D.P. Wadhwa, J.
(1) This is the wife's petition. She seeks revision of the order dated 30/11/1985 of the Additional District Judge, Delhi, dismissing her application filed under Section 24 of the Hindu Marriage Act, 1955 (for short 'the Act'). This application the wife filed in a proceeding for dissolution of marriage filed by her husband (respondent now before me) on the ground of cruelty.
(2) Both parties were married in accordance with Hindu rites at New Delhi on 10/10/1982. The wife is a citizen of the United States of America (U.S.A.) though born in India. The husband at the relevant time was and even now is a lecturer in a college affiliated to Delhi University. After about one and a half month's stay in India the wife left for the U.S.A. She gave birth to a child, a daughter, on 27/8/1983 there. The petition for dissolution of marriage was filed by the husband in the court of the District Judge, Delhi, on 15/5/1984. For the purpose of this petition, I need not go into various imputations made by the husband against his wife as till now she has not filed her written statement. She, however, filed an application under Section 24 of the Act on 14/8/1984 but due to certain technical defect withdrew the same and filed another such application on 1/10/1984. At the time of her marriage the wife was working as a Data Coder Operator and was earning Us $215 per week. She, however, said that on account of her stay in India she had to lose that job. She said she had spent all her savings on her visits to India and also on the air ticket purchased by her for her husband who had also visited the U.S.A. She said she was unemployed and was not having any income and that she was only getting Us $ 250 per month from the Government of U.S.A. as social security/unemployed allowance which amount was payable only if she stayed in U.S.A. She said the respondent was drawing a salary of Rs. 3,000.00 per month, was living with his parents in their house and had no liability. She, thereforee, claimed Rs. 1,500.00 per month as maintenance charges for her and for the child. She further claimed Rs. 3,500.00 towards litigation expenses and another sum of Rs. 14,000.00 to enable her to visit India for the proper defense of the case filed by her husband.
(3) The husband denied his liability to pay and said that the wife was possessed of sufficient funds. He said at the time of marriage, the wife had informed the authorities that she was having annual income of Us $11,856 and was having a Savings Bank Account in U.S.A. and was also possessed of joint accounts of about Us $ 70,000 in the form of personal property with a life insurance of nearly Us $ 20,000. The husband said this information was contained in the affidavit of wife dated 18/10/1982. He also said that wife was having a plot of land measuring 100 sq. yds. in Pitampura in the Union Territory of Delhi. He also said that the amount of Us $ 250 per month, which the wife was getting from the Government of U.S.A., was sufficient for her needs. He also said there was no need for the wife to come to India to contest the petition for dissolution of marriage filed by him and that she could communicate instructions to her counsel while in U.S.A. The husband brought on record his salary certificate which is dated 13/3/85. During the course of arguments before me, it was contended that after the last Pay Commission there had been upward revision in the salary of the husband. I asked the husband to file his latest salary certificate, but this was not done.
(4) The wife in her rejoinder has explained how she came about to give the affidavit which was referred to by the husband. She said this was basically to sponsor the husband to come to U.S.A. She referred to the contributions made by her brother S. K. Kaira also based in U.S.A. and she said that the property and account, in fact, belonged to him and she was merely associated so that she could sponsor the husband to come to U.S.A. Wife also pointed out that for suaa? time she was also granted total assistance of Us $ 448 (US $ 340 for apartment rent and Us $ 108 for rest) from Aid to Families with Dependent Children (AFDC) effective from April 1985. She also said that in the months of February and March 1985 she was granted only Us $ 1.08 for each month. Certain documents were also brought on record to show as to what welfare assistance wife was getting.
(5) The Additional District Judge came to the conclusion that net income of the husband every month was not less than Rs. 2,000.00. He, however referred to the aid being received by the wife and calculated that the amount of grant would be equivalent to more than Rs. 6,000.00 per month and after deducting the house rent, utility and food, her assistance would be equivalent to Rs. 1,500.00 per month. He rejected the contention of the wife that grant received by her was not her income or, in any case, her independent income as the amount was received by her under social security scheme on account of the facie that the husband had failed to maintain her and the child. The learned Judge observed that wile was a citizen of U.S.A. and she as a matter of right was entitled to avail the benefits under the social security scheme of that country on account of the fact that she was not having any independent source to maintain herself and the child. Since the wife was getting enough money for her maintenance and support and that of the child, it was held that she was not entitled to claim any maintenance pendente lite or expenses of the proceedings. Reference was also made, but without comments, to the affidavit of the wife dated 18/10/1982 wherein the wife had shown her personal assets to the extent of Us $ 70,000 and life insurance policy of Us $ 20,000 and also the fact of ';er owning a plot of land measuring 100 sq. yds. in Delhi.
(6) Before me an affidavit has been filed by the wife slating that since 12/8/1987 she has got employment and she would not claim for herself anything towards maintenance but that she would claim for the child who was now school going. It was mentioned that her school fees, food transportation expenses, medical expenses, clothing, etc. were around Us $ 600 which included Us $ 240- for her tuition and school fees but excluding transportation. She, however, did not mention as to what amount she was now getting as her salary.
(7) The main question that arises in this petition is whether the court could have taken into consideration the social security benefit enjoyed by the wife in the U.S.A. when determining maintenance pendente lite and expenses of the proceedings. In India there is no such system for grant of social security benefit by the State. In U.S.A. and the United Kingdom (U.K.), there are various expressions and nomenclatures to describe this type of benefit as national assistance, social security, public assistance, welfare assistance, Afdc and the like, (dole' colloquialiy). In U.K. this type of benefit is now knows as supplementary benefit. Reference may be mane to the statement of law on the question posed above, in Rayden and Jackson on Divorce, which leads as under :-
'40,Supplementary benefits. The receipt of supplementary benefit by the wife may be considered but the fact that the result of an order of the court in favor of a wife is likely to be that the wife will not ultimately gain thereby is wholly irrelevant to the question of the amount the husband should be ordered to pay as maintenance, and as the amount of supplementary benefit received by the wife is usually abated by the amount of the order when made, the effect of such abatement would be to change the circumstances on which the order had been based. There is no general principle that a man in receipt of supplementary benefit should not be ordered to pay maintenance, but the court cannot ignore this fact or the fact that the Supplementary Benefits Commission are content to treat him as a proper case for the payment of the benefit. It has been said that an order should not reduce the husband's income below subsistence level. Where both parties are in receipt of social security and supplementary benefits it has to be assumed that there is at least a serious probability and there will be no margin between the level of subsistence and the amount of the supplementary benefit to justify the making of a substantial order unless there are circumstances in the case which suggest that this is so, and in the absence of some such circumstances the proper conclusion is that there is no such margin.'
The para no doubt appears in the section dealing with financial relief after the decree of divorce, but the principles are same while awarding financial relief pending suit (see p3ge 830)
(8) This very question in John Eekelaar on Family Law and Social Policy has been answered as under :-
'THIS fact that a claimant wife is in receipt of supplementary benefit poses a difficult problem when assessing how much the husband should pay. If the court takes that fact into account and imposes a lesser burden on the husband than it would otherwise do, he and his new dependants (if any) benefit indirectly from the state payment. In principle the courts will not allow this. In Barnes v. Barnes 1972 (3) All. E.R. 872. Russell L.J. said that it would be 'quite wrong to say that the existence of social security benefits either enables, or entitles, a husband to throw on to social security the burden which he ought himself to bear, consistently with being left himself with a proper standard'. However, the concluding phrase is significant. It recognizes that there is nothing to be gained by putting upon the husband a burden which will reduce him, also, to subsistence level. If that would happen, the courts will make a smaller order against the husband, knowing that the wife will in any case receive social security payments. But outside those extreme limits, the practice of the courts is unclear......'.
The statement of law on this question in The Law and Practice in Divorce and Matrimonial Causes by William Latey, is as under :-
'NATIONAL assistance (now styled supplementary benefit) received by a wife was not accepted as reducing the liability of the husband to pay maintenance. In practice the Supplementary Benefit Commission took into account the maintenance paid in giving the wife relief.'
In Campbell v. Campbell 1977(1) All. E.R. I, Sir George Baker P. asked himself, 'why should the public (social security) keep the husband's ex-wife, whom he, not the public, married, rather than that he should make his fair and proper contribution, whatever the effect may be on him In Peacock v. Peacock 1984(1) All. E.R. 1069, the following was the argument:-
'MR.Burrows on the wife's behalf accepts that no order that this court could make against the husband is going to benefit the wife. The only benefit will be to the taxpayers through the Department of Health and Social Security. The department itself is not urging the wife to make an application, but I am told that it is a matter of concern to practitioners generally that there is a divergence of view whether, in circumstances such as these, an order should be made by the court where it concerns only maintenance pending suit and interim periodical payments for the children, so that it is an order which is not expected to subsist for very long. The question is whether the court should disregard the position with regard to supplementary benefit, and on an application by a wife (or, indeed, by a husband) should make orders on the figures following the usual course of assessment.'
Booth, J., observed as under :-
'THERE is no authority precisely on this point ; but it seems to me, and indeed both Mr. Burrows for the wife and counsel for the husband agree, that the principles on which the court has to act with regard to supplementary benefit must be the same for applications for maintenance pending suit and interim periodical payments as they are for what are called final orders, that is full periodical payments' orders either for a spouse or for children. It seems to me that there is no reason in principle why the court should have a different approach with regard to the former than it does to the latter. It is established law, as I understand it, that the fact the wife is receiving supplementary benefit and any order that the court can make will not assist her or place her outside the supplementary benefit bricket is, in the main, not a relevant matter to which the court should have regard. The fact that the wife is receiving supplementary benefit may be taken into account in assessing maintenance pending suit, or, indeed, the periodical payments. It is a matter for the court to have regard to in its discretion. But the general principle is that the quantum of any order should be assessed, in circumstances such as these, on what the husband on his income can reasonably afford to pay, having regard to his needs and to his obligations, and of course in cases which concern maintenance after a decree, having regard to all matters to which the court must have regard under section 25 of the 1973 Act.'
It was, thereforee, held that the approach of the Registrar that any order that he could make would not benefit the wife and that, thereforee, there was no point in making the order was incorrect. Reference may also be made to the Supplementary Benefits Act. 1976 of U K. For the purpose of this Act, a man shall be liable to maintain his wife and his children and a woman shall also be liable to maintain her husband and her children. This Act, provides for recovery of expenditure on supplementary benefits from the persons liable for maintenance. This would appear to be something like claim for necessaries supplied : (see Chapter V of the Indian Control Act, 1872 dealing with certain relations resembling those created by contract Sections 68,69). It could be argued that in the present case wife was entitled to be maintained by the husband who was as well bound to maintain the child ; (see Sections 18 and 20 of the Hindu Adoptions and Maintenance Act, 1956).
(9) The petitioner has brought on record certain instructions and forms relating to grant of AFDC. These pertain to the State of California in Usa, Afdc is a Government assistance programme for families with children who are needy. Conditions are quite strict for grant of Afdc, A person claiming Afdc has to fill in certain form every month called the Monthly Eligibility Report giving full particulars of his income and expenses and to furnish their proof. For giving wrong information penalties are provided. Non-submission of the form may result in benefit being lowered or stopped or allowed late. Requirements of Afdc programme are set by State and Federal Laws and Regulations. An adult who is not ill or who does not have a child under 6 years of age must register for work and look for a job. It may, thereforee, appear that the ability of the wife to earn would be quite relevant. This would be so considering that the economic emancipation of women had effected a vital change in regard to their earning faculties.
(10) Yet another question that would arise is if rules of foreign law on the subject of grant of maintenance and Afdc and supplementary benefit would apply in this country. In these days of international participation or the comity of nations as the terms goes (the term no doubt criticised in Cheshire and North ; Private International Law, 11th Edition, at page 4, but defined in the Concise Oxford Dictionary as 'friendly recognition as far as practicable of each other's laws and usages'), it would appear to be rather difficult and even not proper to disregard the rules applicable in the foreign countries merely on the ground that there is no such provision of social security benefit prevailing in this country It means, no doubt treading into the filed of private international law. I think, to do justice between the parties, it is necessary for the court in each case to examine the grant of social security benefits in a foreign country and the rules of law with reference thereto. The question that is before me is likely to crop up in a number of cases and a wife and a child living in a foreign country can well be deprived of maintenance on the ground that she is entitled to social security benefit in that country. Now, if a wife is being paid social security benefit or supplementary benefit as the case may be, the amount could be recovered from the husband if he was in that country because after all it was the duty of the husband to maintain his wife and the child if they had no independent income sufficient for their support and the necessary expenses of the proceedings, State funding of social security programme is at the cost of tax payers' money. If the husband is in that country where the wife is also living be can be burdened with expenses which the State is incurring for payment of social security benefit to his wife and child. Merely because husband is living in this country and the Government of a foreign country does not or is unable to enforce a claim against the husband, which it could have done in its own country, there is no reason why the husband living in this country should escape his responsibility and obligation imposed upon him under the law. I would, thereforee, say that in the present case the supplementary benefit or social security benefit conferred on a spouse in a foreign country should not be taken into consideration while deciding the application under Section 24 of the Act. Whatever amount is awarded to the spouse under this section, to that extent the social security benefit or supplementary benefit would abate, subject, however, to the condition that the balance of the income of the spouse in this country should not be less than the standard laid (not the amount) for grant of social security benefit or supplementary benefit allowable to the spouse in the foreign country. This would also be further subject to the condition that the claim of the spouse in this country as regards his expenses, is taken into account.
(11) I would, thereforee, hold that the Additional District Judge was not correct in taking into account the award of Afdc to the wife. The impugned order is set aside. The matter will go back to the Trial Court for a fresh decision keeping in view the principles laid down above. Parties will be entitled to place on record further documents and also to be beard again. In the circumstances of the case, there will, however, be no order as to costs.