Deshpande, J.:— This Letters Patent Appeal by the husband arises out of a Notice of Motion, for fixation of interim maintenance under section 24 of the Hindu Marriage Act of 1955, taken out by the wife in her Matrimonial Petition No. 302 of 1976 for restitution of conjugal right. She claimed Rs. 600 per month on the basis that she was unemployed and the husband was earning Rs. 1200 per month. She also claimed some amount towards costs. The husband asserted in reply that he was earning Rs. 720 per month, and not Rs. 1200. He also alleged that the wife was employed as a teacher and was earning Rs. 450 per month. He further pleaded that he has to support his father, mother, sister and brother, and that his father's income was meagre. The wife then filed a second affidavit alleging that the father was earning Rs. 1,500 per month and the brother and the sister were earning members and that the family was running dry-fruit business. The husband, however, denied all this but did not indicate what father's income was.
2. A Judge of the City Civil Court allowed the application and fixed such maintenance at Rs. 145 per month from July, 1976 and Rs. 125 towards the costs of the suit. He thought that the wife could claim only 1/5th of the net income of the husband which he found to be Rs. 720 per month. The wife filed an appeal against the said order in this Court and pressed for enhancement of the said quantum of interim maintenance. Hajarnavis J. raised the quantum of maintenance from Rs. 145 to Rs. 350 per month and that of costs from Rs. 125 to Rs. 500. In his opinion, the amount of Rs. 145 per month was too inadequate for a young educated girl living in Bombay in these days of high cost of living. He also found that the husband has failed to prove what his other liabilities were. The Letters Patent Appeal is directed against this judgment.
3. Mr. Kapasi, the learned Advocate appearing for the appellant, raised two points for our consideration. He says that the wife under no circumstances can claim more than 1/5th of the net income of the husband. He replied on judgments of other High Courts, i.e in the cases of Mukan Kunwar v. Ajeetchand . AIR 1958 Raj. 322., Prasana Kumar v. Sureshwari . AIR 1969 Orissa 12. and Smt. Sushila Devi v. Dhani Ram . AIR 1965 H.P 12.. He, secondly, contends that such as enhancement in the amount of maintenance will prevent the husband from maintaining his parents, brother, etc. within his monthly income of Rs. 720 which is his only income as found by both the Courts.
4. Coming to the first contention of Mr. Kapasi, he relies on the practice followed in the City Civil Court in this behalf, which in turn is claimed to have been based on the rulings cited by him. The learned Judges in those cases have, no doubt, relied on the corresponding provision of section 36 of the Indian Divorce Act of 1869, the proviso of which disentitles the wife from claiming interim alimony in excess of the 1/5th of the net income of the husband. In the absence of any indication in this behalf in the Hindu Marriage Act, 1955, the learned Judges thought it proper to rely on this as a guiding factor. We are unable to trace any rational basis for this rule which prevents the wife from claiming more than 1/5th, even when her needs, and capacity of the husband, warrant awarding larger amount. This amounts almost to be a rule of the thumb. Such a provision in the Act of 1869 may have been based on the then notions and concepts, as to a woman's status and position in the society and her claims against the husband. The provisions of the Hindu Marriage Act enacted in 1955 are, on the other hand, based on the recognition of the wife as equal partner of her husband in life. This is just in keeping with the guarantee of equality to every citizen afforded by the Constitution. It does not depend on whether the wife chooses to devote her talents to household work or to sphere outside. This Act does not permit denying her right to share the husband's enarnings, like his fortunes or misfortunes, on the footing of equality. This Act enables even the husband to claim maintenance from the wife when former has no source of subsistance and the latter has. Such a rule, apart from being unreasonable and irrational, also cuts at the root of such equality. Such a rule also militates against the reasonableness of approach conceived under this section. With respect, we are unable to agree with this approach of the learned Judges nor can we uphold this practice adverted to by Mr. Kapasi, if there is any.
5. This by itself will not enable her to claim half of even the net income of the husband. Claims of some others on this income arising out of either legal or social obligations shall have to be taken into account. Our Society is based essentially on family system in which earning members have to maintain their aged parents and other dependents, source of whose liability may not strictly be legal. The legal obligation of the husband to earn and maintain the wife itself is in the ultimate analysis, the creature of this social concept. Wife's claim for bare need's including shelter may in given cases require ignoring the mere social as against legal obligations. Some members may require special treatment. That is why section 24 speaks of fixing a “resonable amount”. Reasonableness itself is no doubt a relative term. Essentially the question is one of balancing several competing claims. Ordinarily reasonableness would require ensuring the receipt of the same amenities and comforts by the wife, as she was getting when residing with the husband as a member of his family minus the reduction necessitated by separation and creation of two establishments. This can be achieved by providing for wife's separate residence and dividing the balance of the husband's net income equally between all the members. In the event of any one or more others of the family being earning members, their income can be taken into account for reducing the husband's liability towards them, even though wife herself may not be able to claim any share therefrom. Thus the problem does not admit of any inflexible formula. These are a few of the many relevant factors. All this, however, will not be relevant if the wife is disabled from claiming such maintenance due to any legal impediment.
6. This is a case where the husband is staying as member of his father's family which consists of (1) the father, (2) mother, (3) brother and (4) sister, and (5) the husband himself. The wife was staying as a member of the said family till she left or was compelled to leave the same. Now she is residing with her father. This dispenses with the need to provide for any shelter. The wife's allegation as to the husband's income of being Rs. 1250/- cannot be accepted in view of the employer's certificate produced by him. His gross income is Rs. 950/- per month and the net income is found by both the Courts to be Rs. 720/- per month. Her allegation about the family having any dry-fruit business, and the brother and sister being earning members shall have to be rejected in view of the husband's emphatic denial and inability of the wife to furnish any particulars. Her allegation that the father of the husband is earning Rs. 1,500 per month shall have to be accepted. The husband has denied this. But he has not denied that he serves as an Education Officer in the Corporation. He has not cared to indicate what was his income, if not Rs. 1500. The husband's bare assertion in paragraph 14 in rejoinder that his total per capita income is Rs. 265 cannot be accepted without detailed particulars. His allegation that the wife earns Rs. 450 per month also is liable to be rejected in view of the wife's denial. Certificate produced by her only shows that she was employed only for 15 days. Total income of the family is thus Rs. 1500 Plus Rs. 720 = Rs. 2,220. The share of each of six members in the income thus comes to Rs. 370. The amount of maintenance fixed by the learned Judge in appeal, of Rs. 350 does not appear to be thus excessive or objectionable in any manner. The amount of Rs. 370 may get reduced to Rs. 350 if the unspecified necessary deductions in father's salary are taken into account. Additional expenses for the education of the brother and the sister could have been taken into consideration. However, no details of particulars are specified by the husband.
7. Some capital is made out of the fact that the certificate of the Education Department of the Corporation produced by the wife indicates that the wife did not turn up. Mr. Kapasi relies on its implication and says that the wife did not deliberately avail of the job. Apart from the propriety of raising any such inference from these mere words in the certificate, the Act of 1955 does not specifically cast any obligation on the wife to earn and reduce the quantum of maintenance. The Act only contemplates its reduction if the wife is actually earning. The capacity of the wife to earn may become relevant where the husband himself is unable to earn or he has to feed many mouths out of his meagre earning.
8. Mr. Kapasi then contends that the interlocutory order passed, on notice of motion, is not appealable. Now, section 28 of the Hindu Marriages Act provides for appeals. It contemplates appeals against decrees or orders under section 25 or 26 of the Act. The impugned order is neither a decree nor an order under section 25 or section 26 of the Act. This order, therefore, does not appear to be appealable. Mr. Khambatta, the learned Advocate for the respondent, could not show how the appeal against this order was maintainable. However, this point can have no significance in this case. The appellant did not care to raise this point before the learned single Judge. This may not prevent him from raising it before us. It is, however, difficult to hold that the wife was without remedy and the High Court could not have found its way to interfere. The High Court's jurisdiction under Article 226 or 227 of the Constitution or section 115 of the Code of Civil Procedure is wide enough to enable it to interfere with the impugned order. The point involved in this case could have easily enabled the wife to invoke such powers of the High Court in this case. Reliance by the learned trial Judge on “1/5 net income rule” as conceived in section 36 of the Indian Divorce Act, 1869, indicates his failure to apply his mind to the requirements of the 1955 Act and may have been construed as a failure to exercise its jurisdiction by the Court. The contention of Mr. Kapasi, therefore, shall have to be rejected, as upholding thereof cannot necessarily result in restoring the order of the City Civil Court.
9. Mr. Khambata raised a preliminary objection to the maintainability of this Letters Patent Appeal. His contention is that the order fixing the interim maintenance under section 24 of the Act does not amount to “judgment” within the meaning of clause 15 of the Letters Patent. In the view that we have taken, it is unnecessary to decide this preliminary point. We may, however, indicate that the question as to the pendente lite maintenance does raise a controversy independently of the suit and the decision on this question concludes the controversy finally, as far as the parties are concerned. Looked at from this point of view, it should be difficult to hold that the Letters Patent Appeal is not maintainable.
10. The appeal is accordingly dismissed with costs.
Appeal dismissed.