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Gurmail Singh Vs. Bhuchari - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtPunjab and Haryana High Court
Decided On
Case NumberCivil Revn. No. 379 of 1979
Judge
Reported inAIR1980P& H120
ActsHindu Marriage Act, 1955 - Sections 9 and 24
AppellantGurmail Singh
RespondentBhuchari
Cases ReferredSmt. Lila Devi v. Tarlok Chand.
Excerpt:
- sections 100-a [as inserted by act 22 of 2002], 110 & 104 & letters patent, 1865, clause 10: [dr. b.s. chauhan, cj, l. mohapatra & a.s. naidu, jj] letters patent appeal order of single judge of high court passed while deciding matters filed under order 43, rule1 of c.p.c., - held, after introduction of section 110a in the c.p.c., by 2002 amendment act, no letters patent appeal is maintainable against judgment/order/decree passed by a single judge of a high court. a right of appeal, even though a vested one, can be taken away by law. it is pertinent to note that section 100-a introduced by 2002 amendment of the code starts with a non obstante clause. the purpose of such clause is to give the enacting part of an overriding effect in the case of a conflict with laws mentioned with the..........section 24 of the hindu. marriage act, 1955 (hereinafter referred to as the act), for maintenance pendente lite and expenses of the proceedings. by virtue of the impugned order dated 20th january, 1979 the matrimonial court has granted rs. 100/- as litigation expenses to the wife-respondent and rs. 50/- per month as, maintenance pendente lite from the date of her application. this revision petition has been admitted to d. b. because of the following question referred by d. s. tewatia, j. for determination by a larger bench'whether an able-bodied person capable of working even as an ordinary labourer or one who works on his father's or any other relation's farm or any other kind of establishment can be considered as capable of maintaining hie wife and thus being made to pay interim.....
Judgment:

J.V. Gupta, J.

1. This revision petition arises out of an application under Section 24 of the Hindu. Marriage Act, 1955 (hereinafter referred to as the Act), for maintenance pendente lite and expenses of the proceedings. By virtue of the impugned order dated 20th January, 1979 the matrimonial Court has granted Rs. 100/- as litigation expenses to the wife-respondent and Rs. 50/- per month as, maintenance pendente lite from the date of her application. This revision petition has been admitted to D. B. because of the following question referred by D. S. Tewatia, J. for determination by a larger Bench

'Whether an able-bodied person capable of working even as an ordinary labourer or one who works on his father's or any other relation's farm or any other kind of establishment can be considered as capable of maintaining hie wife and thus being made to pay interim maintenance to her when she happens to be living separately from him for the reasons mentioned in a given matrimonial dispute between them.'

2. Briefly stated the facts are that Gurmail Singh, petitioner, has moved a petition under Section 9 of the Act for restitution of conjugal rights in the Court' of the Subordinate Judge 1st Class, Moga (with enhanced powers of District Judge). In that petition, Smt. Bhuchari, the respondent-wife of the petitioner, pleaded that she has no source of income and is unable to support herself and to pay the necessary expenses of the proceedings against her under Section 9 of the Act; that' she has been living entirely on the mercy and charity of her parents and that the applicant Gurmail Singh is a moneyed man and his monthly income is Rs. 1000/-. Thus she prayed that Rs 500/- on account of expenses of the proceedings and Rupees 200/- per month as maintenance pendente lite be granted to her. The application was supported by an affidavit. To this, the husband Gurmail Singh submitted his reply that the wife is not entitled to get any maintenance pendente lite and that he does not own any property and that he has no source of income. He further pleaded that he has been working with his father. However; all those averments were not supported by any affidavit. The leamed Subordinate Judge, after hearing the parties, observed and held as under:--

'Gurmail Singh in his written reply pleaded that he has been working with his father and has got no source of income, but as stated above, his written reply has not been supported by an affidavit of the respondent. There is nothing on the file to hold that the respondent has got no independent source of income, He is an able bodied roan and even if he works as a labourer, he will be able to earn at least Rs 10/- per day, He is bound to maintain his wife. Taking into consideration all the circumstances and the status of the parties I order that Gurmail Singh respondent shall pay Rupees 100/- as litigation expenses to his wife Mst. Bhuchari and he shall also pay her maintenance pendente lite at Rs. 50/- per month from the date of this application, i e., with effect from 25th November, 1978.'

3. When the case was being heard by the learned single Judge, D. S. Tewatia, J., the counsel for the petitioner, cited a single Bench decision of thus Court, reported as Smt. Lila Devi v. Tarlok Chand. (1978) 80 Pun LR 744 in support of his submission that the husband in this case had no independent' source of income from which interim maintenance could be ordered to be paid by the Court under Section 24 of the Act, and the husband's working with his father could not be construed as being engaged in gainful employment The learned Judge found himself unable to agree with the view taken by S. P. Goyal J., in the aforesaid case because almost majority of the cases that come from the villages are of the nature where a husband works on the land of his father. This is how the matter is before this Bench.

4. We have heard the learned counsel for the petitioner. We do not find any force in his contention.

Section 24 of the Act reads:--

'Maintenance pendente lite and expenses of proceedings:--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 his proceeding, if may, on the application of the wife or the husband, order the respondent to pay to 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.'

In the case of Smt. Lila Devi's case (supra), S. P. Goyal, J., has decided the matter on the facts of that case. No proposition of law as canvassed by the counsel for the petitioner such has been laid down by the learned Judge. It has been observed therein that:

'The trial Court after considering the evidence of the parties arrived at the finding that the respondent-husband has no source of income and, therefore, was not liable to pay litigation expenses maintenance pendente lite to the wife. This is a pure finding of fact and no illegality or irregularity in the exercise of the jurisdiction has been pointed out by the leamed counsel for the petitioner which could warrant interference with this order.'

As a matter of fact, it will be a question of fact in each case to be decided by the Court on affidavits or otherwise, se to the income of the respondent against whom the order under Section 24 is being passed. Section 24 contemplates that while passing an order for maintenance pendente lite regard is to be had to the petitioner's own income and the income of the respondent'. There is nothing more than that in this Section. If in a given case, the Court comes to a conclusion that the income of the petitioner is sufficient' for the purposes of maintenance and expenses of the proceedings, no amount may be granted thereunder. On the other hand, if the petitioner, who makes an application under Section 24, has no independent income sufficient for her or his support besides meeting necessary expenses of the proceedings, he or she may claim the amount thereunder, but while fixing the amount the court has to have regard to the petitioner's own income and the income of the respondent which may be determined by it on the facts of each case. It cannot he laid down as a rule of law that if a person is working with his father, he has no income. In that context, it may be a relevant consideration that e person is an able bodied one and is capable of working even as an ordinary labourer or otherwise. It cannot be argued on behalf of the husband-petitioner in this case that simply because he is working with his father, he has no independent income and it is itself sufficient to deprive his wife to claim maintenance under S. 24. It is all the more so in the present case when the Court has came to the conclusion that there is nothing on the file to hold that the husband has got no independent source of income.

5. The learned counsel for the petitioner is under the wrong impression that the husband is required to pay maintenance pendente lite etc only it he has independent income of his own: This is not warranted by the language of Section 24 The words independent income' therein ere applicable at the time when the application for claiming maintenance is made and not subsequently at the time when the same is to be granted. Thus, it will be a question of fact in each case to be decided by the Court as to the income of the husband or the wife against whom the maintenance is going to be awarded. It is nowhere provided that if a person is working with his father's or any other relation's farm or any other kind of establishment, he is. not to pay the maintenance pendente lite on the ground that he has no independent income of his own. Even while a person is working with his own family members and relations, it cannot be said that he is having no income as such within the meaning of S. 24 of the Act.

6. In this view of the matter, this revision petition fails and is dismissed with no order as to costs.

Bhupinder Singh Dhillon, J.

7. I agree.

8. Revision dismissed.


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