A wife is entitled to get pendente
lite alimony from the husband in view of provisions of Section 24 of the
Act if she happens to be a person who has no independent income sufficient for
her to support and to make necessary expenses of the proceedings.
The object behind Section 24 of the Hindu Marriage
Act, 1955 is to provide for maintenance, pendente-lite, to a spouse in
matrimonial proceedings so that during the pendency of the proceedings the
spouse can maintain herself/himself and also have sufficient funds to
carry on the litigation so that the spouse does not unduly suffer in the
conduct of the case for want of funds.
A spouse unable to maintain himself/herself is entitled
to maintenance on the principle of equi-status and respect that the spouse
would have enjoyed if he/she continued to live with other spouse.
The provisions of Section 24 are beneficent in nature
and the power is
exercised by the Court not only out of compassion but also by way of judicial
duty so that the indigent spouse may not suffer at the instance of the affluent
spouse.
Therefore, the question arises is
whether a woman having good qualifications and sufficient income is entitled to
claim pendente lite alimony from her husband in a matrimonial petition which
has been filed against her for divorce on the ground of cruelty.
The question also here is Whether a
spouse who has capacity of earning but chooses to remain idle, should be
permitted to saddle other spouse with his or her expenditure ? and Whether
such spouse should be permitted to get pendente lite alimony at higher rate
from other spouse in such condition ?
These questions were considered in
detail in
Smt. Mamta Jaiswal vs Rajesh
Jaiswal II (2000) DMC 170, where the petitioner Mamta Jaiswal
has acquired qualification as MSc. M.C. M.Ed, and was working in Gulamnabi
Azad. College of Education, Pusad, Distt. Yeotmal (MHS). The husband Rajesh
Jaiswal is sub-engineer serving in Pimampur factory. The order which is under
challenge by itself shows that Mamta Jaiswal, the wife was earning Rs. 4,000/-
as salary when she was in service in the year 1994. The husband Rajesh Jaiswal
is getting salary of Rs. 5,852/-.
The Matrimonial Court awarded alimony of Rs. 800/- to Mamta Jaiswal per month
as pendente lite alimony, Rs. 400/- per month has been awarded to their
daughter Ku, Diksha Jaiswal. Expenses necessary for litigation has been awarded
to the tune of Rs. 1,500/-. The Matrimonial Court has directed Rajesh Jaiswal
to pay travelling expenses to Mamta Jaiswal whenever she attends Court for
hearing of them matrimonial petition pending between them.
Matrimonial petition has been filed by husband Rajesh Jaiswal for getting
divorce from Mamta Jaiswal on the ground of cruelty. This revision petition
arises on account of rejection of the prayer made by Mamta Jaiswal when she
prayed that she be awarded the travelling expenses of one adult attendant who
is to come with her for attending Matrimonial Court.
And the Court answered the above
questions thus
" Section 24 has been enacted for the purpose of providing a
monetary assistance to such spouse who is incapable of supporting himself Or
herself in spite of sincere efforts made by him or herself.
A spouse who is well qualified to get the service immediately with less
efforts is not expected to remain idle to squeeze out, to milk out the other
spouse by relieving him of his or her own purse by a cut in the nature of
pendente lite alimony. The law does not expect the increasing number
of such idle persons who by remaining in the arena of legal battles, try to
squeeze out the adversary by implementing the provisions of law suitable to
their purpose.
In the present case Mamta Jaiswal is a well qualified woman possessing
qualification like M.Sc. M.C. M.Ed. Till 1994 she was serving in Gulamnabi Azad
Education College. It impliedly means that she was possessing sufficient
experience. How such a lady can remain without service ? It really puts a bug
question which is to be answered by Mamta Jaiswal with sufficient cogent and
believable evidence by proving that in spite of sufficient efforts made by her,
she was not able to get service and, therefore, she is unable to support
herself.
A lady who is fighting matrimonial petition filed for divorce, cannot be
permitted to sit idle and to put her burden on the husband for demanding
pendente lite alimony from him during pendency of such matrimonial petition.
Section 24 is not meant for creating an army of such idle persons who
would be sitting idle waiting for a 'dole' to be awarded by her husband who has
got a grievance against her and who has gone to the Court for seeking a relief
against her. The case may be vice versa also. If a husband well qualified,
sufficient enough to earn, site idle and puts his burden on the wife and waits
for a 'dole' to be awarded by remaining entangled in litigation. That is also
not permissible. The law does not help indolent as well idles so also
does not want an army of self made lazy idles.
Everyone has to earn for the purpose of maintenance of himself or herself, at
least, has to make sincere efforts in that direction. If this criteria is not applied, if
this attitude is not adopted, there would be a tendency growing amongst such
litigants to prolong such litigation and to milk out the adversary who happens
to be a spouse, once dear but far away after an emerging of litigation.
If such army is permitted to remain
in existence, there would be no sincere efforts of amicable settlements because
the lazy spouse would be very happy to fight and frustrate the efforts of
amicable settlement because he would be reaping the money in the nature of
pendente lite alimony, and would prefer to be happy in remaining idle and not
bothering himself or herself for any activity to support and maintain himself
or herself .
That cannot be treated to be aim, goal of Section 24. It
is indirectly against healthiness of the society. It has enacted for
needy persons who in spite of sincere efforts and sufficient effort are unable
to support and maintain themselves and are required to fight out the litigation
jeopardizing their hard earned income by toiling working hours
The Court held that
" In the present case the husband has not challenged the order of
alimony pendente lite therefore, no variation or modification was made in the
order. This revision petition arises on account of rejection of the prayer
made by Mamta Jaiswal when she prayed that she be awarded the travelling
expenses of one adult attendant who is to come with her for attending
Matrimonial Court such revision petition stands dismissed"
Here are some of the judgments where interim
maintenance to a qualified wife was altogether denied or reduced.
In Rupali Gupta Vs Rajat Gupta MAT.APP.(F.C.)
143/2014 The wife had petitioned against the Family Court’s
verdict denying interim maintenance to her considering her qualifications and
supposed financial independence, given her 13 years of experience as a
Chartered Accountant. An amount of ₹22,900 per month towards the
maintenance to her two children was, however, awarded by the court.
The couple got married on July 16, 2005, in Delhi, had two children and lived
together till 2013. The woman is a CA while her husband is an Electrical
Engineer but runs his own business.
After the filing of divorce petition by the husband, the wife filed an
application seeking interim maintenance for a sum of ₹3
lakh per month for herself and the two children, and ₹1.1
lakh towards litigation expenses.
The family court had struck down the demand and also observed that the
parties were indulging in jugglery of accounts to present a misleading picture
of their financial status. The petitioner’s claim that she was earning only ₹7000
per month was put down by the court on on the basis of illogicality
of the claim.
The appellate Court observed that
" Section 24 of the Hindu Marriage Act makes a provision for award of
interim maintenance to a spouse who has no independent income
sufficient to support herself and fight the legal battle. "
The court held that "the
decision taken by the Family Court was a balanced one and did not call for any
interference. The impugned judgment was thus upheld."
In Manokaran @ Ramamoorthy Vs. M. Devaki, AIR 2003 Mad 212 the High
Court of Madras while construing the provision of Section 24 of the Hindu
Marriage Act and relying on its earlier decision reported as Kumaresan
Vs.Aswathi held that for grant of maintenance, the party
should not have sufficient independent income for her/his support.
The Court therefore observed and held that
" In the light of the materials
available it is established that the petitioner/husband herein is getting
only Rs.70/- per day or Rs.2000/- per month. On the other hand it is the
admitted case of the respondent/wife that she is employed in a private Satelite
T.V. drawing a salary of Rs.4,500/-and earning for her livelihood staying
with her brother, therefore it cannot be construed that she is not having
sufficient independent income."
" The Family Court lost its sight to consider the above material aspect
and therefore the impugned order of the Principal Family Court granting
interim maintenance at the rate of Rs.750/- per month and litigation expenses
of Rs.1,500/-, is set aside and the Civil Revision Petition is
allowed."
In Manish Kumar vs Pratibha (2009) ILR 2 Delhi 246 The Delhi High
Court while dealing with a petition under Article 227 of the
Constitution of India filed by the petitioner/husband against an order passed
by the trial court granting a interim maintenance of Rs.7,500/- per month
to the respondent wife under Section 24 of the Hindu Marriage Act (HMA)
observed that -
" The benefits granted under this Section
are only temporary in nature and there are other provisions of law where a wife,
who is not able to maintain herself, can
claim maintenance/permanent alimony from the husband
e.g. Section 25 of HMA or under provisions of Hindu Adoption and Maintenance
Act."
" The
provisions of this Section are not meant for equivalising the income of wife
with that of husband but are meant to see that where divorce or other proceedings
are filed, either of the party should not suffer because of paucity of source
of income and the Court should pass an order even during the pendency of
such a petition, for maintenance and litigation expenses."
" Where a wife has no income or is without any support for maintaining
herself, the Court has to pass an order considering the income and living
status of the husband. However, where the wife and her husband both
are earning and both are having good salary, merely because there is some
salary difference, an order is not required to be passed under Section 24
of HMA."
In this case the court finds that
" The salary slips of the wife has been placed on
record which show that she was having salary in the range of around Rs.50,000/-
per month. Her statement of salary account from February 2007 to January 2008
shows that she had a take-home salary during this year of Rs.6,80,188/-. The
average monthly salary was thus Rs.56,682/-"
And therefore held that
" A person who is earning this much of salary can
very well maintain herself with such a standard which may be envy of many and
under no stretch of imagination it can be said that the income earned by her
was not enough to maintain her. There was no other liability on her. There is
no offspring from this wedlock."
" The trial court has wrongly allowed
maintenance to the respondent wife and therefore the impugned order granting
maintenance of Rs.7500/- per month to the wife, is hereby set aside. However,
the petitioner would be liable to pay the litigation expenses, as ordered by
the trial court."
In Anirudha Mishra vs Dr. Sujata Acharya AIR 2004 Ori 1 The Orissa High Court while dealing
with a petition filed by the
petitioner/husband against an order passed by the trial court granting a
interim maintenance of Rs.800/- per month and litigation expenses of Rs.
3,000/-, to the opposite party - wife under Section 24 of the Hindu Marriage
Act (HMA) observed that -
" The opposite party is working
as a teacher in St. Xavior School. and is drawing salary of Rs 3240/- every
month. However, on the other hand it also appears that the present petitioner
is working as a News Reporter in O.T.V., Bhubaneswar and is drawing a salary of
Rs. 3496/- per month. If comparison is made so far as salaries of the
respective parties are concerned, it appears that the petitioner is earning a
little more than that of the opposite party. The expenditure incurred by both
the parties include treatment of their respective parents. The mother of the
opposite party is getting family pension whereas the mother of the present
petitioner is yet to get family pension and she is also suffering from cancer.”
" Thus the opposite party stands
on much better footing than that of the present petitioner and since she is
earning Rs. 3240/- every month towards salary from the school where she is
working, it cannot be said that she is not in a position to maintain herself.
We are, therefore, of the view that there was no reason for the revisional
Court to allow interim maintenance of Rs. 800/- per month. So far as litigation
expenses are concerned, we are of the view that there is no reason for us to
interfere with the same.”
In Anu Kaul vs Rajeev Kaul CIVIL APPEAL NOS.1789-1790 OF 2009 the
Supreme Court finds that
" The Respondent-husband is
working as a Senior Head of Mukund Steel Ltd., having its head office at Mumbai
and drawing a salary of Rs.40,000/- per month and is entitled to claim perks
for the education of his children was not denied by the respondent by filing
his counter affidavit or reply statement."
" In the application filed, the appellant admits
that she is employed and drawing a salary of Rs.9,000/- per month. However, she
asserts, she has to pay an amount of Rs.3,000/- by way of rent to the tenanted
premises which she is presently occupying in view of the lis between the
parties."
The Court held that " since the appellant is
employed and is drawing a salary of Rs.9,000/- per month, we do not intend to
enhance the litigation expenses awarded by the High Court during the pendency
of the appeal filed by the husband " but no interim maintenance was given.
But there are many Judgments where though the wife was
a qualified one was awarded with maintenance like -
In Smt. Chandana Guha Roy vs Goutam Guha Roy AIR 2004 Cal 36, The wife-petitioner
filed an application under section 24 of the Hindu Marriage Act
praying for maintenance pendente lite with litigation cost. After that the
husband-respondent also filed an application claiming maintenance from the
wife. The trial court rejected both the applications on the ground
that petitioner-wife is a graduate whereas the O.P.-husband, though a
diploma Engineer, has been living a life of vagabond and is totally dependent upon
the brothers. Then, on aggrieved by this order the filed an revisional
application before the Calcutta High Court.
The Calcutta High Court observed that
" The learned Trial Judge was wrong in the
calculation that if an Arts Graduate lady can do something and should not sit
idle then the learned Trial Judge also should have considered that the
petitioner-husband is a Diploma Engineer and he also should not sit idle being
able-bodied."
" It cannot be said to be believable that in a private firm named Garrison
Engineering Company which is a reputed organization has appointed the
O.P.-husband as store-in-charge without appointment letter and has also
terminated his job without any letter of termination, far less without any
disciplinary proceeding or without any enquiry It is also surprising that
the learned trial Judge accepted that the service of the O.P.-husband in these
hard days was terminated and he did not proceed with any legal proceeding
challenging the order of dismissal from service. "
The Court held that
" The impugned order
passed by the Trial Court is therefore, set aside. The learned Trial Judge is
directed to hear the application afresh filed by both the wife and the husband.
Till the learned trial Judge arrives at a decision the court direct the
respondent/husband to pay Rs. 1800/-(Rupees One thousand eight hundred only)
per month as maintenance to the petitioner/ wife and will go on paying the same
month by month by sending the same to the petitioner/wife through Money Order.
The respondent-husband is also directed to pay Rs. 5000/- (Rupees Five
thousand) only in two equal installments within three months from date to the
petitioner/wife towards litigation costs. "
Thus the position is that a qualified
wife may entitled to get interim maintenance provided she has no independent
income sufficient for her support.
