(2003) 1 MLJ 752 (Mad)

IN THE HIGH COURT OF JUDICATURE AT MADRAS


Present : P.Sathasivam, J.

Case Number(s) : C.R.P.(PD) No.1929 of 2002 and C.M.P. No.16264 of
2002

Judgement Date : Friday 21st of February 2003

Manokaran alias Ramamoorthy .....Appellant(s)
Versus
M.Devaki .....Respondent(s)

Hindu Marriage Act (XXV of 1955), Sec.24 — Petition for divorce
pending — Wife filing a petition for grant of interim maintenance
and litigation expenses — The party making the claim should not have
sufficient independent income.

The provision would show that for grant of maintenance pendente
lite,the party should not have sufficient independent income for
her/his support. In other words, if it is found that the applicant
has sufficient income for his/her support, no amount can be allowed
as maintenance pendente liteas per Sec.24 of the Act. [Para.
5] `Under Sec.24 of the Hindu Marriage Act, maintenance pendente
lite can be awarded only if the party asking for maintenance shows
he/she has no sufficient independent income'.


Cases Referred
Kumaresan v. Aswathi : [2002] 2 M.L.J. 760



N.Manokaran, for Petitioner.

V.Shivakumar, for P.B.Ramanujam, for Respondent.

The Court made the following

ORDER: Aggrieved by the order of the Principal Family Court, Madras
dated 25.7.2002, made in I.A. No.1058 of 2001 in O.P. No.1310 of
2000, granting interim maintenance at the rate of Rs.750 per month
and litigation expenses of Rs.1,500, the husband has preferred the
above revision under Art.227 of the Constitution.

2. The petitioner/ husband has preferred the said O.P. for divorce
under Sec.13(1)(1a) and (1b) of the Hindu Marriage Act. Pending the
said petition, the wife/ respondent herein has filed I.A. No.1058 of
2001 claiming interim maintenance at the rate of Rs.2,000 per month
and Rs.5,000 towards litigation expenses under Sec.24 of the Hindu
Marriage Act. The said application was resisted by the husband
stating that she is working in a private concern and drawing a
salary of Rs.4,500 per month. It is also stated that he is earning
only Rs.2,000 per month. Before the Family Court, salary certificate
of the husband dated 10.6.2002 has been marked as Ex.R-1. Based on
Ex.R-1, after finding that he is earning Rs.70 per day by working in
Senthil Auto Garage, the Family Court has concluded that the wife is
entitled to interim maintenance at the rate of Rs.750 per month from
the date of petition till the disposal of O.P. and also awarded
Rs.1,500 towards litigation expenses.

3. The only question to be considered in this revision is whether
the wife/ respondent herein has made out a case for interim
maintenance in terms of Sec.24 of the Hindu Marriage Act.

4. Mr.N. Manokaran, learned counsel for the petitioner, after
drawing my attention to Sec.24 of the said Act and the admission of
the wife in the counter statement filed in the main petition viz.,
O.P. No.1310 of 2000, would contend that since she is earning
sizeable income and in view of the fact that the petitioner/ husband
is getting only Rs.2,000 per month, the Family Court has committed
an error in granting interim maintenance and litigation expenses.

5. There is no dispute that the petition has been filed by the
respondent/ wife claiming maintenance pendente lite and expenses of
the proceedings under Sec.24 of the Hindu Marriage Act. Section 24
reads thus:

"24. Maintenance pendente lite and expenses of proceedings: Where in
any proceedings under this 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 proceeding, 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."

The above provision would show that for grant of maintenance
pendente lite, the party should not have sufficient independent
income for her/his support. In other words, if it is found that the
applicant has found sufficient income for his/her support, no amount
can be allowed as maintenance pendente lite as per Sec.24 of the
Act. While construing the very same provision in similar
circumstance, A.S. Venkatachamoorthy, J., in Kumaresan v. Aswathi,
(2002)2 M.L.J. 760 has arrived a similar conclusion. Now I shall
consider whether the respondent/wife has any independent income
which is sufficient for her survival and for the proceedings. In
para 10 of the counter statement filed by the wife in O.P. No.1310
of 2000, she herself admitted that,

.....Now the respondent (wife) had got her present job in private
body and running her life with the salary and staying with her
brother...". The above statement shows that she is employed in a
private concern, getting salary and staying with her brother. In the
application for interim maintenance, the husband has filed a counter
affidavit wherein he has specifically stated that his wife is
drawing a salary of Rs.4,500 from a private concern. In para 5 of
the counter affidavit it is stated that,

"5. The respondent denies all the allegations in para 5 and put the
petitioner strict proof of the same. The averment about I am
liberally suffering without financial assistants is put to strict
proof since this petitioner is working in the organization Kumari
Neruvanam at No.40, Venkat Narayanan Road, T.Nagar, Chennai-600 017,
and drawing a salary of Rs.4,500 she also disclosed this before the
All Women Police Station, Thousand Lights,and this petitioner also
admitted in her counter statement that she is working in private and
running her life. But contradictory to her statement in counter
statement now this petitioner come forward with a plea that she is
without financial assistance. This petitioner is working as typist
and main organizer for a programme in Neingalum Pachalar Agalam a
programme telecaste in Raj T.V. during Sunday 8.00 a.m., from her
company Kumari Neruvanam. The averment about that this respondent is
owner of the "Venkataswari Turning Works" at Muthumariamman Koil
Street, Anna Nagar, Chennai-600 040 is put to strict proof since
this respondent is not the owner of the said company and A.
Loganathan is the owner of the said Turning works and this
respondent is working in Senthil Auto Garage at Annai Sathya Nagar,
Anna Nagar (East) Chennai-600 102, and drawing a salary of Rs.2,000
and this respondent need not to give any monetary assistance to the
petitioner for her claim."

The above averment shows that the petitioner herein husband is
working in Senthil Auto Garage, Annai Sathya Nagar, Chennai-102 and
drawing a salary of Rs.2,000 per month. Likewise, it is also seen
that the respondent herein wife is working in Raj T.V. and drawing a
salary of Rs.4,500. Though the said aspect has not been
substantiated, I have already referred to the admission of the
respondent herein in her counter statement filed in the main O.P.
No.1310 of 2000 wherein she admitted that she secured a private job
and is getting salary and staying with her brother. On the other
hand, it is established particularly from Ex. R-1, the petitioner
herein is getting only Rs.70 per day or Rs.2,000 per month by
working in Senthil Auto Garage. I have already referred to the
language used in Sec.24 which makes it clear that for grant of
maintenance pendente lite the party should not have sufficient
independent income for her support. In the light of the materials
available, particularly the admitted case of the respondent/ wife,
she is employed in a private Satelite T.V. and earning for her
livelihood staying with her brother, it cannot be construed that she
is not having sufficient independent income. The Family Court lost
its sight to consider the above material aspect.

6. In the light of what is stated above, the impugned order of the
Principal Family Court dated 25.7.2002, made in I.A. No.1058 of 2001
in O.P. No.1310 of 2000 is set aside and the civil revision petition
is allowed. No costs. It is made clear that pending the divorce
proceedings at any point of time if the applicant/ wife establishes
that she has no sufficient independent income for her support, it is
open to her to claim maintenance pendente lite. Consequently, C.M.P.
No.16264 of 2002 is closed.

R.S. ----- Petition allowed.

A Very useful judgement