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Jamna Dass Vs. Smt. Sahiboo - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtHimachal Pradesh High Court
Decided On
Case NumberF.A.O. No. 4 of 1974
Judge
ActsHindu Marriage Act, 1955 - Sections 10 and 24
AppellantJamna Dass
RespondentSmt. Sahiboo
Appellant Advocate K.D. Sud, Adv.
Respondent Advocate R.S. Thakur, Adv.
DispositionAppeal dismissed
Excerpt:
- .....pendency of her petition. the application made under section 24 was opposed by the husband. the learned district judge called for affidavits from the parties for determining whether relief should be granted to the wife. he found that the affidavits were vague, and therefore he called for particulars from the parties in respect of the property owned by them. thereafter, he made the impugned order directing the payment of litigation expenses and maintenance.3. at the outset it is necessary to point out that the manner in which the application under section 24 of the act has been disposed of by the learned district judge leaves much to be desired. the learned district judge called for affidavits and thereafter thought it necessary to call for particulars of their respective properties.....
Judgment:

R.S. Pathak, C.J.

1. This is an appeal directed against the order of Shri T.R. Handa, District Judge, Simla Division, directing the appellant to pay Rs. 100/-to the respondent towards her litigation expenses and Rs. 50/- per month as maintenance with effect from November 1, 1973.

2. The respondent's wife has filed a petition under Section 10 of the Hindu Marriage Act against the appellant husband praying for a decree for judicialseparation. It appears that during the pendency of the petition the wife applied under Section 24 of the Act for payment of a sum of money for meeting litigation expenses and as maintenance allowance during the pendency of her petition. The application made under Section 24 was opposed by the husband. The learned District Judge called for affidavits from the parties for determining whether relief should be granted to the wife. He found that the affidavits were vague, and therefore he called for particulars from the parties in respect of the property owned by them. Thereafter, he made the impugned order directing the payment of litigation expenses and maintenance.

3. At the outset it is necessary to point out that the manner in which the application under Section 24 of the Act has been disposed of by the learned District Judge leaves much to be desired. The learned District Judge called for affidavits and thereafter thought it necessary to call for particulars of their respective properties from the parties. When disposing of the application he confined his attention to a single circumstance only, and that was that the husband had agreed to pay to the wife Rupees 50/- per month under an agreement entered into on August 2, 1963. Apparently, the agreement was a pre-nuptial agreement conveying the assurance that in case the financial provision made for the wife's upkeep after marriage was insufficient he would make an additional payment of Rs. 50/- per month to her. The question whether an order for maintenance should be made under Section 24 of the Act must be determined by reference to the circumstances of the parties at the time when the application under Section 24 was made and disposed of An agreement executed some years before could constitute relevant evidence of the financial status of one or the other party but could not conclude that question. Affidavits were filed before the learned District Judge, and one of them, which had been filed by the wife, clearly stated that the husband owned property worth more than Rs. 20,000/-. It appears that the learned District Judge did not apply his mind to all the evidence on the record, but took the short road out by confining himself to the pre-nuptial agreement. By itself that agreement could not satisfactorily constitute sufficient material for disposing of the case. The learned District Judge should have applied his mind to all the material on the record. He was bound to do so in law. The manner in which he has approached the case indicates that he was merely concerned with disposing of the case and not deciding it.

4. Ordinarily, in the circumstances, this case would have called for a remand to the court below. But having regard to the circumstances, and in particular that the material is already on the record before me, it is appropriate that the case should be decided here,

5. Section 24 of the Hindu Marriage Act requires that the Court should be satisfied that the applicant for maintenance, either the wife or the husband, has no independent income sufficient for her or his support, and when making an order upon such application regard should be had to the applicant's own income and the income of the respondent. The first affidavit filed by the wife states clearly that she has no property of her own from which she receives any income, and that she is not in employment anywhere. The second affidavit establishes that the husband owns property worth more than Rs. 20,000/-. The third circumstance is the pre-nuptial agreement indicating the financial potential of the husband some years before. All this clearly establishes that the husband is in a position to pay Rs. 50/- per month to his wife. The affidavit of the husband avers vaguely that the wife has a source of income, and it is also said that she took away from his house gold and silver ornaments worth Rs. 3,000/-. The affidavit also mentions that the income from the landed property is not sufficient to make both ends meet, but does not disclose what precisely is the income received from the land. The allegations in the husband's affidavit are as vague as any document can be. In the circumstances, I hold the wife entitled to maintenance of Rs. 50/- per month during the pendency of the petition. As no argument has been put forward in respect of the amount allowed for litigation expenses I need not go into that question.

6. The appeal is dismissed, but there is no order as to costs.


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