Dharamichand v. Smt. Sobha Devi

Navin Chandra Sharma, J.:— Dharmichand husband, who has petitioned for the divorce of his wife Smt. Sobha has come in revision against the order of the District Judge, Pali dated April 24, 1986 whereby the said Judge has awarded to the wife alimony pendente lite the petition for divorce at R. 300/- per month from January 8, 1986.

2. Husband's case is that he is employed as a Munim with Birdhi Chand Champalal and he is getting only a salary of Rs. 400/- per month and the amount of alimony pendente lite awarded by the District Judge is not only high but has been arbitrarily fixed. With regard to expenses of litigation, it has been contended that the wife has already been paid a total amount of R. 1350/- for that and no further direction for awarding of more amount is warranted.

3. Wife's contention, on the other hand, is that father of Dharmichand carries on Kirana business under the name and style of Anand Vastu Bhandar and the husband admittedly is joint with his father and, therefore, the income derives from the Kirana business should also be taken into consideration while determining the income of the husband and his paying capacity. As for award of mere litigation expenses, her contention is that the petition for divorce has been filed in the court of District Judge, Pali while the wife is living with her parents at Hyderabad in Andhra Pradesh and she has to come again to Pali to defend the divorce petition.

4. Mr. Hukam Chand Jain, learned counsel appearing for the husband, has referred to the decision reported in 1959 R.L.W 627 : 1977 W.L.N 357 : A.I.R 1980 All. 109 : 1981 W.L.N (U.C) 264 and 1983 W.L.N 322 in order to contend that it is the uniform rule that 1/5th of the husband's income can at best be awarded as alimony pendente lite and as in the instant case the husband's income was only R. 400/- per month from his employment as Munim with Birdhichand Champalal, the amount of alimony can only be Rs. 80/- per month. The learned counsel also referred to the decision reported in A.I.R 1961 Cal. 359, to contend that the wife has failed to prove the income from Anand Vastu Bhandar run by husband's father.

5. Oft-quoted rule of 1/5 was taken and adopted from Old English case. This rule as laid down in England may be correctly stated as follows:

“Formerly it was usual to award an amount which would bring the income of the wife upto approximately 1/5th of the joint incomes. This formula meant 1/5th of the husband's income where an each had the wife had no separate means, and where income the award to the wife would be 1/5th of the joint income less her own income and this rule was only applied in cases where a wife was proceeded against adultery.”

Reference in this connection may be made to para 796 of Halsbury's Laws of England (4th Edition) page 379 and the decision of Hawkes v. Hawkes (1) and Hill v. Hill (2).

6. Now the rule is that alimony allowance is entirely in the discretion of the court. Reference in this connection may be made to Griffith v. Griffith(3) and Attwood v. Attwood (4). The general rule is that the wife should not be relegated to a lower standard of living than that which the husband enjoys. Reference in this connection may be made to the observations of Sir Jocelyn Simon in Kershaw v. Kershaw (5).

7. So far as this High Court is concerned, it has been adopting the rule of 1/5th of husband's income as appears from the decisions in Mukan Kanwar v. Ajit Singh (6). As a matter of fact, in Smt. Priti Parihar's case (7) it has been urged on behalf of the respondent that it was not a hard and fast rule that 1/5th net income of the husband should be awarded by way of interim maintenance to the wife. His lordship Gupta, J. stated that it is of course undisputed that the award of maintenance pendente lite is a matter of discretion of the court, but he added that this discretion is to be exercised on sound legal principles. In view of the fact that the net income of the husband in that case was R. 1660/- per month and after certain deductions he received an amount of Rs. 1571/- the award of a sum of Rs. 200/- per month by way of maintenance pendente lite was considered much less in view of the fact that the gross income of the husband had increased by Rs. 900/- since the time the District Judge had fixed the interim allowance. It was stressed that the amount of interim maintenance payable to the wife should undergo a corresponding increase with the husband's emoluments in the absence of special circumstances.

8. In the above background of case-law both in latest and the traditional, it has to be found as to what the income of the husband. It is undoubtedly in evidence that the husband is employed as a Munim at the shop of Birdhi-chand Champalal and is getting R. 400/- per month as salary from the said shop. It is also well established that Sukh Raj, father of the husband, is carrying on business in Kirana under the name and style of Anand Vastu Bhandar and the husband is joint with his father and is living with him. Mr. Hukam Chand Jain, the learned counsel for the petitioner has laid much stress on the point that the wife has not established as to what was precisely the income from the Kirana shop run by husband's father and the interest of the husband therein. It was contended that the wife did not at all put her case in the cross-examination of the husband that income from the Kirana shop was so much as to justify the award of Rs. 300/- per month as alimony pendente lite. Much reliance was placed upon the decision of the Calcutta High Court in A.E.G Carapiet v. Aydetdurian (8) That was a case relating to the grant of probate of the will of the A.E.G Carapiet. What had happened in the Calcutta case was that the trial Judge came to a definite finding that he was satisfied from the eviderce that on the day the testator has executed the will and he held that both the doctor and the nurse of the Nursing Home in which the testator had been admitted had testified the execution of the will. However, the trial Judge came to the conclusion that testator had sound disposing mind. In holding this the trial Judge had gone against all evidence on record including the evidence of all the doctors and all the nurses who deposed that the testator had a sound disposing mind. The trial Judge entirely relied on the evidence of one solitary witness Venkata-ramahaya. The main reason assigned by the trial Judge for dismissing the evidence of doctors and nurses was that some how or the other they were all supposed to be under the influence of the doctor and compounder who was repeatedly described in the judgment as an attractive woman of many qualities with pleasing manners, great social qualities, intelligent, shrewd and capable. The learned Judge of the Calcutta High Court held that the medical evidence of the doctors and nurses which was overwhelming in favour of the execution of the will could not be put to stake on the alleged basis of the devastating effect of feminine charms on the whole world including the old seduced doctors of the medical profession of Poona was based entirely on suspicion. The court was unaware that charms as a woman could lead to an undoubted influence and that they may unattractively affect on the young and old alike. It was observed that the court of law must see by proof of the fact of such charms which has to be established as a fact and it was in that context it was stated that not a word was put to the compounders when she was in the witness box about the Vankatayaram-hayya having found the testator physically and mentally unfit. The above narration of fact would go to show that the facts in the above Calcutta case were entirely different. In the instant case, it is an admitted fact that the father was carrying on a Kirana business and the husband was joint with his father. It was within the special knowledge of the husband as to what was the income derived from Anand Vastu Bhandar. He could produce the account to show the monthly or yearly income from this business which he deliberately with-held. It may also be mentioned that question about the award of alimony pendente lite is not tried as a suit. It is an interim order and is usually inquired into and decided on affidavits. It was observed in Vinay Kumar… v. Smt. Purnima Devi…. (9) by his Lordship Kan Singh, J. that in section 24 the word ‘appears’ is used and not the word “Proved”. Therefore, application under section 24 has to be disposed of by and large by way of summary proceedings and the court need not try to issue at length. Such a matter should ordinarily be decided on affidavits of the parties concerned. His Lordship Kan Singh, J. found support for his views from Rule 801B of the Rajasthan High Court Rules made under Hindu Marriage Act, 1955. There was every reason to draw an adverse inference against the husband for with-holding the important documents in the shape of account-books of Anand Vastu Bhandar in his possession and in my view, the District Judge, having regard to all the facts and circumstances of the case, was justified in fixing the amount of alimony pendente lite at R. 300/- per month.

9. As to costs of litigation, it is true that the husband has already paid a total amount of Rs. 1350/- to the wife. But one fact has to be noticed that the petition for divorce has been filed at Pali and the wife lives with her parents at Hyderabad in Andhra Pradesh. In Indian society, it is difficult to expect that a young lady should travel all alone this long distance from Hyderabad to Pali without accompanying with her of a near relative. Youth cannot travel alone. In my view, the husband should bear the travelling charges of the wife from Hyderabad to Pali on the dates on which she actually comes to Pali to defend the petition for divorce and to that extent the cross-objection filed by the wife deserves to be allowed and is allowed accordingly.

10. Revision petition filed by Dharmi Chand petitioner fails and is dismissed. Parties are left to bear their own costs in this revision.

11. The District Judge Pali would proceed to decide the case very expeditiously because matrimonial cases should not be unduly delayed and for that he should endeavour to proceed day to day.