Skip to content


D. Thankaraj Vs. Smt. M.C. Pushpa Rose - Court Judgment

LegalCrystal Citation
SubjectFamily;Civil
CourtKerala High Court
Decided On
Case NumberC.R.P. No. 176 of 1985E
Judge
Reported inAIR1986Ker23
ActsDivorce Act, 1869 - Sections 36
AppellantD. Thankaraj
RespondentSmt. M.C. Pushpa Rose
Appellant Advocate Siby Mathew, Adv.
Respondent Advocate P. Sukumaran Nair, Adv.
DispositionRevision dismissed
Cases ReferredIn T. N. Kuriakose v. Mrs. Leelie
Excerpt:
.....and needs of wife in fixing quantum of maintenance - prescribed ceiling for quantum is one-fifth of husband's average net income for three years next preceding date of order - no infirmity in calculating alimony - petition dismissed. - - the court, on being satisfied of the truth of the statements therein contained, may make such order on the husband for payment to the wife of alimony pending the suit as it may deem fit. they cannot be equated with compulsory deductions like income-tax or contribution to compulsory provident fund. sudhir kumar (1974) 76 punj lr 195, also arising under the provisions of the hindu marriage act, the court held that in arriving at the disposable income of the husband deduction can be given only to such items of expenses over which he has no..........act have been placed before me. in lobo v. lobo air 1939 cal 753 it was held that 'net income' means income after allowing for the cost of collection, payment of income-tax and similar deductions. in t. n. kuriakose v. mrs. leelie air 1958 mad 340 it was held that deductions of income-tax and contribution to provident fund have to be taken into consideration. other deductions cannot be allowed.13. as i have already indicated, once it is shown that the husband has income, it should not be left to him to so arrange his affairs that there will be practically no net income left to meet the needs of the wife. where income is derived from a position, job or business, naturally he has to incur some expenses in connection with such position, job or business. only such expenses can be.....
Judgment:
ORDER

J.L. Bhat, J.

1. Respondent is the wife of the petitioner. Parties are Nadar Christians governed by the provisions of the Divorce Act (for short 'the Act')- Respondent filed O. P. 25/84 seeking a decree for judicial separation under Sec. 23 of the Act. O. P. was filed on 8-2-1984 and the summons was served on the husband on 28-5-1984. Pending O. P., wife filed an application seeking an order of alimony pendente lite. The application was opposed by the husband who but was allowed by the Court directing the husband to pay alimony at the rate of Rs. 140/- per month from the date of service of summons on the husband. It is this order which is now challenged in revision.

2. Parties raised conflicting pleas regarding each other's means. On the evidence placed before him, the learned District Judge held that the wife has no means to maintain herself, that the husband derives a net income of Rs. 600/- per annum from immovable property and pay and allowances to the extent of Rs. 668/- per month as seen in Ext. B1 out of which allowance was given for Rs. 10/- per month deducted by way of subscription to L. I. C. thus, total net income was estimated at Rs. 708/-. Parties have a child aged 31/2 years attending nursery school. Considering all the circumstances of the case, the District Judge fixed the quantum of alimony at Rs. 140/- which is slightly less than the ceiling of twenty per cent fixed, under Sec. 36 of the Act.

3. The only contention urged at the Bar by learned counsel for the revision petitioner is that in estimating the net income from salary, the learned District Judge erred in not giving deduction for a sum of Rs. 400/- p. m. being deducted for payment in respect of a house construction loan. Ext. B1 salary certificate does not refer to any such deduction. The husband examined as R. W. 1 made it clear that there is no deduction as such on this account. According to him, he had taken a loan from a co-operative society and has to pay instalments monthly. This is contrary to what he stated in his counter to the effect that this amount is deducted at source from his salary. This is a fact which could have been proved by producing satisfactory documentary evidence. No such evidence was produced. In these circumstances, the question of allowing any such deduction does not arise.

4. According to learned counsel for the respondent, even assuming that there is any -such deduction or liability it is not liable to be taken into consideration in fixing the net income. Section 36 of the Act deals with alimony pendente lite. It says that in any suit under the Act whether it be instituted by a husband or a wife and whether or not she has obtained an order of protection, the wife may present a petition for alimony pending the suit. Such a petition is to be served on the husband. The Court, on being satisfied of the truth of the statements therein contained, may make such order on the husband for payment to the wife of alimony pending the suit as it may deem fit. Alimony shall in no case exceed one-fifth of the husband's average net income for the three years next preceding the date of the order.

5. Grant of alimony pendente lite is within the judicial discretion of the matrimonial Court. Question of ordering such payment depends on consideration of all the relevant circumstances including the status and mode of life of the parties, their means and the surrounding circumstances. Where it is shown that the wife has no means at all or that her income is not sufficient for her sustenance, it is open to the Court to award alimony pendente lite. Ordinarily, where it is shown that the wife has no means of her own or that her means are inadequate to meet her needs and where the husband has the capacity and ability to provide maintenance, the matrimonial Court will pass. an order in favour of the wife,

6. In fixing the quantum of maintenance, the Court will have to give due weight to all the facts and circumstances, the means of both parties or the lack of it, past life of the parties and their families their mode of living and the needs of the wife. The fact that she is taking care of the child or children and is actually responsible tor them is also a relevant factor to be taken note of.

7. What Section 36 of the Act contemplates is payment of alimony to the wife. Naturally, this must depend on the needs of the wife, the extent to which she is able to meet the needs out of her own resources and the means of the husband. Law, however, prescribes a ceiling for the quantum. Ceiling is one-fifth of the husband's average net income for three years next preceding the date of the order. Naturally, an assessment of net income is necessary for determining the quantum of alimony. But it is more relevant in seeing that the quantum does not exceed the ceiling. The learned Judge has held that the husband derives an income of Rs. 50/- per month from the immovable property. His gross salary per month is Rs. 668/-as admitted in Ext. B1 Ext. B1 shows that Rs. 10/- per month is being deducted by way of subscription to L. I. C, Rs. 35/- by way of recovery of Onam advance and Rs. 118/- by way of recovery of co-operative loan taken by him. In addition, according to the revision petitioner, there is a deduction of Rs. 400/-per month for building loan which I have found against. The learned District Judge has given deduction only to Rs. 10/- being the subscription payable to the L. I. C.

8. 'Net income' would normally mean total income derived less the cost of collection and other compulsory payments such as Income-tax etc. It does not mean net income after giving deduction for all the expenses incurred by the husband. Expenses which are to be deducted must have some relation or connection with the source of income. In the case of a salaried employee, he may be legally compelled to pay tax or contribution to Provident Fund etc. In such a case, there is a legal obligation to make this payment in relation to the income he derives from the job which secures him the salary. Naturally, deductions have to be given for these outgoing in assessing the net income. At the same time, it is open to a salaried employee to contribute more to the Provident Fund than what he is required to do. That is purely a matter of option for him. He may contribute more by way of saving. He might have borrowed moneys for his own purposes and may have to make repayments in lump or instalments. It is only for the purpose of easy collection that arrangements are made for deduction at the source. They cannot be equated with compulsory deductions like Income-tax or contribution to compulsory Provident Fund. They must be treated as voluntary payments made in discharge of voluntary loans. They cannot be treated as deductions over which he has no control of any kind. It is only such deductions which can be taken note of. Otherwise, it would be easy for any husband to opt to allow more deductions than warranted and thereby defeat the claim of his wife. In these circumstances, it is clear that deduction can be made only in regard to compulsory outgoings such as Income-tax or compulsory Provident Fund. Optional deductions cannot be taken into consideration in assessing the net income.

9. Learned counsel for the revision petitioner placed reliance on certain decisions to canvass the position that deduction must be given for the repayment in regard to loan transactions. In Sushama v. Suresh AIR 1982 Delhi 176, a case arising under the provisions of the Hindu Marriage Act, it was held that in arriving at the disposable income, optional deductions may be taken into consideration if they were made bona fide. The Court also observed that there is no hard and fast rule that contributions to Provident Fund and payment of LIC premia should not be taken into consideration. LIC premium being paid before the dispute started, can be taken into consideration unless lack of bona fides is alleged.

10. In Preeti v. Ravind Kr. Sharma AIR 1979 All 29, also a case arising under the provisions of the Hindu Marriage Act, it was held that necessary expenses connected with the job or business which have to be made so that the job or business may continue, have to be given deduction to. If a party has to pay Insurance, Provident Fund or Income-tax, they are necessary expenses which must be deducted.

11. In Usha v. Sudhir Kumar (1974) 76 Punj LR 195, also arising under the provisions of the Hindu Marriage Act, the Court held that in arriving at the disposable income of the husband deduction can be given only to such items of expenses over which he has no control of any kind such as direct taxes like Income-tax etc. No deduction can be given in respect of expenses for running a household, house rent, fuel or water charges, salaries of domestic servants, insurance premium, voluntary savings schemes such as Provident Fund or purchase of National Savings Certificates etc. In that case, deduction in regard to long term loans was not allowed.

12. Two decisions arising under the provisions of the Indian Divorce Act have been placed before me. In Lobo v. Lobo AIR 1939 Cal 753 it was held that 'net income' means income after allowing for the cost of collection, payment of Income-tax and similar deductions. In T. N. Kuriakose v. Mrs. Leelie AIR 1958 Mad 340 it was held that deductions of Income-tax and contribution to Provident Fund have to be taken into consideration. Other deductions cannot be allowed.

13. As I have already indicated, once it is shown that the husband has income, it should not be left to him to so arrange his affairs that there will be practically no net income left to meet the needs of the wife. Where income is derived from a position, job or business, naturally he has to incur some expenses in connection with such position, job or business. Only such expenses can be deducted to arrive at the net income. Payment of Income-tax and payment of compulsory contribution to Provident Fund etc. are such expenses which can be given deduction to. In appropriate cases, premia paid for insurance policies also may be given deduction to. This, of course, would depend on the facts and circumstances of each case. But there is no justification to give deduction to amounts payable in settlement of loans taken by the husband earlier.

14. Decisions of the Delhi, Allahabad and Punjab and Haryana High Courts rested on consideration of the provisions of the Hindu Marriage Act. Decisions of the Calcutta and Madras High Courts considered the provisions of the Indian Divorce Act. It appears to me that the view taken in the latter decisions is correct. Decisions of the Allahabad and Punjab and Haryana High Courts are not completely in favour of the stand taken by the revision petitioner and with great respect I am unable to agree with the view taken by the Delhi High Court.

15. In the circumstances, the learned District Judge was correct in fixing the net income at Rs. 708/- per month. The amount of alimony fixed is slightly less than the ceiling of 20 per cent. Husband has been working as driver in a Municipality. The child is attending a nursery school and the mother, who is in custody of the child, naturally has been incurring expenses of the child, the wife is not shown to have any means of her own. In these circumstances, quantum of alimony fixed at Rs. 140/- per month does not call for interference.

In the result, C.R.P. is dismissed. No costs.


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