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Case Number
Attorney(S)
  • T.L.Tibrewal
  • G.N.Singhvi
Judges
  • Kan Singh, J.
Acts
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Citation Codes
Equivalent Citations
citation codes
Case Number
Attorney(S)
  • T.L.Tibrewal
  • G.N.Singhvi
Judges
  • Kan Singh, J.
Acts
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Smart Summary

Case Summary

Factual and Procedural Background

This appeal was filed by the husband against an order of the learned District Judge, Jhunjhunu dated 22-12-1971 which awarded pendente lite maintenance to the respondent-wife under Section 24 of the Hindu Marriage Act during the trial of the wife’s application under Section 10 of the Act for judicial separation.

The respondent (Smt. Purnima Devi) had instituted a petition under Section 10 and on 26-7-1971 moved an application under Section 24 alleging that she had no movable or immovable property and no source of income; she alleged the husband’s monthly income to be Rs. 400 and prayed for Rs. 125 per month as pendente lite maintenance and Rs. 561 as litigation expenses. The husband contested the Section 24 application, claiming his income was only Rs. 200 per month and asserting that the wife earned Rs. 4–5 per day from tailoring/sewing.

The learned District Judge found the husband’s net monthly income to be Rs. 282 (admitting pay of Rs. 307 including D.A. with Rs. 25 P.F. deduction) and awarded Rs. 55 per month to the wife to cover both maintenance and litigation expenses (applying a 20% figure to the husband's net income). The husband appealed, challenging the District Judge’s procedure and the factual assessment.

Legal Issues Presented

  1. Whether an application under Section 24 of the Hindu Marriage Act can be disposed of by the court by way of a summary proceeding on the basis of affidavits, or whether full evidence must be recorded in every case.
  2. Whether the court must take into account the incomes of both spouses (including the wife's asserted income) before granting pendente lite maintenance under Section 24.
  3. What is the effect of a defective verification/affidavit (specifically non-conformity with Order 19, Rule 3 CPC) filed by the respondent to an application under Section 24 on the court's power to grant maintenance.

Arguments of the Parties

Appellant's Arguments

  • The learned District Judge passed the pendente lite maintenance order without taking any evidence in support of the parties’ pleadings and acted mechanically without applying his mind to the materials.
  • The judgment failed to take into account the wife's income, which the husband asserted to be Rs. 4–5 per day from tailoring work.
  • The husband asserted a lower income (Rs. 200 per month) than the figure used by the District Judge and relied upon prior authorities (Smt. Snehalata Dansena… v. Jagadish Dansana…, AIR 1964 Orissa 122; Bhalu v. Hemo, AIR 1969 Orissa 236; Mary Therosa, Parker v. George Doughlas Parker, AIR 1955 NUC (Mad) 3940) to support his contention that proper inquiry/evidence was required.

Respondent's Arguments

  • The learned District Judge had a wide discretion under Section 24 and could pass an order on the basis of the affidavits before him; it was not necessary to record oral evidence in every case.
  • The wife's application was supported by a proper affidavit, whereas the husband's answering affidavit was defective and did not comply with Order 19, Rule 3 of the Civil Procedure Code (failure to distinguish what was within personal knowledge and what was on belief).
  • The amount of Rs. 55 per month (covering maintenance and litigation expenses) was reasonable in the circumstances.

Table of Precedents Cited

Precedent Rule or Principle Cited For Application by the Court
Smt. Snehalata Dansena … v. Jagadish Dansana …, AIR 1964 Orissa 122 The opinion quoted the decision for the proposition that the various elements prescribed in Section 24 must be enquired into and that a court should record findings after enquiry on each element before awarding interim maintenance (the District Judge in that case was faulted for refusing to enquire and for deferring judicial determination). The court distinguished that case by explaining that while the elements must be considered, the mode of inquiry need not always be a full trial; Section 24 matters may be summary and decided on affidavits unless special circumstances require recording of evidence.
Bhalu v. Hemo, AIR 1969 Orissa 236 Relied on the principle (through Rule 13 of the Hindu Marriage and Divorce Rules, 1956) that an application under the relevant Rules must be supported by an affidavit; absence of affidavit was reason to set aside an order. The court noted that in that case the wife's application was unsupported by affidavit, the High Court allowed the appeal and remanded to afford opportunity to comply with the rule. The present case was held distinguishable because the wife here did file a proper affidavit.
Mary Therosa Parker v. George Doughlas Parker, AIR 1955 NUC (Mad) 3940 The opinion records that this authority was relied upon by the appellant’s counsel; the decision itself is referred to by counsel but the court’s opinion does not set out a specific rule extracted from it. The court noted the reliance by the appellant but did not further elaborate or apply a specific principle from this case in its reasoning.
Pritam Singh v. Ranjit Singh, 1971 Raj LW 330 (AIR 1972 Raj 59) Establishes the principle regarding proper form and verification of affidavits: affidavits must be properly verified and restricted to matters within the personal knowledge of the deponent; where statements are on belief, grounds for that belief should be disclosed. The court applied this principle to hold that the husband’s affidavit in the present case was not in conformity with Order 19, Rule 3 CPC and therefore was defective; this supported the court’s refusal to disturb the District Judge’s order.

Court's Reasoning and Analysis

The court began by setting out Section 24 of the Hindu Marriage Act and focused on the statutory language that an order under the section can be made "where it appears to the court" that a spouse has no independent income sufficient for support and necessary expenses. The court emphasized the significance of the word "appears", observing that it indicates a lower degree of conviction than "proved", and thus Section 24 proceedings are by and large summary in character.

The court relied on Rule 801(b) of the Rajasthan High Court Rules (made under the Hindu Marriage Act) to reinforce that an application for maintenance pendente lite should state incomes, sources, property particulars and dependents and should be supported by affidavit. From this framework the court concluded that the usual mode of inquiry under Section 24 is summary and can ordinarily be decided on affidavits unless special circumstances make recording of oral evidence necessary.

The court analogized the summary nature of Section 24 proceedings to other interlocutory matters (such as temporary injunctions) that are commonly decided on affidavits. Nevertheless, the court stressed that the discretion conferred by Section 24 is wide and must be exercised judicially with regard to the petitioner's and respondent's incomes and the reasonableness of the sum awarded; there can be no fixed formula applicable to all cases.

The court considered the appellant's objections that the District Judge did not consider the wife's income and passed the order mechanically. It accepted the general proposition that the income of both spouses must be considered but found a decisive procedural difficulty for the appellant: the husband's answering affidavit did not comply with Order 19, Rule 3 CPC because it failed to distinguish what was within the deponent's personal knowledge and what was on belief. The court referred to Pritam Singh v. Ranjit Singh to show the required standard for affidavit verification and disclosure of grounds for belief.

Because the wife's application was supported by a proper affidavit and the husband's answer was supported by a defective affidavit, the court concluded there was no basis for interfering with the District Judge’s order which had been reached on the basis of the affidavits before him. The court therefore upheld the pendente lite award of Rs. 55 per month.

Holding and Implications

Holding: The appeal is dismissed and the order of the learned District Judge awarding pendente lite maintenance (Rs. 55 per month covering maintenance and litigation expenses) is upheld. The parties are directed to bear their own costs.

Implications

  • The court affirmed that applications under Section 24 of the Hindu Marriage Act are summary in nature and may ordinarily be decided on affidavits rather than by recording full oral evidence; however, the court may record evidence where affidavits are inadequate or special circumstances require it.
  • The court reiterated that, in exercising discretion under Section 24, the court must have regard to both the petitioner's and the respondent's incomes and award such sum as seems reasonable in the circumstances; there is no rigid, universally applicable formula.
  • The court emphasized the procedural consequence of defective affidavits: an answer not supported by a proper verification in conformity with Order 19, Rule 3 CPC may not justify upsetting an interim allowance granted on the basis of a properly verified applicant's affidavit.
  • The opinion did not purport to set a novel binding precedent beyond these clarifications; its effect is to uphold the District Judge's exercise of discretion in the particular facts (proper applicant affidavit and defective respondent affidavit) and to confirm the permissibility of summary disposal on affidavits in appropriate cases.
Show full summary ...

    Vinay Kumar v. Smt. Purnima Devi .

    1. This is a husband's appeal directed against an order of the learned District Judge, Jhunjhunu, dated 22-12-1971 awarding pendente lite maintenance to the respondent wife under Section 24 of the Hindu Marriage Act, hereinafter to be referred as the “Act”, during the trial of the application moved by the wife under Section 10 of the Act for judicial separation.

    2. Respondent Smt. Purnima Devi had filed the application against the appellant-husband in the court of the learned District Judge under Section 10 of the Act. The respondent also filed the application under Section 24 of the Act on 26-7-1971. She averred in this application that she had no movable or Immovable property and had no source of income. As regards the appellant's income she averred that his monthly income was Rs. 400/-. Therefore, she prayed that an amount of Rs. 125/- per month be granted to her as pendente lite maintenance and Rs. 561/- be awarded as litigation expenses. The appellant-husband contested the application. He submitted that his own income was only Rs. 200/- per month and that the respondent wife had been earning rupees 4 to 5 daily on account of tailoring or sewing work.

    3. The learned District Judge held that the husband was earning Rupees 282/- per month. The husband had admitted that his pay was Rs. 307/- including dearness allowance and Rs. 25/- was P.F deduction. Thus, he was left with the net income of Rs. 282/- per month. The learned Judge observed that 20% of this could be allowed to the respondent wife and in the circumstances he awarded Rs. 55/- to the wife both for maintenance as well as for the expenses of litigation. In assailing this order learned counsel for the appellant-husband contended that the learned Judge has passed this order without taking any evidence in support of the pleadings of the parties end without even having regard to the Income of the wife which, according to the husband, was Rupees 4 to 5 per day. Learned counsel maintained that the learned Judge has passed the order in a mechanical manner without really applying his mind to the materials before him. Learned counsel placed reliance on Smt. Snehalata Dansena… v. Jagadish Dansana…., AIR 1964 Orissa 122; Bhalu v. Hemo, AIR 1969 Orissa 236 and Mary Therosa, Parker v. George Doughlas Parker, AIR 1955 NUC (Mad) 3940.

    4. Learned counsel for the respondent, on the other hand, submits that the learned District Judge had a wide discretion in the matter and he could pass an order on the basis of the affidavits that were before him and it was not necessary for him to record any evidence of the parties. He further submitted that whereas the wife had filed a proper affidavit in support of her application, the affidavit filed by the husband in answer is defective in the extreme as it does not conform to the requirements of Order 19. Rule 3 of the CPC in that the deponent had not disclosed what paragraphs of the affidavit were based on his personal knowledge end what paragraphs were based on his belief; the deponent having said in one breath that the several paragraphs in the affidavit were true to his knowledge and belief. Learned counsel then pointed out that this amount of Rs. 55/- per month covers both maintenance as well as expenses of litigation and in the circumstances is reasonable.

    5. I may read Section 24 of the Act:

    “S. 24. Maintenance pendente lite find expenses of proceedings. 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.”

    6. Now what is to be noticed at the very outset is that the words used in the section are

    “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 proceedings.”

    7. The word “appears” is suggestive of what should be the degree of conviction of a court before it passes an order under the section. The word “proved” has not been used. Therefore, an application under Section 24 has to be disposed of by and large, by way of a summary proceeding and the court need not try the issue at any length. Such a matter should ordinarily be decided on affidavits of the parties concerned. I am confirmed in this by Rule 801 (b) of the Rajasthan High Court Rules made under the Hindu Marriage Act. 1955. Clause (a) of the Rule lays down what an application for maintenance pendente lite should contain. It provides that the application shall state the average monthly incomes of the petitioner and the respondent the sources of these incomes, particulars of other movable and immovable property owned by them, the number of dependents on the petitioner and the respondent and the names and ages of such dependents. Clause (b) provides that such application shall be supported by an affidavit of the applicant.

    8. It is noteworthy that the main petition under Section 10 of the Act is not required to be supported by an affidavit. Therefore, the idea in enacting this Rule 801 (b) seems to be that the matter arising under Section 24 of the Act has, by and large to be decided on the basis of affidavits. This is, however, not to say that no evidence ever should be recorded. In an appropriate case where the court finds that the matter cannot be disposed of properly on the basis of affidavits alone then it may proceed to record evidence and then decide the matter. The section vests the court with the widest discretion regarding the award of pendente lite maintenance and costs of the proceedings, but the discretion has to be exercised judicially. One may draw an analogy from the way the Courts decide the applications for grant of temporary injunctions and the like. Such matters too are normally decided on affidavits. The section lays down when an order for maintenance pendente lite and the expenses can be passed. Firstly the spouse concerned should have no independent income sufficient for her or his support and the necessary expenses of the proceedings and then secondly for passing an appropriate order the court should have regard; (i) to the petitioner's own income, and (ii) to the income of the respondent, and then it should award such sum as may seem to the court reasonable. A passing of an order under this section will necessarily turn on the circumstances of each case and no fixed rules can be expected on the subject. In cases of ordinary income a rough working rule has been adopted by some courts on the analogy of other enactments, such as, the Indian Divorce Act, but that is not a hidebound formula though the working rule may be of some use in fixing the amount of interim maintenance. In cases of substantial income the court need not have regard to any notional rule in exercising its discretion in the matter regarding what proportion of the income of one spouse has to be awarded by way of maintenance to the other.

    9. In Smt. Snehalata Dansena's case, AIR 1964 Orissa 122 the wife had applied for interim maintenance asserting that she had absolutely no independent income to support her and to defray the expenses of the proceedings. The learned District Judge rejected the application end against his order the wife went up in appeal to the High Court. It was, inter alia, urged by the appellant wife that the learned District Judge had not considered the various elements required to be considered under Section 24 of the Act before passing the order. It was in this context that the learned Judge observed as follows:—

    “The various elements prescribed in the section must be enquired into and it is the bounden duty of the Court to record findings after enquiry on each of the elements and then come to the conclusion whether interim maintenance and expenses of the proceeding should be awarded. The learned District Judge failed to exercise his jurisdiction in refusing to go into this question on the ground that a consolidated sum of Rupees 100/- had already been received by the petitioner to defray the expenses. Judicial determination cannot be deferred on other consideration. The order under appeal cannot be upheld”.

    10. It is true the various elements prescribed in the section have to be inquired into, but I am afraid the mode of inquiry need not always be as in the case of the trial of a regular suit or for that matter regarding the main petition. The mode of inquiry normally would be summary and the court could dispose of the matter on the basis of the affidavits of the parties unless there ere special circumstances which would merit the recording of evidence.

    11. In AIR 1969 Orissa 236 on the wife's application the order for pendent elite maintenance was passed against the husband. The husband went up in appeal to the High Court. It appears from the judgment that the wife's application was not supported by any affidavit of the wife. Rule 13 of the Hindu Marriage and Divorce Rules, 1956 was relied upon. That rule is analogous to the Rule 801 (b) of the Rajasthan High Court Rules which has been extracted above. Since the wife's application was not supported by an affidavit as required by the Rules, the High Court allowed the appeal and set aside the order of the Subordinate Judge and remanded the case with the direction that he shall afford an opportunity to the wife-applicant to take steps to conform to Rule 13 of the Hindu Marriage and Divorce Rules, 1956 and thereafter he shall call upon the applicant to adduce such evidence as she may think fit and proper in support of her plea. Therefore, that case is distinguishable.

    12. As I have already observed above, recording of evidence may not always be necessary and it will depend on the nature of the rival affidavits before the court for determination of the application under Section 24 of the Act. Evidence may have to be recorded if the matter cannot justly be determined on the basis of the affidavits. In the circumstances I do not find anything wrong with the order of the learned District Judge in the present case if he did not proceed to record the evidence of the parties. Learned counsel for the appellant is right in saying that under Section 24 of the Act it is necessary to have regard to the income of both the spouses. The order of the learned District Judge does not take note of the husband's assertion regarding the income of the wife. If everything were alright I might have interfered with this order, but there is one difficulty in the path of the appellant. Whereas the affidavit of the wife has been properly verified, the verification on the affidavit of the husband is as follows:—

    13. Such an affidavit is not in conformity, with the provisions of Order 19, Rule 3 of the CPC as it has to be. If was pointed out by this Court regarding the form of an affidavit in Pritam Singh v. Ranjit Singh, 1971 Raj LW 330 : (AIR 1972 Raj 59) as to how an affidavit has to be verified. It was pointed out that it was necessary for an affidavit that it should be properly verified and must be restricted to matters of fact within the personal knowledge of the deponent.

    14. Regarding the facts which are not within the personal knowledge of the deponent but they are statements regarding facts based on his belief then the grounds for the belief have also to be disclosed. An affidavit in the form that several paragraphs of the affidavit ere true to the knowledge and belief was not a proper affidavit. Therefore, the resultant position here is that where as there is a proper affidavit in support of the wife's application under Section 24 of the Act the husband's answer is not supported by a proper affidavit. That being so, the order of the learned District Judge does not call for interference.

    15. The result is that the appeal fails and is hereby dismissed, The parties are, however, left to bear their own costs.

    16. Appeal dismissed.

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    Comments

    Vinay Kumar v. Smt. Purnima Devi .
    (Sep 15, 1972)