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Prasana Kumar Patra Vs. Smt. Sureswari Patrani - Court Judgment

LegalCrystal Citation
SubjectFamily;Civil
CourtOrissa High Court
Decided On
Case NumberMiscellaneous Appeal No. 88 of 1967
Judge
Reported inAIR1969Ori12; 34(1968)CLT937
ActsHindu Marriage Act, 1955 - Sections 24; Divorce Act, 1869 - Sections 36
AppellantPrasana Kumar Patra
RespondentSmt. Sureswari Patrani
Advocates:Y.S.N. Murty, Adv.
DispositionAppeal partly allowed
Cases ReferredMukan Kunwar v. Ajeetchand
Excerpt:
- motor vehicles act, 1988 [c.a. no. 59/1988]section 173(1) proviso; [d. biswas, amitava roy & i.a.ansari, jj] appeal without statutory deposit but within limitation/or extended period of limitation maintainability - held, if the provision of a statute speaks of entertainment of appeal, it denotes that the appeal cannot be admitted to consideration unless other requirements are complied with. the provision of sub-section (1) of section 173 permits filing of an appeal against an award within 90 days with a rider in the first proviso that such appeal filed cannot be entertained unless the statutory deposit is made. the period of limitation is applicable only to the filing of the appeal and not to the deposit to be made. it, therefore, appears that an appeal filed under section 173 cannot..........section 24 of the hindu marriage act (act 25 of 1955) by which the wife was granted rs. 30 as interim maintenance and rs. 75 as litigation expenses.2. the relationship between the husband and the wife does not appear to be very cordial in that on february 1, 1967 the husband filed a suit against the wife under section 9 of the hindu marriage act for restitution of conjugal rights. during the pendency of the said suit the wife filed this petition under section 24 for interim maintenance and for expenses of the litigation. according to the wife, the husband has sufficient income to the extent of rupees 2,033 per year. the learned subordinate judge on appreciation of the evidence as discussed by him in his judgment, which i need not repeat herein, came to the conclusion that taking a.....
Judgment:
ORDER

S. Barman, C.J.

1. This is a husband's appeal1 against an order passed by the Subordinate Judge, Sambalpur, on the wife's application for maintenance under Section 24 of the Hindu Marriage Act (Act 25 of 1955) by which the wife was granted Rs. 30 as interim maintenance and Rs. 75 as litigation expenses.

2. The relationship between the husband and the wife does not appear to be very cordial in that on February 1, 1967 the husband filed a suit against the wife under Section 9 of the Hindu Marriage Act for restitution of conjugal rights. During the pendency of the said suit the wife filed this petition under Section 24 for interim maintenance and for expenses of the litigation. According to the wife, the husband has sufficient income to the extent of Rupees 2,033 per year. The learned Subordinate Judge on appreciation of the evidence as discussed by him in his judgment, which I need not repeat herein, came to the conclusion that taking a modest view of the earnings of the husband it will not 'be less than Rs. 60 per month from the Pan shop and from his joint family lands.

The reasoning on which he granted Rs. 30 as interim maintenance is that the husband has no dependent to maintain and further that in these hard days the barest minimum, expenditure for the maintenance of an adult will not be less than Rs. 30 per month and accordingly the learned Subordinate Judge thought it reasonable to direct the husband to pay Rs. 30 to the wife as interim maintenance and Rs. 75 as litigation expenses.

3. There is no doubt that the wife is entitled to certain amount of maintenance. But the question is: what should be the reasonable amount? As for maintenance pendente lite, courts generally allow it at one-fifth the income of the husband after necessary deductions. Under the Indian Divorce Act the maximum alimony pendente lite has been fixed at one-fifth the net income. Under the Hindu Marriage Act no such limit has been prescribed. In the absence of special circumstances, maintenance should be allowed at one-fifth the net income of the husband. As regards litigation expenses, it should be reasonable, Mukan Kunwar v. Ajeetchand, AIR 1958 Raj 322.

4. In determining the quantum of maintenance the conduct of the parties is also relevant; it is permissible for the court to go into the conduct of the wife with reference to the question whether she should be held to have forfeited her claim for maintenance in sympathy of her claim. In the present case, evidently, the wife refused to stay with her husband by reason of which the husband had to file a suit for restitution of conjugal rights under Section 9 of the Hindu Marriage Act.

5. The learned Subordinate Judge does not appear to have taken into consideration these aspects in fixing the quantum of maintenance granted to the wife. The finding of the learned Subordinate Judge is that the husband has an income of only Rs. 60 per month from the Pan shop and from his joint family lands. In these circumstances, I think that a sum of Rs. 30 per month as interim maintenance granted by the learned Subordinate Judge seems to be excessive. In this case, having regard to the income of the husband and the conduct of the wife Rs. 12 per month as representing one-fifth of the income of the husband will be reasonable.

6. In this view of the case, the order of the learned Subordinate Judge is modified to the extent that the wife will be entitled to Rs. 12 per month as interim maintenance. As regards litigation expenses, the order of the learned Subordinate Judge allowing Rs. 75 is confirmed. The Miscellaneous Appeal is allowed in part. There will be no order as to costs.


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