above knowing
fully well that the opposite party husband was prosecuting his study, the
marriage was solemnized, but the petitioner refused to live in the matrimonial
House on the ground that the opposite party husband is not doing any service. It
is also evident that the opposite party repeatedly requested the petitioner to
live with him in his parents house, but she refused to do so. Ultimately, the
opposite party instituted the suit for restitution of conjugal right and the
suit was decreed, but even then the petitioner did not resume conjugal right. In
such circumstances, the decisions upon which the petitioner put reliance does
not apply.
8. It is well settled that the allowance of temporary alimony is not regarded
as a matter of right, but is a matter within the judicious discretion of the
Court and this Court in revision interferes only when the discretion has been
perversely exercised by the Court below.

9. Having regard to the facts and circumstances of the case, and particularly
the finding arrived at by the Court below while disposing of the suit finally, I
do not find any reason to interfere with the impugned order passed by the Court
below.

10. This civil revision application is, accordingly, dismissed