Allahabad High Court
Smt. Veena Panda vs Devendra Kishore Panda on 22/2/2006
JUDGMENT
Alok Kumar Singh, J.
1. Smt. Veena Panda alias Seema Panda has preferred two first appeals
(1) First Appeal No. 88 of 2005 Under Section 19 Family Court read with
Section 28 of the Hindu Marriage Act, against the order dated
16.09.2005 passed by the Principal Judge, Family Court, Lucknow in
Misc. Case No. 38-C/2004 under Section 24 of the Hindu Marriage Act
connected with Suit No. 196 of 2004 (Smt. Veena Panda v. Devendra
Kishore Panda) under Section 9 of the Hindu Marriage Act for
restitution of conjugal rights and (2) First Appeal No. 87 of 2005
against the same common order dated 16.09.2005 passed by the Principal
Judge, Family Court, Lucknow in Misc. Case No. 189-C/2004 under Section
24 of the Hindu Marriage Act connected with Regular Suit No. 407 of
2004 Devendra Kishore Panda v. Smt. Veena Panda, under Section 10 of
the Hindu Marriage Act, for judicial separation. Both the appeals
between the same parties dealing with pendente lite maintenance and
litigation expenses are being taken up together for convenience.
2. The facts, wrapped in brevity, are that on 11.02.2004 the appellant,
Smt. Veena Panda (wife) filed a case (Suit No. 196 of 2004) under
Section 9 of the Hindu Marriage Act for restitution of conjugal rights
against her husband, Sri Devendra Kishore Panda (respondent) and also
moved an application on 11.02.2004 for pendentelite maintenance and
litigation expenses under Section 24 of the Hindu Marriage Act seeking
Rs. 15,000/- per month as maintenance and Rs. 11,000/- for litigation
expenses. On the other hand the respondent-husband, Sri Devendra
Kishore Panda, filed a case (Suit No. 407 of 2004) on 02.04.2004
against his wife (appellant) under Section 10 of the Hindu Marriage Act
for judicial separation. In this case also the wife (appellant) filed
similar application on 16.07.2004 for pendente lite maintenance and
litigation expenses of similar amount. Both these applications for
pendente lite maintenance and litigation expenses were decided by the
learned Principal Judge, Family Court, Lucknow by passing the single
impugned order dated 16.09.2005 rejecting the prayer for pendente lite
maintenance while allowing Rs. 2500/-each as litigation expenses in
respect of both the cases. Feeling aggrieved by this order the
aforesaid first appeals have been preferred by Smt. Veena Panda against
her husband, Devendra Kishore Panda.
3. After hearing both the parties the learned Principal Judge, Family
Court found that Smt. Veena Panda was admittedly living with her
husband [an IPS Officer now voluntarily retired w.e.f. 28.11.2005] in
official residence No. 5/2 Senior Police Officers Colony, Vibhuti Khan,
Gomti Nagar, Lucknow.
4. The following details of salary as on January, 2005 were furnished
by Sri D.K.Panda himself in the lower court during the course of
arguments, which are also acceptable to Smt. Veena Panda as per
paragraph 4 of her affidavit dated 15.02.2005 filed in lower court:
(1) Basic pay : 22400
(2) DA : 13511
(3) CCA : 150
(4) Other allowances : 375
500
150
——————
TOTAL : 37544/
——————
The learned Judge Family court worked out permissible deductions as
under:
(1) GPF : 2500
(2) G.I.S. : 120
(3) H.Rent : 600
(4) Use of car : 500
(5) Income Tax : 7500
(In proportion of income tax payable on the total income)
Thus total carry home salary as on January, 2005
was worked out to be Rs. 37544.00 – 11220.00 = 26324.00 per month.
5. But he found that the wife was not entitled for any pendente lite
maintenance because admittedly she has been living in the aforesaid
house with her husband and her all the basic needs are being fulfilled.
She was not dependent on anybody for her basic needs. Therefore, the
prayer for pendente lite maintenance was rejected. However, keeping in
view the monthly income of the husband the learned Judge awarded
litigation expenses of Rs. 2500/- each in both the cases pending
between the parties.
6. Heard learned Counsel for the parties and perused the record. After
the arguments of the learned Counsel for both the parties were
concluded on 23.01.2006 the respondent, Sri Devendra Kishore Panda,
made a request for hearing him in person. He was permitted to argue in
person but his arguments remained incomplete and for that purpose 7th
February, 2006 was fixed. On 7th February, 2006 the respondent did not
appear and the case was adjourned to 14.02.2006. On 14.02.2006 the case
was got adjourned and 21.02.2006 was fixed. On 21.02.2006 respondent
again did not appear in person and therefore a last opportunity was
given to him fixing 22.02.2006 making it clear that if the respondent
desires to argue in person he may do so on 22.02.2006 and the case will
not be adjourned on any ground. The respondent did not avail the last
opportunity extended to him to hear in person although the arguments of
his counsel had already been concluded, and on 22.02.2006 the
respondent again did not appear. In these circumstances judgment was
reserved.
7. The following case laws have been relied upon by the learned Counsel
for appellant:
I. Baby Rashmi Mehra v. Sunil Mehra . In this case
it was held that no rigid formula about percentage of income can be
fixed for giving maintenance. The quantum depends upon the status
and income of the parties. The leading case of privy council,
Ekradeshwari v. Homeshwar reported in AIR 1929 privy council 128 was
also referred to in this case wherein it was observed that
maintenance depends upon a gathering together of all the facts and
the situation, amount of free estate, the past life of the married
parties and the family and survey of the members, on reasonable view
of change of circumstances, possibly required in future, regard
having of course be given to the scale and mode of living and the
age, habits and wants and class of life of the parties. Our Hon’ble
Supreme Court in the case of Kulbhushan v. Raj Kumari expressed its agreement with the aforesaid
observation of the privy council. In this case it was also observed
by the single Judge of Delhi High Court that in one case the
maintenance may be 25% while in another it may be 50% or even less
or more. The quantum depends upon the position of status of the
parties including financial position of the defendant and the
reasonable demands of the claimant or any other factor. There can be
no quarrel with the principle laid down in these cases.
II. Dev Dutt Singh v. Rajani Gandhi 1984 (1) DMC Delhi 212. In this
case it was held that if the husband is living in his own house the
wife is also entitled to accommodation in the same house or in a
separate building. There can be no dispute in respect of this
principle also.
III. Dinesh Giju Bhai Mehta v. Smt Usha Dinesh Mehta 1979-M L R 209
Bombay- (DB). In this case the Division Bench of the Bombay High
Court held that rule 1/5 of net income of husband is unreasonable
because wife and husband are equally partners.
IV. Kalaben Kalabhai Desai v. Alabhai Karamshibhai Desai 2000(2)
Femi Juris 337. The Hon’ble Single Judge held in this case that
normal rules applied is to award 1/3rd of income of husband to wife
and child from the date of application under Section 24 of the Hindu
Marriage Act.
V. S.S. Bindra v. Tarvindra Karu . In this case the
learned single Judge opined that net income of the husband may be
divided equally between family members with one extra portion/share
being allotted to earning spouse.
VI. Chandrikaben Chhanalal Patel v. Rameshchandra Chandilal Patel
1986 (1) DMC Gujarat 232. The learned Single Judge observed that
contribution towards provident fund or payment of installments
towards loan cannot be deducted from the total earning while fixing
maintenance under Section 125 CrPC.
VII. Dharmi Chandra v. Smt Sobha Devi . It was held
that general rule is that wife should not be relegated to a lower
standard of living than that which the husband enjoys.
VIII. Shivani Chattopadhyaya v. Siddnath Chattopadhyaya 2001 AII CJ
(S.C) 174. In this case the Hon’ble Supreme Court while determining
the interim maintenance under Section 125 CrPC for wife and child
granted 6000/- Rupees as interim maintenance. In this case the
husband was D.I.G. and there was dispute in respect of his entire
income.
IX. Rekha Deepak Malhotra v. Deepak Jagmohan Malhotra
. In this case allegations were made by wife
against adulterous husband and of cruelty which was not condoled by
wife. The plea that wife left matrimonial home voluntarily was not
found tenable and, therefore, wife was held to be entitled for
maintenance. Keeping in view the provisions of Section 18 of the
Hindu Adoption and Maintenance Act in respect of quantum it was held
that it should aid the wife to live in a similar style as she
enjoyed in the matrimonial home.
X. Smt. Renu Jain v. Mahabir Prasad Jain AIR 1987 Delhi 43. In this
case it was laid down that the wife and child are entitled to live
according to the status of the husband.
XI. Smt. Tarun Batra v. S.R. Batra . According to
the facts of this case on further deterioration of relations and on
becoming difficult to stay in matrimonial house the wife shifted to
her parent’s residence. Subsequently she was denied entry to her
matrimonial house by the respondents which was not found proper
because she has a right to stay in her matrimonial house. More so
when her husband applied for divorce, the respondents cannot deny
her access to her matrimonial home or interfere in her possession
thereof.
XII. Basudeb Dey Sarkar v. Smt. Chhaya Dey Sarkar .
In this case also it was held that where matrimonial dispute is
pending between the spouses, the wife is not a licensee or
trespasser. Her right to reside there continues till it is
terminated in matrimonial proceedings.
XIII. Smt. Gurmeet Kaur v. Gur Raj Singh . In this
case the learned Additional District Judge, Amritsar declined
maintenance to wife and minor son observing that it would quietly
nudge her towards taking a less harsh view of her husband’s
behaviour towards her. It was held by the learned single Judge that
it amounted to refusal of maintenance pendente lite and expenses of
litigation to the wife and her minor child to pressurise the wife to
reconcile her differences with her husband and, therefore, it has to
be branded as a patent misuse of the provisions of Section 24 of the
Hindu Marriage Act.
XIV. Radhikabai v. Sadhu Awatrai AIR 1970 Madhya Pradesh 14. In this
case the Division Bench held that merely because a potential
capacity to earn something is found in the wife, the Court cannot
refuse to grant her maintenance. It was further held that Section 24
of the Hindu Marriage Act does not envisage that customary ornaments
may be taken into account for the purpose of income nor can the
Court refuse maintenance on the ground that wife can pull on for
some time by selling her ornaments.
XV. Pratima Singh v. Dr. Abhimanyu Singh Parihar 1986 (1) DMC 301
M.P. In this case the Hon’ble single Judge modified the order passed
by the trial court and awarded the pendente lite maintenance at the
rate of 50% of the income of the husband, after deducting the amount
for uncertainties.
XVI. Savita Aggarwal v. R.C. Aggarwal 1991(1) DMC 18 (P&H).
According to ratio of this case even if the entire salary is
deposited as contribution towards General Provident Fund etc. that
will not deprive the petitioner of her right to get maintenance
pendente lite.
XVII. Smt. Krishna Kumari v. IV ADJ Hamirpur AIR 1989 Allahabad 198.
The Hon’ble single Judge of our own High Court in this case has held
that the appellate court must be slow and cautious in granting
demand in the case under Section 24, 28 of the Hindu Marriage Act.
In this particular case the order of trial court was not found to be
callous or capricious. Therefore, it was held that the appellate
court in such cases must not interfere in the order of the trial
court.
XVIII. Harmindra Kaur v. Sukhwinder Kaur 2002(2) Femi Juris CC 292
Delhi. This case law also deals with maintenance to wife and child
under Section 125 Cr.P.C. The income of the husband was found to be
Rs. 12,000/- per month and considering the equal status of the wife
who was to live with the child the amounts of Rs. 4800/- for wife
and Rs. 2400/- for the child were awarded by dividing the income of
the husband in 5 units, two units each for adults and one unit for
the child.
XIX. Ruma Chakraborty v. Sudha Rani Banerjee 2005 (36) A I C 398
(SC). The Hon’ble apex Court while dealing with the matter in Hindu
Adoption and Maintenance Act held that the intention of the
legislature by including clothing, residence etc. was to provide for
real maintenance and not a bare or starving maintenance.
XX. Pradeep Kumar Kapoor v. Ms. Shailja Kapoor .
While defining ”maintenance’ and ”support’ under Section 24 of the
Hindu Marriage Act it was laid down that the definition of
”maintenance’ as given in Hindu Adoption and Maintenance Act should
be adopted. It was held that in deciding the application under
Section 24 of the Act the Court has to act in accordance with sound
judicial principles and cannot act in an arbitrary manner to the
prejudice of either of the parties.
8. The following principles were found to be relevant for the purpose:
(1) Position and status of the parties.
(2) Reasonable wants of the claimant towards food, clothing,
shelter, medical attendance with treatment, education and the like.
(3) Income of the claimant.
(4) Income of the opposite party.
(5) Number of persons the opposite party is obliged to maintain.
9. As a corollary the following point was also added:-In arriving at
the income of a party only involuntary deductions like income tax,
provident fund contribution etc. are to be excluded.
In this case law the following case laws were also considered:
(i) Ashit Mukherjee v. Smt. Susmita Mukherjee
(ii) L.R. Rajendran v. Gajalakshmi AIR 1985 Madras 195
(iii) Rajambal v. Murugappan
(iv) Dev Dutt Singh v. Rajni Gandhi AIR 1984 Delhi 320
(v) Preeti v. Ravind Kr. Sharma
(vi) Baboolal v. Prem Lata XXI.Shakti Pershad v.
Ratna Pershad 2003 (1) HLR 491. In this case it was held that the
wife is entitled to maintenance according to the status of her
husband.
10. The gamut of all the aforesaid case laws is that as long as
matrimonial ties subsists between the parties, the wife is entitled to
live in the matrimonial house or in a separate building. The wife
should not be relegated to a lower standard of living than that the
husband enjoys. She should be given maintenance according to status of
her husband. While considering the question of ”maintenance pendente
lite’ under Section 24 of the Hindu Marriage Act its definition as
given in Hindu Adoption and Maintenance Act should be adopted and some
significant points should necessarily be taken into account such as (i)
position and status of the parties, (ii) reasonable wants of the
claimant towards food, clothing, shelter and medical attendance etc.,
(iii) income of the respondent, (iv) income, if any, of the claimant,
(v) number of persons the respondent is obliged to maintain. As regards
quantum of maintenance it may be from 1/3rd to 50% of the income of the
respondent but no rigid formula can be fixed. It may differ from case
to case. The contributions towards General Provident Fund and payment
towards instalments of loan etc. should not be permitted to be deducted
to work out the carry home salary. The maintenance should not be
refused on the ground that the wife can pull on for some time by
selling her ornaments etc.
11. Now we propose to consider the point of ”maintenance pendente lite
and expenses of proceedings’. The relevant provision envisaged in
Section 24 of the Hindu Marriage Act are extracted hereinbelow:
24. Maintenance pendente lite and expenses of proceedings.- Where in
any proceeding under the Act it appears to the Court that either the
wife or the husband, as the case may be, has no independent income
sufficient for her or his support and the necessary expenses of the
proceedings, it may, on the application of the wife or the husband,
order the respondent to pay to the petitioner the expenses of the
proceeding, and monthly during the proceeding such sum as, having
regard to the petitioner’s own income and the income of the
respondent, it may seem to the Court to be reasonable.
12. In the case before us the appellant-wife does not appear to have an
independent income sufficient for her support and to meet the necessary
expenses of the proceedings. There is neither any plea nor any evidence
on record to that effect. The only contention is about her potential
capacity to earn some thing as pointed out by the learned Counsel for
the respondent, but that cannot be a ground for refusing to grant her
maintenance as was held in the case of Radhikabai (supra). Similarly
she cannot be refused maintenance on the ground that she can pull on
for some time by selling her ornaments etc. towards which the
respondent has indicated in his reply as further pointed out by learned
Counsel for the respondent. On the same analogy fixed deposits of
approximately 1.5 lac rupees in the name of wife, as emphasized by the
learned Counsel for the respondent and the respondent in person, also
cannot be an impediment in granting maintenance. In this case the
maintenance pendente lite has been refused by the learned Judge, Family
Court, Lucknow simply on the ground that she has been admittedly living
with her husband in the official residence and it has not been said by
the wife that due to alleged behaviour of her husband she has become
dependent on any body else. It is true that the appellant-wife has been
living with her husband in 5/2 Senior Police Officers Colony, Vibhuti
Khand, Gomti Nagar, Lucknow which is allotted to the respondent. But
presuming that she is living there with all amenities also and
therefore refusing to grant maintenance on this ground cannot be said
to be justified. It transpires from the record that there are
allegations and counter allegations against each other. The husband has
filed a suit for judicial separation while the wife has filed separate
suit for restitution of conjugal rights. Both the parties are not
willing to live with each other and even reconciliation proceedings
could not materialize. The allegations which both the parties are
levelling against each other are such that probably it is not possible
for them to live together and lead the normal life as husband and wife.
According to wife for the last few years her husband, in the garb of
religion, has been trying to adopt wrong path. He admittedly claims
himself to be an incarnation of Radha, wears ear rings, nose ring,
Payal and applies polish on his nails. In a female attire he performs
Raas Lila with ladies etc. inside the residential house and also
elsewhere. Several times he tried to oust her from that residence by
beating her and by creating such type of activities. At times he also
tried to assert the authority of a police officer so that she may leave
that house. But in the absence of any alternative, she was compelled to
continue to live with her husband in the same house. It is needless to
say that either of the spouse has a right to live with dignity. It has
also been specifically contended by the appellant in the lower court
that her husband has snatched away all the amenities such as
electricity, telephone, car, servants, food and clothing etc. which
were available to her due to the status and service of her husband. It
was also specifically contended that due to this reason her sons were
helping her out but she did not want to part with her right to have
maintenance from her husband. It is not disputed that the spouse has
two sons. While the elder son is a senior IRS officer working in Bombay
and living there with his family the younger one is unmarried but
serving in Bangalore with a reputed company. The learned Counsel for
the respondent as also the respondent in person laid much emphasis that
the younger son who is unmarried and serving in Bangalore and is
getting a handsome salary is very close to his mother and he has also
undertaken to bear all the expenses of his mother (appellant) as per
E-Mail sent by him. But on this ground a wife cannot be deprived from
getting maintenance from her husband under Section 24 of the Hindu
Marriage Act. Therefore, we find that the learned lower court was not
justified in presuming that since the wife was admittedly living with
the husband in the same house, she was also getting all amenities and
every item of basic needs. As already mentioned the appellant has also
said that her sons are also giving their help to her. Therefore, it was
also not proper to observe, as mentioned in the impugned order, that
she has not even said that due to alleged mal treatment and behaviour
of her husband, she has become dependent on some body else. Therefore,
the finding of the learned lower court on this point cannot be
sustained. Section 24 of the Hindu Marriage Act does not lay down any
condition precedent for awarding maintenance. The only ingredient is
that the husband or the wife, as the case may be, should not have
independent income sufficient for his or her support and necessary
expenses of the proceedings. We have already found that the
appellant-wife has no such independent income sufficient for her
support and expenses of the proceedings. Finally, therefore, we find
that the appellant-wife is entitled for maintenance pendente lite and
the expenses of the proceedings.
13. Now we have to look into the quantum of the maintenance and
expenses of the proceedings. In this regard the appellant’s own income
and the income of the respondent have to be taken into consideration
and thereafter an amount which may appear to be reasonable has to be
awarded. It is needless to say that maintenance pendente lite has been
claimed in both the cases by the same appellant-wife and, therefore,
only one maintenance pendente lite has to be awarded. There is no
quarrel with the proposition that such maintenance should normally be
awarded from the date of application. Out of the two separate
applications the application dated 11.02.2004 is the earlier one.
Therefore maintenance has to be granted with effect from 11.02.2004.
Coming again on the point of quantum we have already discussed
hereinabove that the appellant-wife has no income and her potential
capacity to earn some thing is not relevant for the purpose of the
relevant section. As regards income of the respondent-husband there
does not appear to be any dispute in respect of the details of the
salary as on January, 2005, as mentioned in the impugned order and also
in paragraph 4 (at page 3) of this judgment. Thus the salary of the
respondent as on January, 2005 (immediately before the date of
application given on 11.02.2004) was admittedly Rs. 37544/-. The
following were the permissible deductions, excluding contribution
towards General Provident Fund which being not involuntary are not
permissible deduction as was held in the case of Savita Aggarwal
(supra):
Group Insurance Scheme (GIS) Rs. 120.00
House Rent: Rs. 600.00
Personal Use of Car: Rs. 500.00
Income Tax: Rs. 7500.00
(in proportion of income tax payable on the total income).
Total permissible deductions= Rs. 8720.00
14. Thus total carry home salary of the respondent as on January, 2005
can be said to be Rs. 37544.00 – 8720.00 = Rs. 28824.00. Having regard
to the fact that the appellant-wife is entitled to maintenance
according to the status of her husband, who has been Inspector General
of Police in the present case, a reasonable amount has to be fixed as
maintenance. The respondent is not obliged to maintain any body else
because, as mentioned above, his both the sons are admittedly well
settled and they are earning sufficiently. The appellant has reasonable
wants towards food, clothing, medical attendance etc. As regards
shelter it is admitted fact that she has been living in 5/2 Senior
Police Officers Colony, Vibhuti Khand, Gomti Nagar, Lucknow which is
allotted to her husband and she is still continuing to live in that
house as has been indicated during the course of arguments on behalf of
the respondent. Now the respondent stands voluntarily retired with
effect from 28.11.2005 and, therefore, the appellant may have to vacate
that house in near future, but the position as it stands today is that
while fixing quantum of maintenance presently the need of house has to
be excluded. It may be mentioned that the Hon’ble Division Bench
comprising Hon’ble Mr. Justice U.K. Dhaon and Hon’ble Mr. Justice S.S.
Chauhan had fixed Rs. 7000/- per month as interim maintenance vide
order dated 10.11.2005 passed in these appeals. Keeping in view all the
facts and circumstances and the discussion made hereinabove, it stands
to reason to award 1/3rd of the aforesaid amount of salary of
respondent which comes to Rs. 9608.00 (28824 ? 3) i.e. Rs. 9600/- in
round figure till the date of retirement. After his voluntary
retirement with effect from 28.11.2005 the respondent will be getting
pension instead of salary which normally comes to half of the amount of
working salary. A proposed calculation chart of pension after
commutation has been filed by the respondent himself but it has been
indicated on his behalf that due to non-vacation of government
residence by the appellant the required no objection certificate is not
being issued due to which he is not getting pension as yet. It has also
been argued on behalf of the respondent that after the date of his
retirement his income will be reduced to almost half of the salary.
This argument has substance. As per the pay certificate filed by the
respondent himself as annexure-2 to his affidavit dated 17.10.2005 his
salary was Rs. 38231.00 (without any deductions). If we take it in the
round figure of Rs. 40,000/- then its half amount would be Rs. 20,000/-
(without commutation). Therefore with effect from 28.11.2005 the amount
of maintenance pendente lite should be fixed at Rs. 6666.00 (20,000?3)
i.e. Rs. 6700/- in round figure
15. So far as litigation expenses for both the cases are concerned,
although in Family Courts the lawyers were not permitted to participate
but during the course of time the position has changed. The cost of
stationary, typing charges etc. are also increasing day by day.
Therefore, the amount of Rs. 2500/- each deserves to be enhanced to Rs.
6000/- in each case as litigation expenses to be paid by the
respondent.
16. Accordingly both the appeals are partly allowed and the impugned
order dated 16.09.2005 passed by the Principal Judge, Family Court,
Lucknow is modified to the extent that the respondent shall pay an
amount of Rs. 9600.00 per month as maintenance pendente lite to the
appellant with effect from 11.02.2004 (the date of first application)
and an amount of Rs. 6700.00 per month as maintenance pendente lite
with effect from 28.11.2005 (the date of voluntary retirement of the
respondent). The respondent shall also pay a sum of Rs. 6000.00 as
litigation expenses in each case.
