JUDGMENT U.K. Dhaon and R.P. Yadav, JJ.
1. Heard Shri S.C. Dhasmana, the learned Counsel for the appellant and Shri R.C. Singh, the learned Counsel appearing for the respondent No. 2.
2. This appeal is by the wife under Section 19 of the Family Courts Act, 1984. She is aggrieved by an order dated 24.1.2005 passed in Misc. proceedings under Order IX, Rule 13 of the Code of Civil Procedure (hereinafter referred to as the "Code") by the Additional Principal Judge. Family Court, Lucknow awarding Rs. 5,000 per month as interim maintenance under Section 24 of the Hindu Marriage Act, 1955. The ex parte decree of divorce, the cancellation of which has been sought is said to have been obtained fraudulently. The amount of interim maintenance is alleged to be grossly inadequate determined arbitrarily and illegally on a misreading of material evidence regarding income of the husband respondent No. 2.
3. Admittedly the respondent No. 2 is a Medical Officer in the Central Government, Health Scheme and is presently drawing monthly salary of Rs. 45,246 and after deducting Rs. 17,970 on various counts, his take home salary is Rs. 27,276.
4. The appellant was married on 22.5.1986 to respondent No. 2. They lived together for some time and two daughters were born to them out of this wedlock. The respondent No. 2 obtained an ex parte decree of divorce on 27.8.2001 by filing a Regular Petition No. 326 of 2000 under Section 13 of the Hindu Marriage Act, 1955 in the court of Principal Judge, Family Court, Lucknow. The appellant on coming to know about the ex parte decree of divorce, applied for cancellation thereof under the provisions of Order IX, Rule 13 read with Section 151 of the Code. The said application is pending. During the pendency of the said application, the appellant moved an application under Section 24 of the Hindu Marriage Act for interim maintenance, litigation expenses, travelling and other expenses as she has to come to Lucknow for attending the court from her parents' house in district Muzaffarnagar, a place more than 500 Kms. away from Lucknow. An objection was raised before the learned Additional Principal Judge, Family Court, Lucknow that interim maintenance cannot be awarded during the pendency of the proceedings under Order IX, Rule 13 of the Code as the same is not a proceeding under the Hindu Marriage Act. Relying on the case of Rishi Deo Anand v. Smt. Devinder Kaur AIR 1985 SC 40; Smt. Nadipti Ghosh v. Swapan Kumar Ghosh and Vinod Kumar v. Usha Vinod AIR 1993 SC 160, the learned Additional Principal Judge, Family Court held that the application under Section 24 of the Hindu Marriage Act is maintainable even during the pendency of proceedings for setting aside the decree of divorce under Order IX, Rule 13 of the Code.
5. The other contention raised by the husband that the appellant owns a flat in Ghaziabad and also agricultural property and has sufficient means to maintain her, has also not been accepted by the Family Court. However, on the basis of a certificate of Income of husband, a sum of Rs. 2,500 has been allowed as interim maintenance, without specifying the date from which it was payable.
6. The grievance of the appellant is that the amount is so inadequate that it is impossible for her to maintain her body and soul together from this niggardly and meagre amount. She also complains that the date, from which the interim maintenance has been awarded has not been specified; whereas it should be with effect from the date of application.
7. No argument has been advanced before us about the maintainability of the application under Section 24 of the Hindu Marriage Act in proceedings under Order IX, Rule 13 of the Code or the fact the wife possesses sufficient Income to maintain herself. The only point canvassed before us by the learned Counsel for the appellant is that highly inadequate amount has been awarded on the misreading of material and that amounts to arbitrary and perverse exercise of judicial discretion. In view of the net salary of the respondent No. 2 the husband, a prayer has been made for award of Rs. 9,000 per month as interim maintenance and also the travelling and other expenses in connection with attending the Court at Lucknow on the dates fixed.
8. On behalf of the respondents, it has been urged that two daughters born out of the wedlock of the spouse are living with the father-respondent No. 2. He is maintaining them and one of them is a student of B.D.S and heavy sum is being spent by the respondent No. 2 on her education. An effort has been made to convince the Court that the amount awarded to the appellant by the Court below Is fairly reasonable, although it is not disputed that the monthly net salary of respondent No. 2 is more than Rs. 27,000 and the Court below has wrongly taken it to be Rs. 4,000 which was, in fact, the sum deducted as Income tax per month.
9. The matter of award of interim maintenance is discretionary with the Court. No set formula can be laid for fixing the amount of interim maintenance. It has to depend on the facts and circumstances of each case. The Court has to consider the status of the parties, their respective needs, the capacity of the husband to pay having regard to his reasonable expenses for his own maintenance and of those he is obliged under the law and statutory but involuntary payments or deductions. The amount of maintenance fixed for the wife should be such as she can live in reasonable comfort considering her status and the mode of life she was used to when she lived with her husband and also that she does not feel handicapped in the prosecution of her case. At the same time, the amount so fixed cannot be excessive or extortionate vide Jasbir Kaur Sehgal v. District Judge, Dehradun and Ors. .
10. It is borne out from the record that the parties were living together for quite some long time. They are parents of the two daughters. The husband being Medical Officer in the Central Government, Health Scheme, it can be easily inferred that they while living together must have been living a normal modern life. At present the wife is living with her parents at Muzaffanagar and she has to come to Lucknow for attending the Court on the dates fixed.
11. The wife being unable to maintain her, it is the obligation of the husband to provide her reasonable amount by way of interim maintenance pendente lite.
12. In Aunurita Vohra v. Sandeep Vohra (2004) DMC 568, it was held by the Hon'ble Delhi High Court that "the Court must first arrive at the net disposable Income of the husband or the dominant earning spouse. If the other spouse is also working those earnings must be kept in mind. This would constitute the Family Resource Cake which would then be cut up and distributed amongst the members of the family. The apportionment of the cake must be in consonance with the financial requirements of the family members, which Is exactly what happens when the spouses are one homogeneous unit."
13. We agree with the said principles and looking to the number of the family members and expenses involved in the education of the daughters treating the family as one unit, allow two shares to husband, one to each daughter and one share to the wife and as such, we find that a sum of Rs. 2,500 awarded by the Court below to wife is grossly inadequate and arbitrary, which has been fixed on the misreading of the net salary of the respondent No. 2, we, therefore, considering the facts and circumstances, the status of the parties and the monthly income of the respondent No. 2 fix interim maintenance at Rs. 5,000 per month.
14. The appellant is living away from her husband with her parents. She has to come to attend the Court on account of litigation filed by her husband. Whenever such a situation is created by the husband, he has to bear the expenses of the Journey of the wife also. Therefore, in our opinion, the learned Additional Principal Judge, Family Court, Lucknow was not Justified in not awarding any amount to the appellant for performing Journey from Muzaffarnagar to Lucknow for attending the Court on the dates fixed at Lucknow and for travelling fare and other expenses involved in Journey and stay at Lucknow. Looking to the distance, railway fare and other expenses involved, we feel that a sum of Rs. 1,000 should be the minimum amount for each date when the appellant attends the Court at Lucknow.
15. Unless there are strong reasons, interim maintenance should be awarded with effect from the date of application. Silence in the order under appeal regarding the date from which the amount was payable needs to be made self speaking.
16. In the result, the appeal is allowed.
17. It is hereby directed that the respondent No. 2 shall pay a sum of Rs. 5,000 per month as interim maintenance to the appellant by each 15th day of the succeeding English calendar month. Arrears at the rate of Rs. 2,500 due till this day as awarded by the Court below, which will be payable with effect from the date of application, shall be paid within six weeks from today. It is further directed that the appellant shall also be entitled to Rs. 1,000 as travelling and other expenses for the journey of each date when she attends the Court at Lucknow on the dates fixed.
18. In the facts and circumstances of the case, we direct that the parties shall bear their own costs of this appeal.