P. Rajagopalan, O.C.J.
1. Despite the range of arguments before us and the persistence and bitterness with which these interlocutory proceedings appear to have been fought out, the only modification, which, in our opinion, is called for in the order of Balakrishna Iyer, J., is the reduction of the quantum of alimony pendente lite from Rs. 180 a month which he awarded to Rs. 150 a month to be effective from the date of his order. The appeal will stand dismissed in other respects, but without costs.
2. There was no acceptable evidence that the appellant's wife had any property which yielded any income. The learned Judge found that she had some jewellery, which was certainly not in excess of what a young lady of her status in life could be expected to possess for her personal use, some articles of furniture and household utensils, none of which she could be reasonably expected to sell either to maintain herself during the pendency of the suit or to finance the litigation, to which she had unfortunately committed herself. It is true there was a necklace of hers worth about Rs. 5,000 which was sold by her father ; the learned Judge took that factor into account, but as he pointed out it was not really cash that was as yet available to the respondent.
3. We are unable to accept the extreme contention of the learned Counsel for the appellant that where the wife was shown to have property of her own, there should be no direction that the husband should pay her any amount to meet the costs of the suit. Possession of independent means would no doubt be a relevant factor in deciding whether any such provision should be made. It was taken into account by the learned Judge, and we see no reason to differ from him. The Rs. 1,000 which he ordered the appellant to pay was by no means excessive in the circumstances of this case.
4. The learned Judge recorded in effect that during the arguments before him it was conceded that what the wife claimed was true, that the average monthly salary during the relevant period, three years before the date of the order, was Rs. 900. We do not feel called upon to embark upon a fresh investigation of the question of what was the gross average salary of the appellant. He has recently had a rise in his salary. Rs. 900 was the gross average salary. Unfortunately the learned Judge appears to have overlooked that factor; the proviso to Section 36 of the Indian Divorce Act prescribes one-fifth of the net average income as the permissible maximum. What the appellant has to pay as income-tax and towards contribution to the Provident Fund will have to be deducted to arrive at the net salary, but not the other deductions claimed by the appellant. The sum of Rs. 150 a month is a little below that maximum of one-fifth of the net salary, computed on the lines mentioned above. It should be remembered that the respondent has resumed her studies in the college.
5. Subject to the modification mentioned above the order appealed against will stand confirmed.