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Rakesh Chandok Vs. Smt. Vinod - Court Judgment

LegalCrystal Citation
SubjectFamily;Civil
CourtJammu and Kashmir High Court
Decided On
Case NumberCivil First Misc. Appeal No. 9 of 1981
Judge
ActsJammu and Kashmir Hindu Marriage Act, 1955 - Section 24; ;Jammu and Kashmir Hindu Marriage (Amendment) Act, 1980 - Sections 30 and 34(2); ;Code of Civil Procedure (CPC) , 1908 - Section 115; ;Hindu Marriage Act, 1955 - Section 24
AppellantRakesh Chandok
RespondentSmt. Vinod
Appellant Advocate Inderjit Gupta, Adv.
Respondent Advocate J.L. Sehgal, Adv.
Cases ReferredSmt. Sudarshan Kumari v. Chaggar Singh
Excerpt:
- .....owned by his mother. the parties led evidence in support of their respective cases and the learned district judge on consideration of the same eventually came to the conclusion that the appellant was earning something in the neighbourhood of rs. 4,000/- per month and was also maintaining a car and that the respondent required at least a sum of rs. 2,000/- to meet the litigation expenses and rupees 500/- per mensem as maintenance. he, accordingly passed the impugned order.3. a preliminary objection has been taken on behalf of the respondent that in view of the specific provisions of section 34 of the 1980 act, no appeal lay against the impugned order which was passed after the aforesaid act came into force. there is considerable force in this objection. prior to the coming into.....
Judgment:

I.K. Kotwal, J.

1. This appeal arises out of an order passed by District Judge, Jammu, Under Section 24 of the Jammu and Kashmir Hindu Marriage Act, 1955, hereinafter to be referred to as the 1955 Act, which corresponds to Section 30 of the Jammu and Kashmir Hindu Marriage Act, 1980, hereinafter to be referred to as the 1980 Act, granting maintenance pendente lite at the rate of Rs. 500/- per mensem and a further sum of Rs. 2,000/- on account of litigation expenses in favour of the respondent.

2. The respondent brought an application Under Section 9 of the 1955 Act against the appellant in the Court of District Judge, Jammu. On 24-8-1979, she made an application Under Section 24 of the said Act that she having no independent income sufficient for her support and the necessary expenses of litigation, the appellant may be ordered to pay to her a sum of Rupees 500/- per mensem as maintenance and a further sum of Rs. 2,000/- by way of litigation expenses. This application was resisted by the appellant on the ground that his total income was Rs. 500/- per month, which he was drawing by way of salary as an employee of Vir and Co., a business concern at Srinagar exclusively owned by his mother. The parties led evidence in support of their respective cases and the learned District Judge on consideration of the same eventually came to the conclusion that the appellant was earning something in the neighbourhood of Rs. 4,000/- per month and was also maintaining a car and that the respondent required at least a sum of Rs. 2,000/- to meet the litigation expenses and Rupees 500/- per mensem as maintenance. He, accordingly passed the impugned order.

3. A preliminary objection has been taken on behalf of the respondent that in view of the specific provisions of Section 34 of the 1980 Act, no appeal lay against the impugned order which was passed after the aforesaid Act came into force. There is considerable force in this objection. Prior to the coming into force of the 1980 Act provision for appeals was made in Section 28 of the 1955 Act. This section was much wider in scope than Section 34 of the 1980 Act, in that, it provided for appeals against every order passed by the court in exercise of its original civil jurisdiction; the only exception being appeal on the subject of costs only. Right of appeal against orders has been restricted under Sub-section (2) of Section 34 to orders passed under Ss. 31 and 32 of the 1980 Act only; appeal on the subject of costs of course being barred under this section also. Section 31 relates to permanent alimony and maintenance which the court may grant at the time of passing any decree or at any time even subsequent thereto and Section 32 pertains to orders in regard to custody of children. The impugned under, as already noticed, has been passed Under Section 30 of the 1980 Act which does not find mention in Sub-section (2) of Section 34. No appeal, therefore, lies against an order passed Under Section 30,To this extent, therefore, the preliminary objection prevails.

4. Even so, the next question to be determined is whether the appellant is really out of court for all intents and purposes. The contention of the learned counsel for the appellant is that even if no appeal is competent against the impugned order, the court has ample power to examine its correctness in exercise of its revisional jurisdiction Under Section 115, Civil P. C. He has, therefore, prayed that this appeal may be treated as a revision and disposed of as such. The argument in reply, however, is that the 1980 Act being a complete code in itself, there is no room for invoking the revisional jurisdiction of this Court when the aforesaid Act itself does not provide that an order passed by a court under the Act would be revisable Under Section 115.

5. The High Court, Under Section 115 can call for the record of any case which has been decided by a court subordinate to it, and in which no appeal lies to it. This power has of course to be exercised under certain circumstances specified in Clauses (a) to (d) of Section 115 but the two conditions that must be satisfied for invoking its revisional jurisdiction are that the order sought to be revised should have been passed by a court subordinate to the High Court and that no appeal should lie to it from the said order. In the instant case both these conditions are satisfied, in that, the order sought to be revised has been passed by District Judge, a court subordinate to the High Court, and is also not an appealable order. This court is, therefore, competent to revise it provided it falls under any one or more of the categories mentioned in Clauses (a) to (d). Mr. Sehgal, when he raises the contention that the order is not revisable because the 1980 Act is a complete code in itself which does not provide for the remedy of revision, clearly overlooks Section 23 of the 1980 Act which says that subject to the other provisions contained in the said Act and to such rules as the High Court may make in this behalf, all proceedings under the Act shall be regulated, as far as may be, by the Code of Civil Procedure. There is no provision in the 1980 Act or the rules made thereunder, that bars the application of Section 115 to orders passed under the said Act. I am, therefore, clearly of the opinion that even if no appeal is competent against the impugned order, still it is revisable Under Section 115.The appeal is, accordingly, treated as a revision petition.

6. So far as the amount of Rs. 2,000/-for litigation expenses is concerned, the finding of the learned District Judge cannot be disturbed for the simple reason that it is a finding of fact based on evidence and appreciation of evidence is no ground for interference in revisional jurisdiction Under Section 115. The other finding of the learned District Judge is, however, vitiated by material irregularity of procedure. No court is competent to grant to the party more than what it itself claims. In her application the respondent has herself claimed a sum of Rs. 500/-only by way of monthly maintenance. The learned District Judge could not have, therefore, granted a sum more than Rs. 500/- as monthly maintenance in her favour, and that too, after taking into consideration the respondent's own independent income, as the language of Section 30 clearly warranted. He has not taken into consideration at all the evidence produced by the petitioner that the respondent is drawing Rs. 225/- per month as salary from Government College for Women, Jammu, where she is employed, even though on temporary basis, as a Reading room Assistant. It is trite law that even a finding of fact recorded after overlooking material evidence on the point stands vitiated by an error or law. Overlooking of evidence is a material irregularity of procedure and, therefore, an error of law which, there can be no manner of doubt does attract Clause (c) of Section 115. The learned District Judge has no doubt correctly arrived at the conclusion that an amount of Rs. 500/- is required by the respondent as monthly maintenance, but he has committed an error in not deducting from it the amount of Rs. 225/- which the respondent is receiving by way of salary. He should have awarded in her favour a sum not more than Rs. 275/- per month by way of maintenance.

7. I am not prepared to accept the hard and fast rule propounded by the learned counsel for the petitioner that in no case could the respondent be granted more than one-fifth of her husband's income by way of maintenance Under Section 30. In support of his aforesaid contention he has relied upon a single Bench decision of this court in Smt. Sudarshan Kumari v. Chaggar Singh, 1978 Kash LJ 1 : (AIR 1978 J & K 25). The learnedsingle Judge in the aforesaid case has in the beginning no doubt made observations which do lend some support to Mr. Gupta's contention, but at later stage of the judgment he has himself expressed his opinion that granting maintenance at the rate of one-fifth of the husband's income is not a rule of universal application. What Section 30 requires is that the amount awarded by way of (maintenance?) compensation should be reasonable. The expression 'reasonable' is a relative term. What may be reasonable in one case may not be necessarily reasonable in another case. Reasonableness of the quantum of (maintenance?) compensation has not to be determined by merely having regard to the petitioner's own income and the income of the respondent but also by having regard, as far as may be, to ihe standard of life maintained by the family to which the parties belong. The rule that in no case maintenance should be granted at a rate of more than one-fifth of the husband's income is not only unreasonable, but also irrational which may some time defeat the very object of avoiding vagrancy; the raison detre of Section 30.

8. The petitioner is the only son of his mother who have a house at Delhi, a house at Jammu, and a business concern at Srinagar. Admittedly, a car is being maintained by the petitioner. The petitioner says that the car belongs to the business concern. It is again his own case that his mother is the sole proprietor of the business concern and he is the sole heir of his mother. Keeping in view these circumstances, Rs. 500/- per month should be the minimum requirement of the respondent to maintain herself. It is urged on her behalf that since she has to maintain her ailing daughter also who is suffering from polio, a sum of Rs. 500/- per mensem would be meagre. Section 30 provides for maintenance of the spouse only and not for maintenance of children dependent upon him or her. The respondent, if so advised, can take recourse to other legal proceedings for recovery of maintenance for her child. This order granting maintenance in her favour will not come in her way.

9. For all these reasons the impugned order is modified to the extent that the petitioner will pay a sum of Rs. 275/- per month to the respondent by way of maintenance during the pendency of the proceedings. Since the parties have not disputed the correctness of the view taken by the learned District Judge that maintenance shall be payable from the date the issues are framed in the case, the order of maintenance shall take effect from 2-12-1980 when the issues were framed in the respondent's petition under Section 9 of the 1955 Act. The revision petition is accepted to this extent only. Keeping in view the partial success and failure of the parties, they are left to bear their own costs in this court.


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