(1) By this revision u/S. 115 of the Civil Procedure Code, 1908, the petitioner has challenged an order dt. 20.9.1988 made by Ms. Rekha Sharma, Addl. D.J. by which she has directed the respondent husband to pay to the petitioner wife a sum of Rs. 150.00 p.m. for maintenance pendente life and Rs. 250.00 towards expenses of the proceedings.
(2) The petitioner wife filed an application u/S. 24 of the Hindu Marriage Act claiming a sum of Rs. 1,500.00 p.m. as maintenance and a sum of Rs. 5,500.00 to meet expenses of the proceedings initiated by the husband against her u/S. 13 of the Hindu Marriage Act. In the said Application it was averred that the wife was educated only up to 8th class, that she had no income of her own and that she was living with her father. It was alleged that the husband is employed in Oriental Insurance Company, that he was getting about Rs. 2,150.00 p.m. as pay including conveyance charges and allowances etc. and that he had installed four machines in his house for manufacturing rubber and plastic goods and that he had an income of about Rs. 1,500.00 p.m. from this source also. Thus, on the basis of total income of Rs. 3,650.00, she claimed a monthly payment of Rs. 1,500.00 as maintenance pendente lite.
(3) In reply, the husband denied the averments made by the wife with regard to his salary and other income. He pleaded that he was employed as a peon, that his basic salary was Rs. 450.00 p.m. and he got allowances amounting to Rs. 646.00 out of which a total sum of Rs. 146.00 was deducted under various heads. In answer to the allegation that four machines were installed at his house, be pleaded that two machines arc lying in dilapidated condition and are not working, that no plastic goods or rubber goods were being prepared and that he had no source of income whatsoever besides his salary. Further, he claimed that he had to support bids aged father and mother, that his father had nearly lost his right eye sight and he was unable to work, and that he had also to support his younger sister and brother who were studying in the 11th and 8th class respectively. In these circumstances, it was alleged that he was living from hand to mouth in a rented house.
(4) The trial court found that there was no material on record to substantiate the claim of the wife that the respondent has an income of Rs. 1,500.00 p.m. from four machines, that the salary certificate showed that the husband was getting a total salary of Rs. 1,096.60 p.m. and that his net income, after allowing compulsory deductions, would be Rs. 1,000.00 p.m. On this basis, taking into account the obligation of the husband to maintain his parents, the trial court directed the husband to pay to the wife a sum of Rs. 150.00 p.m. towards maintenance pendente lite from the date of her application.
(5) Learned counsel for the petitioner has attacked the impugned order on the ground that the trial court has unjustifiably excluded income from the machines admittedly installed in the house of the husband and that the Court has not indicated any principle or reason for computing the sum of only Rs. 150.00 for the monthly payment.
(6) With regard to the alleged income from the business of manufacturing rubber and plastic goods, the learned counsel has relied upon Renu Jain vs. Mahavir Prashad. Air 1987 Delhi 43 and Chitra Sengupta vs. Dhruba Jyoti, , to contend that the wife bad stated sufficient particulars of the machines and the business, that it was incumbent on the husband to produce the necessary evidence and the onus was on him to show that he had no income from that source.
(7) In the case of Renu Jain (supra), this Court found, on the basis of evidence on record, that the husband was a member of the joint family, that the extensive business, particulars of which had been stated by the wife, was being carried on as joint family business and that the husband had tried to suppress the income from that business. The husband's contention that the family was not a joint family and the business was not joint family business was disbelieved. Further, on the basis of the evidence on record, this Court found that the monthly income of the husband could be easily assessed. The amount of maintenance awarded to the wife was, therefore, enhanced.
(8) In Chitra Sengupta's case (supra), the spouses were living apart for a considerable long period, the wife staying in India and the husband in the U.K. In such a case, the Calcutta High Court pointed out, "monthly income of a husband may not very often be within the knowledge of the wife", and that "the amount of the husband's income would be within the special knowledge of the husband and when the issue before the Court is the amount of such income, the onus, u/S. 106 Evidence Act, would be on the husband to disclose the same and if he fails to do so without any good reasons, the Court would be entitled to presume against him and to accept the allegations of the wife as to the amount of income derived from such reasonable sources as would be available to her. More so where, as here, the husband does not even deny on oath the correctness of the amount alleged by the wife to be his income but only seeks to take shelter behind legal technicalities".
(9) In the present case, however, marriage between the spouses was solemnised in May 1985 and they fell apart in not too distant a past and they are both residing in Delhi. Further, the wife merely stated an imaginary figure in her application as the income from the said machines. She simply alleged that the respondent has "installed four machines for manufacturing of Rubber and Plastic goods". The husband has, no doubt, admitted that two machines are lying there but he has explained that they are "in a dilapidated condition and are not workable". He has pleaded : "No plastic goods or Rubber goods are prepared" and "Besides his salary petitioner has no source of income whatsoever". The husband has categorically denied the facts alleged by the wife. Unfortunately, even a preliminary enquiry was not held in this case. There is nothing on record to show that the two machines are in a working condition or that the business of manufacture of any goods is being carried on or that these machines are yielding any income to the husband. In such a case, the husband could really produce no evidence, as there would be none, to show no activity or income with regard to the said machines. This apart, the husband has explained in a reply, duly supported by an affidavit, to an application for stay filed in this Court, that the machines belonged to his father, that they are lying idle and are not in workable condition as his father is very old, weak and is unable to work the machines now. In these circumstances, I see no reason to disbelieve the case of the husband that he has no income from these machines.
(10) On the basis of income from salary as a peon in the Oriental Insurance Company, there is not much that can be said about the status of the respondent.
(11) The criteria for fixing maintenance pendente lite is not of mathematical analysis ; nor is there any hard and fast rule for determination of the quantum of maintenance. The monthly allowance may vary between 1/3rd to l/5th of the disposable income of the husband where the wife has no income of her own. A reasonable amount has to be ascertained which should be sufficient for the support of the needy spouse depending upon the facts and circumstances of the each case.
(12) In the present case, the salary certificate issued by the employer shows that the husband gets a monthly salary of Rs. 1,096.60. The trial court was justified in excluding a sum of Rs. 96.00 towards compulsory deductions and arriving at the figure of Rs 1,000.00 pm. as the disposable income of the husband. Out of this income, he has to discharge his social obligation to look-after his old parents as well as to maintain his wife.
(13) In Pradeep Kumar vs. Shailja Kapoor, , Wadhwa, J., has explained the principles that are relevant for the determination of a reasonable monthly payment to support the needy spouse. One of the principles to be considered is the "number of persons opposite party is obliged to maintain". This principle has also been recognised and discussed in Dinesh Gijubhai Mehta vs. Smt. Usha Dinesh . Deshpande, J., has pointed out that one of the ways for fixing a reasonable amount would be by dividing the disposable income of the husband equally between all the members of the family. Applying these principles to the present case, it is found that the trial court was justified in taking into account the husband's obligation to maintain his parents.
(14) The learned counsel for the petitioner has, however, criticised the impugned order on the ground that it does not indicate any principles to show how the trial court arrived at the figure of Rs. 150.00 p.m. to be paid as maintenance pendente lite. He has contended, on the basis of the judgment of Renu Jain (supra) that 1/4th of the disposable income of the husband would be a fair guide and that proportion should be accepted for determining the amount of the monthly payment. This criticism of the impugned order is, indeed, well-founded. There is no indication in the impugned order of the basis on which the learned trial court fixed the amount of Rs. 150.00. Following the principles laid down in the cases of Dinesh Mehta and Pradeep Kumar (supra), it has been found that the husband is under an obligation to maintain his old parents as well as his wife. Thus, the number of members of the family comes to four, including the husband. The amount of the disposable income of Rs. 1,000.00, divided by four, comes to an amount of Rs. 250.00. This also conforms to the rough-and-ready formula of allowing 1/4th of the disposable income as maintenance pendents lite.
(15) Therefore, the impugned order is modified to the extent that the respondent shall pay to the petitioner a sum of Rs. 250.00 p.m. as maintenance pendente lite from the date other application u/S, 24 of the Act, i.e., with effect from 26.5.88.