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N. Subramanyam Vs. M.G. Saraswathi - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtKarnataka High Court
Decided On
Case NumberMisc. Appeal Nos. 155 and 156 of 1961
Judge
Reported inAIR1964Kant38; AIR1964Mys38; (1963)1MLJ180
ActsHindu Marriage Act, 1955 - Sections 24 and 28; Indian Divorce Act - Sections 36; Bombay Hindu Divorce Act, 1887 - Sections 6
AppellantN. Subramanyam
RespondentM.G. Saraswathi
Appellant AdvocateH. Nanjundasastry, Adv. in No. 155 of 1961 and ;K. Venkataramanan, Adv. in No. 156 of 1961
Respondent AdvocateH. Nanjundasastry, Adv. in No. 156 of 1961 and ;K. Venkataramanan, Adv. in No. 155 of 1961
Excerpt:
.....of the petitioners husband is held to be invalid, originally it was tenanted land and the land was vested with the government. the land tribunal has to consider the application for grant of occupancy rights to the petitioner as he was holding the land as a tenant prior to and as on 1.3.1974. - it is only the independent income of the wife that can be taken into account, for any help that others including a near relation like the father or brother may render is, in its very nature, at the will of such person. the award of these items otherwise the very object of the provision for their award would be defeated. if established, cannot be defeated by allowing time to elapse and the pendency of the proceedings to end......appeal no. 156/61 the wife complains that the amount granted is inadequate and that the refusal of interim alimony and expenses was unjustified and urges certain other minor grievances also.2. though the husband's appeal purports to be against the grant of alimony itself, his learned advocate has confined himself to urging that the amount granted is excessive. he does not contend that no alimony at all should have been granted.3. it is not in dispute that the husband gets a monthly pay of rs. 211/- and an additional sum of rs. 34/- by way of allowances, and that he has 4 1/2 acres of dry land of which, however, he is not the sole owner, since it is joint family property in which his two brothers also have rights. while the wife puts the income from the land at rs. 2000/- per year, the.....
Judgment:

N. Sreeenivasa Rau, Offg. C.J.

1. Both these appeals are directed against the decision of the Principal Civil Judge, Bangalore,who, while granting a decree of divorce to the petitioner (husband), awarded permanent alimony to the Respondent (wife) at Rs. 35/- per month from March 1961 and refused to grant her maintenance pendents lite and expenses of the proceedings applied for by her. In Miscellaneous Appeal No. 155/61 the husband challenges the grant of alimony, while in Miscellaneous Appeal No. 156/61 the wife complains that the amount granted is inadequate and that the refusal of interim alimony and expenses was unjustified and urges certain other minor grievances also.

2. Though the husband's appeal purports to be against the grant of alimony itself, his learned Advocate has confined himself to urging that the amount granted is excessive. He does not contend that no alimony at all should have been granted.

3. It is not in dispute that the husband gets a monthly pay of Rs. 211/- and an additional sum of Rs. 34/- by way of allowances, and that he has 4 1/2 acres of dry land of which, however, he is not the sole owner, since it is joint family property in which his two brothers also have rights. While the wife puts the income from the land at Rs. 2000/- per year, the husband says that it is only Rs. 50/-. The husband has examined himself and has confirmed this estimate of the income. He has not been cross-examined on that point. The wife has not stepped into the witness-box.

4. Dealing with the question of alimony, the learned Judge of the court below says that the wife's claim of Rs. 70/- per month on the basis of l/3rd of the husband's income being an appropriate measure cannot be accepted, as no authority has been shown and the granting of alimony is discretionary. He says that having regard to ihe circumstances of the case, viz., that the wife is young and has been used to a fairly decent standard of living and to the status of the parties, a sum of Rs. 35/- would be reasonable. He also adds that in awarding the amount he is bearing in mind the fact that the petitioner (husband) possibly intends to marry again and the bringing up of a family in these days is Expensive. He further says that if the Respondent (wife) is at a later time in a position to maintain herself, the petitioner could approach the court for a reconsideration of the amount of alimony awarded.

It may at once be said that the possibility of the petitioner embarking upon another marriage and the consequent increase in his expenses was not a relevant circumstance in considering what was the appropriate amount to be awarded as alimony in the existing situation. If the petitioner married again and found that his situation required any modification in regard to the alimony, it would be for him to approach the court when the matter would be considered. As regards the Respondent attaining a position in which she can. maintain herself, the learned Judge himself, has stated that the petitioner may approach the court again end has not taken that possibility as a circumstance for assessing the alimony to be granted.

5. The learned Advocate for the petitioner urges that Rs. 35 /- is excessive in the light of the petitioner's income and Rs. 20/- or Rs. 25/- per month would be equitable. The learned Advocate for the Respondent (wife) relies upon what is described as the basis of 1/3 of the total income of the husband which, he says, has been accepted as the proper basis by the courts. That, no doubt, appears to have been the basis adopted by the English Courts at one time but does not seem to have been followed in recent times. It seems to us that no arithmetical rule can be adopted as a matter of course. While regard must undoubtedly be had to the income and other circumstances of the husband, the court has also to bear in mind that the wife must be provided with the means for reasonable subsistence.

The amount granted by the court below can under no circumstances be regarded as excessive as urged by the learned advocate for the petitioner, nor, as suggested by the learned Advocate for the petitioner, can we take note of the fact that the Respondent's father is supporting her and helping her in her studies. It is only the independent income of the wife that can be taken into account, for any help that others including a near relation like the father or brother may render is, in its very nature, at the will of such person. At the same time, we cannot accept the contention urged on behalf of the Respondent that the expenses needed for her studies also should be taken into account, for while the husband has to provide enough means to enable the wife to maintain herself, it is no part of his obligation to enable her to equip herself for a calling or to provide for expenses for other purposes. It appears to us, however, that there is some substance in the contention put forward on behalf of the wife that Rs. 35/- a month is too meagre for the wife to support herself. Taking the present cost of living and the standard of life to which the parties are accustomed as also the petitioner's income into consideration, it seems to us that Rs. 50/- per month would represent the appropriate amount.

6. As regards the Rsepondent's prayer for interim alimony and expenses of the proceedings, the learned Judge does not discuss the matter at all but contents himself with refusing them saying:

'There is no direction made regarding interim alimony or costs of defending this application.'

The grant of these items undoubtedly is a matter of discretion. But there must be some indication of such discretion being exercised judicially. If the wife has no independent resources, she would, in matrimonial proceedings, be entitled to get from her husband interim maintenance and some amount towards the expenses of the proceedings, irrespective of the merits of the case. The respondent has no independent resources. The Court below should have awarded her both interim maintenance and some suitable amount for expenses. It should also have passed orders promptly on the application for. the award of these items otherwise the very object of the provision for their award would be defeated.

It is no doubt true that, in the case on hand, the duration of the proceedings was short, mainly on account of the fact that there was no contest on the question of divorce. But that in itself was no reason for deferring decision on the Respondent's application to the final stage. Nor can it be said that since the proceedings had themselves terminated, there was no occasion to grant interim maintenance or expense. The right to those items. if established, cannot be defeated by allowing time to elapse and the pendency of the proceedings to end. The party concerned may have provided herself with the requisite means in some other way and she is entitled to reimburse herself or to repay others if she has raised the means from others. Though, under Section 36 of the Indian Divorce Act and Section 6 of the Bombay Hindu Divorce Act, 1887, interim maintenance is limited to a maximum of 1 / 5 of the husband's income, no such limitation is placed under Section 24 of the Hindu Marriage Act, 1955. The matter is purely one of discretion. It appears to us that Rs. 40/- per month towards interim maintenance would be appropriate.

7. As regards the expenses of the proceedings, Rs. 50/- may be regarded as suitably meeting the requirements. Under Section 24 She Court has power to grant interim maintenance for the duration of the proceedings. There is no warrant for limiting its commencement to the date on which the application for the grant of interim maintenance was made by the Respondent, as urged by the learned Advocate for the petitioner. We find that in the present case she received ihe notice of the petition on 30-12-1960 and we think that she should be awarded interim maintenance from that date up to the date of the termination of the proceedings.

8. The learned Advocate for the Respondent has pointed out some defects in the order of the Court below and the consequent decree. The order directs that permanent alimony is to commence from March 1961. This would mean that the alimony would have to be reckoned with effect from 1-3-1961. It is seen that the final order was made on 11-2-1961. There is no reason why the Respondent should be deprived of permanent alimony between 12-2-1961 and 1-3-1961. She is entitled to it from 12-24961. The learned Advocate also points out that the order of the Court below does not fix a date for payment. It seems to us that it would conduce to the convenience of both the parties if a date is fixed for payment.

9. The result of the discussion above is that the Respondent is awarded interim maintenance at Rs. 40/- per month from 30-12-1960 up tp and inclusive of 11-2-1961 and Rs. 50/- towards the expenses of the proceedings and, in modification of the order of the Court below, she is awarded permanent alimony at Rs. 50/- per month with effect from 12-2-1961. The aggregate amount due in respect of interim alimony, expenses of the proceedings and permanent alimony from 12-2-1961 up to the end of March 1962 less the amount already paid shall be paid by the Appellant (husband) on or before the 10th of April 1962. The permanent alimony in respect of the month of April and subsequent months shall be paid on or before the 10th of the succeeding month.

10. Accordingly, Miscellaneous Appeal No. 155/61 is dismissed and Miscellaneous Appeal No. 156/61 is allowed to the extent mentioned above. In the circumstances of the case, the parties shall bear their own costs in both the courts.

11. Order accordingly.


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