Citation Codes

Equivalent Citations

citation codes

Case Number

Civil Revn, No. 33 of 1981

Advocates

C.M. Oberoi with Mrs. Avnish Ahlawat
V.K. Agnihotri

Judges

SULTAN SINGH, J.

Acts

S. 24 of the Hindu Marriage Act (hereinafter referred to as the Act)
S. 6 of the Employees Provident Funds Act, 1952.

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Smart Summary

Analytical Summary of the Opinion: Civil Revision Petition under Section 115, Civil P.C.

Factual and Procedural Background

This revision under Section 115 of the Civil Procedure Code challenges an order dated 1 December 1980 of the Additional District Judge, Delhi. That order directed the respondent-husband to pay the petitioner-wife Rs. 1,000 as litigation expenses and Rs. 450 per month as maintenance, with effect from 30 September 1980 — the date on which the petitioner made an application under Section 24 of the Hindu Marriage Act in proceedings for dissolution of marriage by a decree of divorce under Section 13 of the Act.

The parties were married according to Hindu rites on 27 January 1979 and had lived together in Madras. The respondent was employed by I.T.C. Hotels and had been transferred from Madras (Hotel Chola) to Jammu (Asia Hotel). The petitioner-wife stated in her Section 24 application that she possessed share certificates valued at Rs. 2,000, had no other source of income, sought Rs. 5,000 as litigation expenses and Rs. 2,000 per month as maintenance.

The trial court found the petitioner unable to support herself, assessed her income from the share certificates at only around Rs. 100–150 per annum, and found that the respondent's net monthly salary was Rs. 1,137. Aggrieved, the petitioner filed the present civil revision.

Legal Issues Presented

Whether the petitioner (wife) has any independent income sufficient for her support and to meet litigation expenses within the meaning of Section 24 of the Hindu Marriage Act.
Whether the trial court correctly computed the respondent's disposable income (after permissible deductions) and, on that basis, correctly fixed maintenance at Rs. 450 per month and litigation expenses at Rs. 1,000.
What items of deduction (e.g., income tax, provident fund contributions, life insurance premium, boarding charges, maintenance to parents) are to be treated as compulsory/necessary and deducted from gross income when determining disposable income for Section 24 orders, and how the court should treat optional deductions and possible mala fides.

Arguments of the Parties

Petitioner's Arguments

The petitioner asserted that she possessed only a few share certificates of value Rs. 2,000 and had no other income.
She claimed Rs. 5,000 as litigation expenses and Rs. 2,000 per month as maintenance.
Learned counsel for the petitioner relied on the I.T.C. Ltd. annual report for the year ending 31 March 1981 showing gross remuneration paid or payable to the respondent of Rs. 39,774 (a fact not denied by the respondent).
For litigation expenses the petitioner argued that witnesses needed to be examined from Madras and associated expenses would be incurred in proving or disproving allegations.

Respondent's Arguments

The respondent accepted the annual gross figure shown in the I.T.C. report but contended his actual carry-home (net) monthly salary was Rs. 1,137.
He stated that Rs. 318 is deducted at source for income tax and Rs. 160 for Provident Fund; Provident Fund contribution was said to be compulsory under Section 6 of the Employees’ Provident Funds Act, 1952.
He paid life insurance premium amounting to Rs. 720 per annum and described this as necessary to prevent policy lapse.
Boarding charges of Rs. 400 per month were deducted by the employer; given employer-provided accommodation at Jammu, the respondent said he had previously received house rent allowance (Rs. 600 at Madras) which was not now payable.
The respondent contended that he pays (or is under obligation to pay) maintenance to his parents (claimed at Rs. 350 per month) under Section 125 Cr.P.C., although the trial court did not accept that this was actually paid.
The respondent asserted that many components shown in the employer's gross cost (e.g., retirement benefit, medical allowance, leave travel allowance, bonus) were not directly received as cash by him and thus his real disposable income was limited.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Smt. Preeti Archana Sharma v. Ravind Kumar Sharma, AIR 1979 All 29	Interpreting Section 24: "support" (not "standard" or "status"); need for balance in parties' living standards; necessary expenses like insurance premium or provident fund should be deducted from gross income to arrive at net income.	Used to emphasize that courts must aim for a reasonable parity in living standards and to support the proposition that necessary deductions (e.g., PF, insurance, tax) can be deducted when determining disposable income.
Kashinath Sahu v. Smt. Devi, AIR 1971 Orissa 295	Courts must consider factors such as family status, earnings, commitments of the husband, and what the wife requires to maintain herself; avoid awarding maintenance that produces luxury or makes judicial separation profitable.	Cited to underline the multifactorial approach to quantum of maintenance and the caution against awards that would keep the wife in luxury or impede reconciliation.
Bhagwan v. Smt. Kamla Devi, AIR 1975 SC 83	For maintenance (in that case under Cr.P.C.): court must find what the wife needs to maintain a standard of living that is modest and consistent with family status—not luxurious nor penurious.	Applied to support the principle that maintenance orders should aim to secure a modestly consistent standard of living with the family's status.
Usha v. Sudhir Kumar, (1974) 76 Pun LR 195	Disposable income is arrived at by deducting from gross income only items over which the respondent has no control (e.g., direct taxes). Held that household running expenses, rent, domestic help, life insurance or voluntary savings should not be deducted by some courts.	Used to demonstrate divergent judicial views (Allahabad vs. Punjab & Haryana) on whether PF and life insurance premiums should be deducted. The court discussed these differences and declined to adopt an absolute rule, instead advocating case-by-case assessment focused on whether deductions are compulsory/necessary or optional and whether there is mala fide intent.

Court's Reasoning and Analysis

The court set out a structured approach mandated by Section 24 of the Hindu Marriage Act:

First determine whether the applicant (wife or husband) has any independent income sufficient for personal support and for meeting litigation expenses. If the applicant lacks such income, the court may order the other spouse to pay temporary maintenance and litigation expenses during pendency of the proceedings.
Maintenance and litigation expenses under Section 24 are temporary (during the proceedings) and the statute requires the court to order such monthly allowance as it deems reasonable having regard to the parties' incomes; the statute does not prescribe a strict mathematical proportion of income.
To decide the quantum, the court must determine the opposite party's disposable income by starting from gross income, deducting necessary/compulsory expenses and deductions, and leaving a reasonable balance for maintenance and litigation. Deduction categories include compulsory items (e.g., income-tax, perhaps compulsory PF) and optional items; the court must assess whether particular deductions are bona fide or a result of litigation-driven attempts to deprive the applicant.
The court reviewed authorities showing varying approaches on whether provident fund and life insurance premiums should be deducted. Rather than adopting a rigid rule, the court held that deductions must be assessed on facts: PF contribution may be compulsory or optional; life insurance premium paid prior to disputes should normally be deductible unless mala fide conduct is alleged.
Applying these principles to the facts: the trial court had found the wife's income from shares negligible (Rs. 100–150 per annum) and the respondent's net pay as Rs. 1,137 per month. The respondent's pay structure as per his affidavit was broken down (consolidated salary, allowances, retirement benefit at 34% of consolidated salary, medical allowance, leave travel, bonus), but the practical question was the respondent's actual monthly carry-home amount.
The respondent admitted deductions from gross: income-tax Rs. 318/month and PF Rs. 160/month (PF contended to be compulsory). He also incurred Rs. 400/month boarding charges deducted by the employer and paid life insurance premium Rs. 720 per annum. On the respondent's case, his net payable monthly salary was Rs. 1,137; adding the boarding charge component of Rs. 400 (which the court treated as part of disposable income) produced a disposable income of Rs. 1,537 per month.
The respondent's claim of paying Rs. 350 per month to parents was not accepted by the trial court. The court observed that whether maintenance to parents was actually paid was immaterial to the respondent's obligation under Section 24, but acceptance of such deductions depends on evidence and bona fides.
Given the disposable income of Rs. 1,537 as computed on the respondent's case, the trial court's award of Rs. 450 per month maintenance and Rs. 1,000 for litigation expenses was held to be within a reasonable assessment of what the respondent could be directed to pay. The appellate/revisional court found no ground to increase those amounts or to disturb the trial court's approach.

Holding and Implications

Holding: The revision petition under Section 115 Civil P.C. was dismissed. The impugned order dated 1 December 1980 directing the respondent to pay Rs. 1,000 as litigation expenses and Rs. 450 per month as maintenance (effective 30 September 1980) was not interfered with. No order as to costs was made.

Implications:

The decision affirms the trial court's fact-driven calculation of disposable income and its award of temporary maintenance and litigation expenses under Section 24 of the Hindu Marriage Act in these circumstances.
The opinion emphasizes a flexible, case-by-case approach to computing disposable income: necessary and compulsory deductions (income tax, genuinely compulsory PF contributions, premium necessary to prevent lapse) may be deducted, while optional deductions and deductions that may have been made to frustrate Section 24 claims must be scrutinized for bona fides.
The court explicitly rejected the adoption of any hard-and-fast rule (for example, always excluding or always including PF and life insurance premiums) and instead required courts to examine the nature of each deduction and the factual context. No new legal precedent altering existing principles was announced; the decision applies those principles to the facts and upholds the trial court's order.

Final procedural disposition in the opinion: "Petition dismissed."

Show full summary ...

Sushma Khanna v. Suresh Khanna .

This Civil Revision Petition under S. 115 of the Civil P.C is directed against the order of the Additional District Judge, Delhi dated 1st Dec., 1980 directing the respondent-husband to pay a sum of Rs. 1,000 as litigation expenses to the petitioner-wife and Rs. 450 per month as maintenance for her support with effect from 30th Sept., 1980, the date on which she made an application under S. 24 of the Hindu Marriage Act (hereinafter referred to as ‘the Act’) in proceedings for dissolution of marriage by a decree of divorce under S. 13 of the Act.

2. Briefly stated the facts are that the marriage between the parties was solemnised according to Hindu rites at Delhi on 27th Jan., 1979. They lived together at Madras. The respondent is employed in I.T.C Hotels. Previously he was posted at Hotel Chola, Madras but now he is posted at Jammu in Asia Hotel. The petitioner-wife in her application under S. 24 of the Act, alleges that she has been in possession of few share certificates of the value of Rs. 2,000 and that she has no other source of income. She has claimed Rs. 5,000 as litigation expenses and Rs. 2,000 per month as maintenance. The trial court has held that the petitioner-wife is not in a position to support herself and that her income from the share certificates is Rs. 100 or Rs. 150 per annum and she has no other source of income. As regards the respondent-husband the trial court has concluded that his net monthly salary was Rs. 1137. The petitioner-wife feeling aggrieved has filed this revision.

3. Section 24 of the Act reads as under:

“Where in any proceeding 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.”

4. For determination of the amount payable first it has to be determined whether the applicant has any independent income sufficient for her support and to meet the litigation expenses. If it is held that he or she has no independent income, an order may be passed providing for maintenance and litigation expenses. The maintenance and litigation expenses are not in the nature of a permanent arrangement. It is only a temporary arrangement during the pendency of the proceedings under the Act. The amount on account of maintenance and litigation expenses has to be determined after taking into consideration the source of income of the opposite party. S. 24 of the Act requires the court to give a direction for monthly allowance such sum as it considers to be reasonable. Thus the statute does not require the court to make any mathematical calculation to arrive at any definite proportion of income of the opposite party for payment on account of maintenance or litigation expenses. The gross income of the opposite party has to be kept in mind for judging the standard of living. From the gross income one has to deduct the necessary expenses. The expenses may be compulsory or optional. Similarly there are various types of deductions made from the salary of an officer. The deduction may also be compulsory or optional. Compulsory expenses and deduction are to be deducted from the gross income and out of the balance a reasonable amount should be fixed for payment of the maintenance and the litigation expenses. In other words, one has to determine the disposable income of the opposite party.

5. In Smt. Preeti Archana Sharma v. Ravind Kumar Sharma, AIR 1979 All 29 it has been observed, “S. 24 uses the word ‘support’ and does not use the words ‘standard’ or ‘status’. It is clear that the court must keep in view that one cannot live like a Lord and the other like a maid nor can one live like a princess and other like a servant. There must be some balance. It cannot be that while one lives in penury the other lives in grand style.” It has been further observed that if a party has to pay insurance premium or provident fund or income-tax, those are necessary expenses which must be ducted from the gross-income to arrive at a net income. In Kashinath Sahu v. Smt. Devi, AIR 1971 Orissa 295 it has been observed, “in determining the quantum of maintenance, the courts have to take into consideration several factors like the status of the family, the earnings and the commitments of the husband and what is required by the wife to maintain herself”. It has been further observed by Orissa High Court, “the court should not give maintenance to the wife which would keep her in luxury and would make judicial separation profitable and also impede any future changes of reconciliation”. In Bhagwan v. Smt. Kamla Devi, AIR 1975 SC 83 which was a matter regarding maintenance of the wife under S. 488 of the Cri. P.C, the Supreme Court observed that the court has to find out as to what is required by the wife to maintain a standard of living which is neither luxurious nor penurious, but is modestly consistent with the status of the family. In Usha v. Sudhir Kumar, (1974) 76 Pun LR 195 it has been observed, “disposable income is arrived at by deducting from the gross income only such items of expenses over which the respondent has no control of any kind such as direct taxes like income-tax etc.” It hay been further observed that “in working out the disposable income, no deduction should be made from the gross income in respect of running the household of the respondent, paying house rent or electricity or water charges, paying the salaries of his domestic servants, payment by him of life insurance premium or for voluntary savings such as provident fund or purchase of National Savings Certificates etc.” Thus Allahabad has taken a view that Provident Fund and life insurance premium should be deducted to determine the disposable income while Punjab and Haryana High Court has taken the view that life insurance premium or the provident fund should not be taken into consideration while calculating the disposable income. For determination of the amount of maintenance it should be determined what is the carry home salary of the person concerned so that a reasonable amount for payment may be determined. At the time of determining the carry home salary the amounts of deduction or expenses incurred by the opposite spouse which are optional may also be taken into consideration. Further it must also be seen whether the optional expenses or deductions were made as a result of the litigation between the parties with a view to deprive the applicant under S. 24 of the Act. The bona fides of the parties are taken into consideration. There cannot be any hard and fast rule that the Provident Fund and life insurance premium should not be taken into consideration while determining the disposable income. The contribution to Provident Fund may be optional or compulsory. Similarly if the amount of life insurance premium was being paid prior to the disputes between the parties, payment of premium ‘should be taken into consideration and deducted from the gross income to determine the disposable income unless some mala fides are alleged.

6. Learned counsel for the petitioner submits that according to the report and accounts for the year ending 31st March, 19811 of I.T.C Ltd. the gross remuneration paid or payable to the respondent-husband was Rs. 39,774.00. This fact is not denied by the respondent but he submits that his carry home salary is only Rs. 1137 per month and that a sum of Rs. 400 per month is deducted by his employer on account of boarding charges. The parties had filed affidavits in support of their respective contentions and both were cross-examined. It is stated that at Madras the respondent-husband was getting Rs. 600 per month as house rent allowance and that he had not been getting any such allowance at Jammu as accommodation by his employer had been provided in the hotel itself on payment of Rs. 200 per month. The respondent in his affidavit has given the break up of Rs. 39,774 mentioned in the I.T.C Annual Report as under :—

(a) Consolidated salary Rs. 1600/- per month Personal allowance Rs. 65/- per month Rent allowance Rs. 400/- per month City allowance Rs. 150/- per month Total Rs. 2215/- (b) Retirement benefit at 34% of the consolidated salary (c) Medical allowance Rs. 175/- per month (d) Leave Travel allowance Rs. 175/- per month (e) Bonus Rs. 135/- per month

This break up appears to be correct but the question is what amount the respondent has been carrying home in fact every month. His case is that Rs. 318 is being deducted at source on account of income-tax and Rs. 160 as Provident Fund. It has been submitted by the learned counsel for the respondent that Provident Fund contribution is compulsory under S. 6 of the Employees’ Provident Funds Act, 1952. Thus the deductions on account of income-tax and provident fund are compulsory. The respondent also says that he has been paying life insurance premium at Rs. 720 per annum. This amount is also not optional. If payment of premium is not made policy may lapse. It is thus a necessary expenses. The amount of Rs. 400 per month deducted on account of boarding charges can be included towards disposable income. According to the pay slip and salary certificate the net payable monthly salary is Rs. 1137. Adding the sum of Rs. 400 on account of boarding charges the monthly disposable income would be Rs. 1537 only. The respondent further states that he pays Rs. 350 per month as maintenance to his parents. The trial court has not accepted his version. Learned counsel for the respondent however submits that the respondent is under an obligation to maintain his parents under S. 125 of the Cr. P.C Whether any maintenance is paid or not to the parents is immaterial, but he is under an obligation to maintain them if they are unable to maintain themselves. Considering the facts of this case the trial court has rightly determined the monthly maintenance of Rs. 450 out of the disposable income of Rs. 1,537. There is no ground to increase the monthly maintenance.

7. As regards litigation expenses, a sum of Rs. 1,000 was awarded by the trial court. Learned counsel for the petitioner submits that the wife has to examine witnesses from Madras as prior to transfer both were living there and that to disprove various allegations she is required to produce witnesses from Madras. It is true that witnesses from Madras may be necessary but out of the disposable income Rs.. 1,537 a sum of Rs. 1,000 as litigation expenses is reasonable. The respondent with the said amount of disposable income cannot be directed to pay more than Rs. 1,000. The respondent states that he does not physically get any portion of 34% of the consolidated salary on account of retirement benefit, Rs. 175 on account of monthly medical allowance, any amount of leave travelling allowance or the bonus. His case is that the yearly gross remuneration may be Rs. 39,774 incurred by his employers on him as shown in the Annual Report for the year ending 31st March, 1980 but he is getting Rs. 1137 only as his net monthly salary besides accomodation for residence and boarding in the hotel.

8. There is no ground to interfere with the impugned order under S. 115 of the Civil P.C The revision petition is dismissed. No order as to costs.

Petition dismissed.

Sushma Khanna v. Suresh Khanna .

Analytical Summary of the Opinion: Civil Revision Petition under Section 115, Civil P.C.

Factual and Procedural Background

Legal Issues Presented

Arguments of the Parties

Petitioner's Arguments

Respondent's Arguments

Table of Precedents Cited

Court's Reasoning and Analysis

Holding and Implications

Sushma Khanna v. Suresh Khanna .

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