S. Ravindra Bhat, J.
1. In this appeal under Section 28 of the Hindu Marriage Act (the Act), maintenance awarded by an order dated 6.7.1999 passed by the learned Additional District Judge on an application filed under Sections 24 and 26 of the Act, has been questioned.
2. The facts necessary for deciding this appeal are that the respondent who was married to the petitioner, had preferred proceedings for dissolution of marriage on the ground of cruelty. The proceedings were decreed by an order dated 5.8.1999. That order/decree is under challenge in a separate appeal, namely, FAO 351/1999. By order dated 5.8.1999, the appeal was admitted and the judgment and decree of the trial court was stayed.
3. In the meanwhile, by way of final order on the appellant's application under Sections 24 and 26, the impugned order was passed on 6.7.1999.
4. It is common case of the parties that the appellant is taking care of the two children born out of the wedlock. They resides with him. The elder child is a daughter who has now attained majority; she studying in college. The second child is a minor son aged 17 who is pursuing his senior secondary education.
5. The material portion of the impugned order which, inter alia, noted that the respondent's salary was Rs. 16,000/- per month (The basic salary Rs. 6285/- per month with a income tax liability of Rs. 1000/- per month) reads as follows:
Taking into consideration his statement and also considering the permissible deductions towards P. Fund and I.Tax etc., I am of the view that carry home salary of the petitioner/husband can not be more than Rs. 11,000/- per month. considering the fact that he has not been permitted by the applicant/wife to live in the house which was purchased by his mother and other circumstances of the case and the conduct of the respondent throughout the proceedings, I am of the opinion that interest of justice will be met if the respondent is allowed maintenance @ Rs. 3500/- p.m. instead of Rs. 2000/- p.m. with effect from the date of her application, considering the fact that the two children from the wedlock are residing with her. The application is disposed of with the aforesaid directions. However, the petitioner/husband is directed to make payment in terms of the aforesaid order, including the arrears within one month from today.
6. Learned counsel submitted that having regard to rise in prices and and the overall fall in the value of the rupee, the amount granted by the trial court was not realistic. It was also submitted that having regard to the fact that the children's education had to be financed by the appellant since they are residing with her and also that the appellant has to ensure that the children are properly fed and clothed, the amount of Rs. 3500/- is woefully inadequate. Counsel for the appellant characterized the impugned order as bereft of reasoning, and funded on irrelevancies. It was submitted that even if the assertion about the respondent earning Rs. 16,000/- were to be accepted, the grant of a mere Rs. 3500/- per month for the appellant, and her two growing children, was grossly inadequate; it was less than a fourth of the respondent's declared income.
7. Learned counsel for the appellant also submitted that on account of want of adequate finances, the children are likely in proper care and nutrition. It was submitted that the appellant's daughter is suffering from Anemia. Learned counsel for the appellant also submitted that the present level of the respondent is far higher than what it stood when the impugned order was passed. It was claimed that the respondent is drawing more than 22,000/- per month.
8. Learned counsel for the respondent did not dispute the assertion that the monthly salary of the respondent was about Rs. 22,000/-. He, however, relied upon a salary statement, issued in respect of September 2005. As per the said statement, the gross monthly income of the appellant's husband was Rs. 22,695/-. The deduction indicated in respect of the income tax for the month was Rs. 26,000/-. Learned counsel also pointed out that apart from the income tax, there were other deductions towards provident fund, additional provident fund and deduction in respect of house rent, electricity etc.
9. Learned counsel submitted that the respondent himself is not in a happy or sound financial condition because with his net income of Rs. 9500/-, he is under an obligation to look after his aged parents. It was submitted that the respondent made no attempts to recover possession of the house which is occupied by the appellant and such occupation was a factor taken into consideration by the trial court while fixing the maintenance at Rs. 3,500/-.
10. The materials on record disclose that during the pendency of proceedings before the trial court, initiated by the respondent initially an amount of Rs. 2000/- per month was fixed at ad interim maintenance. That stood enhanced after the final decree of the trial court in the proceedings for divorce.
11. Although, it has been noted in some judgments that the expression 'maintenance' itself had not been defined and perhaps advisedly so, however, in its widely understood sense the factors or elements which go into a determination in proceedings as to who could constitute maintenance are necessarily subjective to the case. There can be thumb rule as to the amount to be paid or the percentage which can be fixed in relation to one's housing income or the other.
12. In Smt. Jasbir Kaur Sehgal v. District Judge, Dehradun and Ors. : AIR1997SC3397 , the Supreme Court held as follows:
No set formula can be laid for fixing the amount of maintenance. It has, in very nature of things, to depend on the facts and circumstances of each case. Some scope for leverage can, however, be always there. Court has to consider the status of the parties, their respective needs, capacity of the husband to pay having regard to his reasonable expenses for his own maintenance and those he is obliged under the law and statutory but involuntary payments or deductions. Amount of maintenance fixed for the wife should be such as she can live in reasonable comfort considering her status and the mode of life she was used to when she lived with her husband.
13. In the subsequent decision of the Supreme Court, reported as Padmja Sharma v. Ratan Lal Sharma : 2SCR621 , the Court, commenting on the absence of a definition of 'maintenance' and the need to consider all cognate enactments while adjudicating on the issue, held as follows:
10. Maintenance has not been defined in the Act or between the parents whose duty it is to maintain the children. Hindu Marriage Act, 1955, Hindu Minority and Guardianship Act, 1956, Hindu Adoptions and Maintenance Act, 1956 and Hindu Succession Act, 1956 constitute a law in a coded form for the Hindus. Unless there is anything repugnant to the context definition of a particular word could be lifted from any of the four Acts constituting the law to interpret a certain provision. All these Act are to be read in conjunction with one another and interpreted accordingly. We can, thereforee, go to Hindu Adoption and Maintenance Act, 1956 (for short the 'Maintenance Act') to understand the meaning of the 'maintenance'. In clause (b) of Section 3 of this Act 'maintenance includes (i) and in all cases, provisions for food, clothing, residence, education and medical attendance and treatment; (ii) in the case of an unmarried daughter also the reasonable expenses of and incident to her marriage' and under clause (c)'minor means a person who has not completed his or her age of eighteen years'. Under Section 18 of the Maintenance Act a Hindu wife shall be entitled to be maintained by her husband during her life time. This is of course subject to certain conditions with which we are not concerned. Section 20 provides for maintenance of children and aged parents. Under this Section a Hindu is bound, during his or her life time, to maintain his or her children. A minor child so long as he is minor can claim maintenance from his or her father or mother. Section 20 is, thereforee to be contrasted with Section 18. Under this Section it is as much the obligation of the father to maintain a minor child as that of the mother.
14. In this case, the appellant admittedly is not having any source of income. She is 44 years of age. In addition to maintaining herself, she has to support her two children born out of the wedlock who are residing with her. In proceedings for grant of maintenance, the reasonable expenses for the sustenance of the applying spouse, and also the expenses necessary for the care, maintenance and education of the children (of the wedlock) living with her constitute important factors which the Court cannot ignore. One of the children that is the daughter has become an adult. Nevertheless, she continues to be dependent on her parents and resides with the mother. She is pursuing her higher education and is studying in the final year in a degree course. The son is in the Xth standard. It was submitted during the course of the hearing that on account of neglect and lack of finances, the studies of both the children have been adversely affected and the son's academic performance is very poor.
15. I have seen the salary slip produced during the course of hearing; it is taken on record. I have also gone through the salary slip for the year 1999; that said document pertain to the month of September. As per the said salary statement, the gross salary of the respondent was Rs. 15627/- and the total net salary after deduction was Rs. 10448.52. At that stage, certain amounts were outstanding. A comparison of the said salary statement with what has been produced today would disclose that the respondent had increased the amounts payable towards provident fund and additional provident fund. On the other hand, the deductions towards loans outstanding has practically vanished. The only loan shown in the salary slip disclosed to the Court for September, 2005, is a sum of Rs. 5200/-. A close look at the salary slip produced today shows that the net salary is Rs. 13,173/-.
16. During the course of the hearing learned Counsel for the respondent stated that the respondent would be willing to increase the maintenance payable to the appellant by Rs. 3000 so that the total sum to be paid is Rs. 6500/-. This was unacceptable to the appellant, who claims Rs. 10,000/- per month.
17. The Trial Court, in my opinion, made no attempt to analyze the above facts it merely considered one factor, i.e. the residence of the appellant in the disputed premises, which are claimed by the appellant's mother in civil proceedings. Even while noting that the respondent was drawing Rs. 16000/- as monthly emoluments, the impugned judgment is unreasoned so far as the needs of the appellant for her reasonable upkeep, and the reasonable needs of two growing children. The court could not have ignored the obligation of the respondent as a parent, upon whom the children were (and continue to be) entirely dependent, since the appellant was not employed, and had no means to support herself. The overwhelming weight attached to what perhaps at best could be one factor, the residence of the appellant, ought not have clouded the Court's approach in appreciating the facts in the proper perspective, as unfortunately happened in this case.
18. A careful analysis of the evidence on record shows that the needs of the appellant have increased, in that she has to spent more for the proper maintenance and care of her children who are with her. It is also a matter of common knowledge that in the intervening 7 years prices of all the essential commodities have doubled if not reached a higher level. This reality is reflected from the increased levels of income of the respondent. Admittedly, his gross income has reached the level of Rs. 22,695/- in September 2005. It is stated that the respondent is about 50 years. It is not disputed that he is working in a Public Sector Enterprises and, thereforee, his date of retirement would be 60 years. Having taken into consideration of the above facts, I am of the opinion that the ex facie the income level of the respondent has gone up by at least 7000. In addition, one important and significant factor which cannot be ignored is that his liability has come down. Earlier in the pay slip which was produced in the year 1999, the deductions effected from his salary towards provident fund (which are of voluntary character) were much lower than what is being effected now. This would imply that the respondent has a far more disposable income with him. Keeping all these factors into consideration, I am of the opinion that the appeal deserves to be allowed. The impugned order is accordingly set aside, and the direction to pay Rs. 3500/- per month would be substituted (subject to the directions made hereafter) to Rs. 10,000/- per month.
19. Having regard to the fact that this appeal for enhancement was pending consideration for seven years and could not be taken up all this while, and the further circumstance that a consideration which has lead to enhancement of the amount is the increase in prices and cost of living, during the interregnum and the peculiar circumstances of the appellant due to the intervening delay, I am of the opinion that the direction to pay Rs. 10,000/- should not be operated from 6.7.1999. The following directions are issued:
i) The impugned order so far as it directs payment of Rs. 3,500/- per month w.e.f. 6.7.1999 shall stand substituted. For the period 1.8.1999 to 1.8.2002 the respondent shall pay an amount of Rs. 7000/-;
ii) For the period 1.9.2002 to 31.8.2004 the respondent shall pay an amount of Rs. 8,500/- per month and from 1.9.2004 till date, the direction shall be substituted to pay Rs. 10,000/-.
iii) The amounts directed as per para (i) and (ii) above shall be paid to the appellant within six months from today after adjusting the amounts paid consequent to the trial court's direction, i.e. Rs. 3500/- per month;
iv) The respondent shall pay the amounts as directed towards maintenance for future periods by 10th of every month each w.e.f. 1.8.2006;
v) The respondent shall ensure that the arrears as per the above directions are paid to the appellant within six months from today;
vi) An undertaking to make payments, and comply with the above direction, shall be filed by the respondent in this Court within two weeks.
20. The appeal is allowed in terms of the above directions, and the order and decree under appeal, shall stand modified accordingly. No costs.