Dev Dutt Singh v. Smt. Rajni Gandhi .

This is a revision against the order of the Additional District Judge, Delhi dated 27-2-1982.

2. These are the facts. The husband has filed a petition for divorce against the wife in the Court of the Additional District Judge. The wife made an application under Section 24 of the Hindu Marriage Act (the Act) for grant of maintenance pendente lite at the rate of Rs. 600/- per month and litigation expenses amounting to Rs. 4,000/-. The Judge awarded Rs. 500/- per month as maintenance pendente lite and Rs. 3,000/- as litigation expenses. From this order the husband has come in revision to this Court.

3. The wife is a teacher in a school. She gets Rs. 1,344.79 p. per month as her salary. Out of this a sum of Rs. 75/- is deducted on account of General Provident Fund. She is left with Rs. 1,269.78 p. per month for her maintenance. She pays no income-tax. So she has an income of Rs. 1,270/- per month of her own.

4. The husband is a class I gazetted officer. He owns a house in Greater Kailash, New Delhi. He maintains a car. He has filed a copy of his income-tax returns for the assessment year 1983-84. From this return the following particulars of his income appear:—

Rs. P. 1. Salary — 29,840-00 2. Income from house property — 16,975-00 3. Income from other sources — (i) Units — 3,550-00 (ii) Interests from Bank — 14,551-00 TOTAL 64,916-00 Less Admissible deductions 20,990-00 TOTAL INCOME 43,926-00

5. On his income he has paid income-tax amounting to Rs. 11,297/- and made a compulsory deposit of Rs. 4,500/- under the Compulsory Deposit Scheme. Counsel says that the husband's net income comes to Rs. 28,120 per annum. The income, per month on this basis works out to Rs. 2,344.

6. According to the husband the following are the out—goings :—

Rs. p. 1. Life Premium — 195-60 2. General Provident Fund — 6,825-90 3. Public Provident Fund — 17,000-00 4. Central Government Employees Insurance Scheme — 960-00 — TOTAL 24,981-50

7. It is significant to note that the husband is depositing Rs. 17,000/- in the Public Provident Fund which is in fact his saving.

8. There is no dispute that the husband's income comes to Rs: 2,344/- per month on the above calculations. But two things are of outstanding importance. One, that he is living in his own house. Secondly, that he deposited Rs. 17,000/- in the Public Provident Fund account. If the amount of Rs. 17,000/- is taken into account, the husband's income will be much more. But his counsel says that the deposit of Rs. 17,000/- in the Public Provident Fund is essential otherwise the husband will have to pay very heavy tax. I will consider this question separately.

9. The Judge found that the wife was spending Rs. 600/- per month on her food, Rs. 200/- on transport and that she needed money for renting a separate residence. At present she is living with her parents. The parents are residing in a slum area at Rs. 10/- per month. The wife wants to live separately. Her total income of Rs. 1,270/- is hardly enough to enable her to rent an accommodation. So the Judge awarded her Rs. 500/- per month taking all the facts and circumstances of the case into account. The single question is whether this award of Rs. 500/- per month is unjustified, as is urged by counsel for the husband.

10. In my opinion the order is eminently just taking all the factors into account. The wife cannot be compelled to live with the parents. If she requires a separate residence, the request is not unreasonable. The husband is living in his own house. The wife can also claim a separate residence. True it is that she is at present residing with her parents but she cannot be forced to continue to live with them. She wants to rent a separate accommodation and live independently. She has to maintain a reasonable standard of living and according to her estimate it will not be possible to rent an accommodation for anything less than Rs. 700/- per month. The Judge granted her only Rs. 500/- as against the claim of Rs. 700/-. I see no justification to reduce this amount further.

Section 24 of the Act says :

Maintenance pendente lite and 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 proceedings, 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.”

Wife, it is true, has an independent income of her own but that is not sufficient for her support. Support obviously would include a residential accommodation. Everyone needs clothes, food, and a roof over the head. If the husband's income is in the neighbourhood of Rs. 3,000/- per month, taking the amount of Public Provident Fund also into account, it cannot be said that the Judge's award of Rs. 500/- per month to the wife is in any case excessive or unreasonable. If the husband is living in his own house, the wife is also entitled to an accommodation either in that very house or in a separate building. The wife's income of Rs. 1,270/- per month will not enable her to rent an independent accommodation unless she is given an allowance of Rs. 500/- at least by the husband. This is how the Judge approached this question. I am not prepared to say that he was wrong.

11. Counsel for the husband argued that the wife is not entitled to more than one third of the husband's income. This, according to him, will work out to an allowance of Rs. 1,200/- per month. Since she is already getting Rs. 1,270/- per month as her salary, counsel submitted that there ought to be no award of maintenance in her favour. He referred me to Narender Kumar Mehta v. Saroj Mehta, 1982 Hindu LR 387: (AIR 1982 Andh Pra 100), Kulbhushan v. Raj Kumari, AIR 1971 SC 234, Sushma Khanna… v. Suresh Khanna…., AIR 1982 Delhi 176. Neelam Rais v. Vinod Kumar Rais, (1981) 2 DMC 40, Usha v. Sudhir Kumar, (1974) 76 Pun LR 195 and Mrs. Arti Singh… v. Lt. Col. Kanwar Pal Singh…., 1976 Hindu LR 646 : (AIR 1977 Delhi 76).

12. The substance of these judgments is this. Each case must be determined according to its own circumstances. No two cases are alike. These cases do not lay down any proposition of law. On the facts of the particular case the Court adjudicated what allowance will be reasonable to award “having regard to the petitioner's own income and the income of the respondent”. If the present case illustrates anything it is this that rigid adherence to “one-third” rule may not always be just. Section 24 is not a code of rigid and inflexible rules, arbitrarily ordained, and to be blindly obeyed. It leaves everything to the Judge's discretion. It does not enact any mathematical formulae of one-third or any other proportion. It gives wide power, flexible and elastic, to do justice in a given case.

13. In most cases the standard of living of one or both of the parties will have to suffer because there will be two households to support instead of one. When this occurs, the Court clearly has to decide what the priorities are to be and where the inevitable loss should fall. Generally speaking, wife is the financially dependent spouse. She is potentially likely to suffer greater financial loss from the dissolution of marriage than the husband. For her support the Court has to award a reasonable amount. The cases decided under the Act should not be followed slavishly. In the words of Scarman L. J.

“It would be unfortunate if the very flexible and wide-ranging powers conferred upon the Court should be cut down or forced into this or that line of decisions by the Courts.” (Chamberlain v. Chamberlain, (1974) 1 All ER 33, 38 CA).

14. What is the right figure of periodical payment is essentially a practical decision on the facts. The ultimate evaluation is left to the adjudicator. On the statutory hypothesis it is an indefensible position to hold that the wife in the present case is not entitled to anything because she is already earning Rs. 1,270/- per month which comes to one-third of the husband's income.

15. What is a proper proportion of the husband's income to be given to the wife as maintenance pendente lite is a question to be determined in the light of all the circumstances of a particular case; the very flexible and wide-ranging powers vested in the Court make it possible to do justice.

16. In Bhagwan Dutt v. Kamla Devi, AIR 1975 SC 83, 86, Sarkaria J. in a case under Section 488, Code of Criminal Procedure said :

“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. The needs and requirements of the wife for such moderate living can be fairly determined, only if her separate income, also, is taken into account together with the earnings of the husband and his commitments.”

17. Maintenance depends upon a gathering together of all the facts of the situation, the income of the parties, a survey of the conditions and necessities, regard being had to the scale and mode of living, and to the age, habits, wants and class of life of the parties. (Mt. Ekradeshwari v. Homeshwar, AIR 1929 PC 128 approved in Dr. Kulbhushan Kunwar v. Raj Kumari, AIR 1971 SC 234, 239).

18. It is the essence of such a discretionary situation that the Court should preserve, as far as it can, the utmost elasticity to deal with each case on its own facts. It would be unfortunate if the wide powers of the Court are cut down by case law or put in a straight-jacket or reduced to cast-iron rules,

19. There was some controversy before me on the question whether the husband was entitled to contend that Rs. 17,000/- which he had deposited in the Public Provident Fund was not a part of his income. Counsel strenuously argued that Rs. 17,000/- must be excluded before the husband's “disposable income” can be found out. In my opinion this amount is not a compulsory deduction under the tax laws and therefore ought to be taken into account in determining the disposable income of the husband.

20. In Preeti Archana Sharma v. Ravind Kumar Sharma. AIR 1979 All 29 it was observed that “Section 24 uses the word “support” and does not use the word “standard” or “status”. I do not agree. The word “support” is of wide import. Support has to be according to the standard of the parties. Maintenance has to be fixed according to the standing of the parties, their wealth and the environment to which they in their married state have been accustomed.

21. There is no inflexible rule. There may be cases where more than one-third is right. There are likely to be many others where less than one-third is the only practicable solution. Cases show that “one-third rule” as a flexible starting point is in general more likely to lead to the correct final result than a starting point of equality or a quarter. In any calculation the Court has to have a starting point. If it is not one-third, should it be one half or one quarter? One-third is a good and rational starting point, remembering that it is not an inflexible rule but only a starting point. Here the husband is earning far more than the wife. She can only keep up her standard of living with his help. Inflation has already altered values considerably.

22. In the light of all the circumstances of the particular case the Court has to arrive at a figure for the maintenance and support of the wife which is reasonable having regard to the income of the parties. In all these cases it is necessary at the end to view the situation broadly and see if the proposals meet the justice of the case. Rough justice according to common sense may be the best that the Court can in many cases achieve.

23. In Wachtel v. Wachtel, (1973) 1 All ER 829 the Court of Appeal in England recognised the need for a simple guide to serve as a starting point, and accepted the traditional one-third as being as

“Good and rational a starting point as any other, remembering that the essence of the legislation is to secure flexibility to meet the justice of particular cases, and not rigidity, forcing particular cases to be fitted into some so-called principle within which they do not easily lie. There are likely to be many others where less than one third is the only practicable solution. But one third as a flexible starting point is in general more likely to lead to the correct final result than a starting point of equality, or a quarter.” (per Lord Denning at p. 839).

24. The husband in this case has furnished the tax calculations. In a case like this unless the parties put before the tribunal the tax calculations it will not be possible for the Court to arrive at a sensible or satisfactory conclusion. They show the real position of each party. Otherwise it would be pure guess-work.

25. The decisions of this Court can never be better than guidelines. “They are not precedents in the strict sense of the word”. (Martin v. Martin, (1977) 3 All ER 762 at p. 768 CA). There is no hard and fast rule, and each case stands on its own merits. There is no fixed rule and no certain proportion. The allowance is entirely in the discretion of the Court and, if the husband's income is very large, the proportion, if the Court thinks that the appropriate approach in any given cause is to have regard to a proportion, may be smaller, whilst it may be necessary to ignore all questions of proportion when the means are very small. The overriding consideration is the actual needs of the parties pending proceedings. If there are children of the marriage their needs have also to be provided. The principles enumerated in S. 25 are much wider because they provide for a permanent alimony. Under Section 24 it is not necessary to take a long term view. But the principles enumerated in post-decree cases may be helpful. The matter is one of discretion. The Court has an unfettered discretion to award what sum it considers just.

26. In this case the question of house accommodation has appeared in the forefront. Some provision has to be made. If the wife continues to reside in the matrimonial home due allowance will be made for that fact. In these days of housing shortage many couples live under the same roof though their married life has been disrupted. But where the husband asks the wife to leave his house and is not prepared to give her shelter, as in this case, the Court will make a suitable provision for accommodation if the husband's income is large enough for an allowance to her on this score.

27. Times change and we change with them. We have to bear in mind the changing nature of the family. As the Law Commission in its 71st Report of 1978 says:

“The family is becoming more democratic, and more egalitarian. Both the husband and wife share not only the family house; in some cases they also share the earnings of each other, because of the rising rate of female activity, the family unit is more of a coalition.” (page 14)

28. Section 24 uses both terms, “Maintenance” in the margin and “support” in the body of the section. The word “support” “is doubtless one of the most elastic in the language., “Maintenance” means the act of maintaining, and denotes the regular supply of food, clothing and lodging, the provisions of the necessaries and the conveniences of life. These will in each case depend in part on the standing of the parties, their wealth and the environment to which they in their married state have been accustomed, as I have said. Every case will be different and no case may be decided except upon its particular facts.

29. The fist basic need of the wife is the home. At the end of the day after a careful judgment the Judge came to a fair and sensible decision. He awarded Rs, 500/- per month to the wife. I regard it as a realistic and sensible award. It is not on the high side. It is pre-eminently a just award. I do not think I ought to interfere with it.

30. A word of caution. On Sections 24 and 25 of the Act there is a “wagon-load of cases”, to use a phrase of Lord Atkin (See Harris v. Associated Portland Cement Manufacturers Ltd., (1939) AC 71, 78). But they do not lay down any proposition of law. They are decisions on the particular facts of those cases. “We ought to be beware of allowing tests or guides which have been suggested by the Court in one set of circumstances, or in one class of cases to be applied to other surroundings”, and thus by degrees to turn that which is at bottom a question of fact into a proposition of law. If we allow this to happen we will be crushed under the weight of our own reports. (See Qualcast (Wolverhampton) Ltd. v. Haynes, (1959) AC 743 761 (per Lord Denning).)

31. But it must not be forgotten that the award of maintenance pendente lite has to be reasonable, having regard to the income of the parties. On the facts of this case and having regard to the income of husband and wife I have no hesitation in holding that the Judge's award is eminently just.

32. The other question is about the litigation expenses. The wife claimed Rs. 4,000/-. The Judge awarded her Rs. 3,000/-. He has taken note of the three litigations which the wife had to face because of the break up of the home. The husband instituted a petition for divorce in the Bhatinda Court, though the parties are permanently residing at Delhi and were married at Delhi. The wife had to approach the Supreme Court in getting that case transferred to Delhi. The wife has filed her cross-petition. Taking all these factors into account the Judge awarded Rs. 3,000/-. There is no good reason to interfere with this award.

33. For these reasons the revision petition is dismissed. The husband will pay to the wife in terms of the order of the learned Additional District Judge arrears of maintenance and litigation expenses within one month from today. He will also pay to her Rs. 500/- on account of costs of this petition.

Petition dismissed.