Skip to content


Sushma Khanna Vs. Suresh Khanna - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtDelhi High Court
Decided On
Case NumberCivil R. Appeal No. 33 of 1981
Judge
Reported in1982RLR47
ActsHindu Marriage Act - Sections 24
AppellantSushma Khanna
RespondentSuresh Khanna
Advocates: C.M. Oberoi,; Avinash Ahlawat and; V.K. Agnihotri, Advs
Cases ReferredIn Usha vs. Sudhir Kumar
Excerpt:
.....against order of trial court - whether trial court order that petitioner entitled to rs. 1000 as litigation expenses and rs. 450 as maintenance from her husband justified - amount on account of maintenance and litigation expenses determined after taking into consideration source of income of opposite party - husband's disposable income was rs. 1537 - grant of amount of rs. 450 as monthly expenses and rs. 1000 as litigation expenses out of disposable income of her husband was reasonable - held, trial court order upheld. - - preeti archana vs .ravind kumar, air1979all29 it has been observed 'section 24 uses the word 'support' and does not use the word 'standard' or 'status'.it is clear that the court must keep in view that one cannot live like a lord and the other like a servant...........style'. it has been further observed that if a party has to pay insurance premium or provident fund or income-tax, these are necessary expenses which must be deducted from the gross-income to arrive at a net income. in kashinath vs. smt. devi, air 1971 ori 295 it has been observed,' in determining the quantum of maintenance, the courts have to take into consideration several factors like the status of the family, the earnings and the commitments of the husband and what is required by the wife to maintain herself'. it has been further observed by orissa high court, 'the court should not give maintenance to the wife which would keep her in luxury and would make judicial separation profitable and also impede any future chances of reconciliation'. in bhagwan dutt vs . smt. kamla devi, :.....
Judgment:

Sultan Singh, J.

(1) This petition u/s 115, Cpc, is directed against the order of the Adj, Delhi, dt. 1.12.80 directing the husband to pay a sum of Rs. 1000.00 as litigation expenses to the wife and Rs. 450.00 p.m. as maintenance for her support w.e.f. 30.9.80, the date when she made an application u/s 24 of the Hindu Marriage Act ('the Act') in proceedings for divorce u/s 13 of the Act.

(2) Briefly stated the facts are that the marriage between the parties was solemnised according to Hindu rites at Delhi on 27.1.79. They lived together at Madras. The respondent is employed in I.T.C. Hotels. Previously the was posted at Hotel Chola, Madras but now the is posted at Jammu in Asia Hotel. The wife in her application u/s 24 of the Act, alleges that she has been in possession of few Share certificates of the value of Rs 2000.00 and that she has no other source of income. She has claimed Rs. 5000.00 as litigation expenses and Rs. 2000.00 per month as maintenance. The trial court has held that the wife is not in a position to support herself and that her income from the share certificates is Rs. 100.00 or Rs. 150.00p. a. and she has no other source of income. As regards the husband the trial court has concluded that his net monthly salary was Rs. 1137.00. The petitioner-wife feeling aggrieved has filed this revision. [S. 24 is then reproduced].

(3) For determination of the amount payable first it has to be determined whether the applicant has any independent income sufficient for her support and to meet the litigation expenses. If it is held that he or she has no independent income, an order may be passed providing for maintenance and litigation expenses. The maintenance and litigation expenses are not in the nature of a permanent arrangement. It is only a temporary arrangement during the pendency of the proceedings under the Act. The amount on account of maintenance and litigation expenses has to be determined after taking into consideration the source of income of the opposite party. Section 24 of the Act requires the court to give a direction for monthly allowance such sum as it considers to be reasonable. Thus the statute does not require the court to make any mathematical calculation to arrive at any definite proportion of income of the opposite party for payment on account of maintenance or litigation expenses. The gross income of the opposite party has to be kept in mind for judging the standard of living. From the gross income one has to deduct the necessary expenses. The expenses may be compulsory or optional. Similarly there are various types of deductions made from the salary of an officer. The deduction may also be compulsory or optional. Compulsory expenses and deduction are to be deducted from the gross income and out of the balance a reasonable amount should be fixed for payment of the maintenance and the litigation. In other words, one has to determine the disposable income of the opposite party.

(4) In Smt. Preeti Archana vs . Ravind Kumar, : AIR1979All29 it has been observed 'Section 24 uses the word 'support' and does not use the word 'standard' or 'status'. It is clear that the court must keep in view that one cannot live like a Lord and the other like a servant. There must be some balance. It cannot be that while one lives in penury the other lives in grand style'. It has been further observed that if a party has to pay insurance premium or provident fund or income-tax, these are necessary expenses which must be deducted from the gross-income to arrive at a net income. In Kashinath vs. Smt. Devi, Air 1971 Ori 295 it has been observed,' in determining the quantum of maintenance, the courts have to take into consideration several factors like the status of the family, the earnings and the commitments of the husband and what is required by the wife to maintain herself'. It has been further observed by Orissa High Court, 'the court should not give maintenance to the wife which would keep her in luxury and would make judicial separation profitable and also impede any future chances of reconciliation'. In Bhagwan Dutt vs . Smt. Kamla Devi, : 1975CriLJ40 which was a matter regarding maintenance of the wife u/s 488 of the Cr. P C, the Supreme Court observed that the court has to find out as to what is required by the wife to maintain a standard of living which is neither luxurious nor penurious, but is modestly consistent with the status of the family. In Usha vs. Sudhir Kumar, 1974 Plr 195 it has been observed, 'disposable income is arrived at by deducting from the gross income only such items of expenses over which the respondent has no control of any kind such as direct taxes like income-tax etc.' It has been further observed that 'in working out the disposable income, no deduction should be made from the gross income in respect of running the household of the respondent paying house rent or electricity or water charges, paying the salaries of his domestic servants, payment by him of life insurance premium or for voluntary savings such as provident fund or purchase of National Savings Certificates etc.' Thus Allahabad has taken a view that Provident fund and life insurance premium should be deducted to determine the disposable income while Punjab & Haryana High Court has taken the view that life insurance premium or the provident fund should not be taken into consideration while calculating the disposable income. For determination of the amount of maintenance it should be determined what is the carry home salary of the person concerned so that a reasonable amount for payment may be determined. At the time of determining the carry home salary sums of deduction or expenses incurred by the opposite spouse which are optional may also be taken into consideration. Further it must also be seen whether the optional expenses or deductions were made as a result of the litigation between the parties with a view to deprive the applicant u/s. 24 of the Act. The bona fides of the parties are taken into consideration. There cannot be any hard and fast rule that provident fund and life insurance premium should not be taken into consideration while determining the disposable income. The contribution to Provident fund may be optional or compulsory. Similarly if the amount of life insurance premiums was being paid prior to the disputes between the parties, payment of premium should be taken into consideration and deducted from the gross income to determine the disposable income unless some mala fides are alleged.

(5) Learned counsel for the petitioner submits that according to the report and accounts for the year ending 31.3.80 of I.T.C. Ltd. the gross resume ration paid or payable to the respondent-husband was Rs. 39, 774.00. This fact is not denied by the respondent but he submits that his carry home salary is only Rs. 1137.00 p.m and that a sum of Rs. 400.00 p.m. is deducted by his employer on account of boarding charges. The parties had filed affidavits in support of their respective contentions and both were cross-examined. It is stated that at Madras the respondent-husband was getting Rs. 600.00 p.m. as house rent allowance and that he had not been getting any such allowance at Jammu as accommodation by his employer had been provided in the hotel itself on payment of Rs. 200.00p.m. The respondent in his affidavit has given the break up of Rs. 39, 774.00 mentioned in the I.T.C. Annual Report as under : (...)

(6) This break up appears to be correct but the question is what amount the respondent has been carrying home in fact every month. His case is that Rs.318.00is being deducted at source on account of income-tax and Rs. 160.00 as Provident Fund. It has been submitted by the learned counsel for the respondent that Provident Fund contribution is compulsory u/s 6 of the Employee's Provident Funds Act. 1952. Thus the deductions on account of income-tax and provident fund are compulsory. The respondent also says that he has been paying life insurance premium at Rs. 720.00 p.a. This amount is also not optional. If payment of premium is not made policy may lapse. It is thus a necessary expense. The amount of Rs. 400.00 p.m. deducted on account of boarding 'charges can be included towards disposable income. According to the pay slip and salary certificate the net payable monthly salary is Rs. 1137.00. Adding the sum of Rs. 400.00 on account of boarding charges the monthly disposable income would be Rs. 1537.00 only. The respondent further states that he pays Rs. 350.00 p.m. as maintenance to his parents. The trial court has not accepted his version. Learned counsel for the respondent however submits that the respondent is under an obligation to maintain his parents u/s 125 of the Cr. P.C. Whether any maintenance is paid or not to the parents is immaterial, but he is under an obligation to maintain them if they are unable to maintain themselves. Considering the facts of this case the trial court has rightly determined the monthly maintenance of Rs. 450.00out of the disposable income of Rs. 1537.00. There is no ground to increase the monthly maintenance.

(7) As regards litigation expenses, a sum of Rs. 1000.00 was awarded by the trial court. Learned counsel for the petitioner submits that the wife has to examine witnesses from Madras as prior to transfer both were living there and that to disprove various allegations she is required to produce witnesses from Madras. It is true that witnesses from Madras may be necessary but out of the disposable income Rs. 1537.00 a sum of Rs. 1000.00 as litigation expenses is reasonable. The respondent with the said amount of disposable income cannot be directed to pay more than Rs. 1000.00. The respondent states that he does not physically get any portion of 34% of the consolidated salary on account of retirement benefit, Rs. 175.00 on account of monthly medical allowance, any amount of leave traveling allowance or the bonus. His case is that the yearly gross remuneration may be Rs. 39774.00 incurred by his employers on him as shown in the Annual report for the year ending 313.80 but he is getting Rs.1137.00 only as his net monthly salary besides accommodation for residence and boarding in the hotel. Petition dismissed.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //