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Dhirajben Prabhudas Parmar Vs. Rameshchandra Shambhulal Yadav - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtGujarat High Court
Decided On
Case NumberCivil Revn. Appln. No. 2050 of 1982
Judge
Reported inAIR1983Guj215; (1983)2GLR860
ActsHindu Marriage Act, 1955 - Sections 24; Indian Divorce Act, 1869 - Sections 36
AppellantDhirajben Prabhudas Parmar
RespondentRameshchandra Shambhulal Yadav
Appellant Advocate P.V. Hathi and; J.K. Patel, Advs.
Respondent Advocate J.M. Patel, Adv.
DispositionPetition partly allowed
Cases ReferredIn Dinesh Mehta v. Smt. Usha Dinesh Mehta (supra
Excerpt:
- - usha dinesh mehta, air1979 bom 173, has disapproved this ruleof thumb of 1/5th portion of the incomeof the husband, and dissented from thedecisions in mukan kunwar v......made by thelearned trial judge by considering therule of 1/5th of the income of the hus-band in awarding maintenance to thewife is not justified. 8. in this case the learned trial judgehas not only divided the income of the husband by '5', but from that income he first deducted rs. 500/- for parents and then divided the remaining amount of rs. 1,400/- by '5' to arrive at the figure of rs. 280/- as 1/5th of that amount of rs. 1,400/-. this is certainly not proper. in dinesh mehta v. smt. usha dinesh mehta (supra), the total income was rs. 2,220/- per month, being rs. 1,500/-of the father of the husband and rs. 720/-of the husband. the bombay high court considered that in the family of the father of the husband where he was staying as a member, there were five members, i. e. the father,.....
Judgment:
ORDER

V.V. Bedarkar, J.

1. This is a revision petition filed by the petitioner-wife who is dissatisfied by the order of the learned Fourth Extra Assistant Judge, Baroda, D/- 27-8-1982, awarding her maintenance at the rate of Rs. 280/- per month instead of Rs. 500/- per month claimed, and the amount of Rs. 800/- towards the costs or quantum of expenses instead of Rupees 1,500/- claimed.

2. The opponent-husband has filed a petition under the Hindu Marriage Act for restitution of conjugal rights. After the summons was served, the wife appeared and gave application Ex. 9 for interim maintenance or alimony pendente life, wherein she made the claim referred to above. It was her contention that she has no independent income of hers, while her husband was serving in I.P.C.L. as Medical Officer with a pay of Rs. 2,500/- per month, and that he was also doing private practice. This application was opposed by the opponent-husband by Ex. 14.

3. After considering the relevant contentions, the learned trial Judge came to the conclusion that the evidence shows that the income of the husband was Rs. 1,905/- per month. But he considered that from this income of Rs. 1,900/-, Rs. 500/- should be deducted for the parents and so Rs. 1,400/- remained. So, 1/5th of that income of the husband, i. e. Rs. 280/- per month, would be available to the petitioner-wife, as according to him, ordinarily this standard is adopted by some of the High Courts of our country while deciding the quantum of maintenance.

4. xxxxx

5. It must be stated that this rule of thumb, as far as 1/5th of the amount of income is concerned, has no reasonable basis except following the provisions ofIndian Divorce Act 1869. Whenever Courts award even interim alimony, social status of the parties, earnings of the husband who has to pay maintenance, liability of the wife, require (sic) of particular treatment, etc. all are to be considered while awarding interim alimony or even at the time of passing the final order of maintenance.

6. Section 24, Hindu Marriage Act 1955, speaks of fixing a reasonable amount, and that reasonableness has to be considered from some of the factors mentioned above and also other factors which may crop up in a peculiar case. Along with that, the Court also should not ignore the legal obligations of the husband to earn and maintain the wife. It should not be forgotten that there may be obligations of the husband to maintain other members of his family, and the Court cannot overlook them even though they may not be legal obligations. Court has also to see whether the wife is earning so that the husband may not be saddled with the expenses and ultimately the Court will pass the order considering all the aforesaid relevant factors. For considering those factors, there cannot be any specific formula which will be available in all cases, but each case will depend on its particular set of circumstances. Therefore, this rule of thumb of l/5th cannot be applied in all cases and should not be encouraged also.

7. The Bombay High Court in DineshMehta v. Smt. Usha Dinesh Mehta, AIR1979 Bom 173, has disapproved this ruleof thumb of 1/5th portion of the incomeof the husband, and dissented from thedecisions in Mukan Kunwar v. Ajeet-chand, AIR 1958 Raj 322, Prasana Kumarv. Sureswari, AIR 1969 Orissa 12 andSmt. Sushila Devi v. Dhani Ram, AIR1965 Him Pra 12. The Bombay HighCourt rightly observed that there is norational basis for this rule which prevents the wife from claiming more than1/5th, even when her needs, and capacityof the husband, warrant awarding largeramount. I fully agree with these observations of the Bombay High Court and Iam inclined to follow that decision andhold that the calculation made by thelearned trial Judge by considering therule of 1/5th of the income of the hus-band in awarding maintenance to thewife is not justified.

8. In this case the learned trial Judgehas not only divided the income of the husband by '5', but from that income he first deducted Rs. 500/- for parents and then divided the remaining amount of Rs. 1,400/- by '5' to arrive at the figure of Rs. 280/- as 1/5th of that amount of Rs. 1,400/-. This is certainly not proper. In Dinesh Mehta v. Smt. Usha Dinesh Mehta (supra), the total income was Rs. 2,220/- per month, being Rs. 1,500/-of the father of the husband and Rs. 720/-of the husband. The Bombay High Court considered that in the family of the father of the husband where he was staying as a member, there were five members, i. e. the father, mother, brother, sister and the husband himself. The wife was staying as a member of the said family till she left or was compelled to leave the same. So. the aforesaid amount was divided by '6' and it was considered that the amount would come to Rs. 370/-, and the amount of Rupees 350/- per month awarded was quite justified. In the instant case, if this rule is applied, though I would venture to say that this rule is not an inflexible formula or rule and it is not necessary that it should be applied in all cases, because sometime the family of the husband may be large and the wife may be obliged to take a small share; in such a case this rule also cannot be said to be universally applicable. At any rate, considering the claim of the husband in this case, as stated earlier, the family consisted of himself, his wife and parents, i. e. four persons. So, if the income of Rs. 1,900/- is divided by '4', then the wife would be entitled to an amount of Rs. 475/- per month, and this should have been awarded. Now, the wife is getting an amount of Rs. 150/- per month as per the order of the Criminal Court. In this matter she will be entitled to an amount of Rs. 325/- per month as alimony pendente lite instead of an amount of Rs. 280/- per month as awarded by the trial Court.

9. xxxxx

10. In the result, the revision petition is partly allowed. The petitioner-wife will be entitled to claim Rs. 325/- per month from the opponent-husband towards maintenance instead of Rs. 280/-. per month as awarded by the learned trial Judge. The order of the learned trial Judge awarding an amount of Rs. 800/- to the wife towards expenses is maintained. Rule is modified with costs.


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