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Mahendra Kaur Vs. Darshan Singh - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtRajasthan High Court
Decided On
Case NumberS.B. Civil Revision Petition No. 330 of 1984
Judge
Reported in1987WLN(UC)101
AppellantMahendra Kaur
RespondentDarshan Singh
Excerpt:
hindu marriage act, 1955 - section 24--pendente lite alimony--lower court going into merits of case--held, court should look into income of spouses for purpose of granting interim maintenance.;revision allowed - .....into consideration while fixing the quantum of pendente lite alimony to the other spouse. in the facts and circumstances of the case, the proper course to be adopted by the trial court would have been to fix certain amount as monthly allowance to the wife pending litigation and litigation expenses taking into consideration the income of the husband.5. at the agreement of the parties, it is ordered that darshan singh shall pay rs. 100/- per month to his wife mahendra kaur, as interim alimony from the date of her application under section 24 of the act, i.e., 16-4-1984 till the decision of the petition for restitution of conjugal rights in the trial court. he shall also pay rs. 500/- as litigation expenses to mahendra kaur. at the request of the learned counsel for the non-petitioner,.....
Judgment:

Kanta Bhatnagar, J.

1. Proceedings under Section 9 of the Hindu Marriage Act, 1955 were initiated by the non-petitioner Darshan Singh, against the petitioner Mahendra Kaur, his wife. The latter filed an application under Section 24 of the Hindu Marriage Act, 1955 (here in after to be referred as 'the Act') on 16-4-1984 praying therein that as she has no source of income, her husband should be directed to provide her interim maintenance allowance and expenses for the litigation. Mahendra Kaur supported the contention of the application by swearing in an affidavit of the same date. On 28-5-1984, Darshan Singh filed reply to the application and denied the contention of his wife that he possessed 25 bighas of land in Chak No. 12 CDR, yielding an income of Rs. 60,000/-. He stated that he was possessing only 2 bighas of land in Chak No. 12 CDR and from its income he was maintaining even himself with difficulty. He substantiated his contention regarding the measurement of his land by filing a copy of the entry in the revenue record to that effect. On 20th July, 1984, Darshan Singh filed an affidavit contending therein that Mahendra Kaur was earning by weaving carpets and knitting sweaters and doing emboidery work. The learned Additional District Judge No. 1, Hanumangarh rejected the application by the order impugned in this revision petition. Notice was issued to the non-petitioner Darshan Singh, at the admission stage and Mr. H.S. Sandhu has put in appearance on behalf of Darshan Singh. At the request of the learned Counsel for the parties, the revision petition was heard today for final disposal.

2. The learned Counsel for the petitioner Mahendra Kaur, strenuously contended that the learned trial Judge, while Considering the application under Section 24 of the Act, has legally erred in going into the merits of the case, that is to say whether there was justification for Mahendra Kaur to refuse to live with her husband which the learned Judge should not have done. It has also been contended that there is no specific evidence about the income of the wife so as to discard her prayer. Mr. H.S. Shandu, learned Counsel for the non-petitioner, controverted these contentions on the ground that the learned Judge has rightly arrived at a conclusion that it is very difficult for a person to maintain himself even with a petty income of Rs. 400/-. He has also submitted that his client was ready and willing to keep Mahendra Kaur with him and it was for that reason that the petition for restitution of conjugal rights has been filed.

3. At the very out-set, it may be observed that, while considering the prayer for interim alimony to the spouse who is not in a position to maintain himself or herself and to allow expenses for litigation. The income of both the parties should be taken into account by the Court. In the present case, the learned trial Judge, instead of confinding his fining about the income of the respective parties, has considered the plea of Mahendra Kaur that, her marriage had taken place when she was only a child and, therefore, she did not want to live with her husband. While deciding an application under Section 24 of the Act, the Court, hould not have gone into the merits of the case to find out whether there was any justification or not for the wife to live separate.

4. The learned Judge, in view of the revenue record, which was placed before him, has arrived at a conclusion that the husband was only possessing two bighas of land in Chak No. 12 CDR and estimated his income to be about Rs. 400/- per month. One of the reasons for denying the alimony pendente lite to the wife was that she was earning by weaving carpets and knitting sweaters and doing embrodiary work. It is pertinent to note that the applicant Mahendra Kaur, has come with a specific case that she has no source of income. In his reply filed on 29th May, 1984, Darshan Singh has not mentioned anything about there being any source of income to Mahendra Kaur. It was as late as on 20th July, 1984, that he has vaguely stated in the affidavit that his wife was earning by weaving carpets and knitting sweaters and doing embrodiery work. What was the quantity of work she was doing and what exact or approximate income she was making out of it has not been mentioned. It is important to consider that on the same day the learned Judge passed the impugned order rejecting the application under Section 24 of the Act. This shows that the learned Judge has given undue weight to the vague contentions in the affidavit of the husband regarding the income of the wife, which cannot be said to be justified. It is also relevant to observe that whatever might be the income of a spouse held liable to pay, it should betaken into consideration while fixing the quantum of pendente lite alimony to the other spouse. In the facts and circumstances of the case, the proper course to be adopted by the trial Court would have been to fix certain amount as monthly allowance to the wife pending litigation and litigation expenses taking into consideration the income of the husband.

5. At the agreement of the parties, it is ordered that Darshan Singh shall pay Rs. 100/- per month to his wife Mahendra Kaur, as interim alimony from the date of her application under Section 24 of the Act, i.e., 16-4-1984 till the decision of the petition for restitution of conjugal rights in the trial Court. He shall also pay Rs. 500/- as litigation expenses to Mahendra Kaur. At the request of the learned Counsel for the non-petitioner, Darshan Singh, two month's period is allowed to him to pay the arrears of the maintenance allowance and the litigation expenses in the trial Court. The monthly allowance onwards would be paid on or before 15th of each succeeding months. Costs of this revision petition are made easy.


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