JUDGMENT Alok Kumar Singh, J.
1. Smt. Veena Panda alias Seema Panda has preferred two first appeals (1) First Appeal No. 88 of 2005 Under Section 19 Family Court read with Section 28 of the Hindu Marriage Act, against the order dated 16.09.2005 passed by the Principal Judge, Family Court, Lucknow in Misc. Case No. 38-C/2004 under Section 24 of the Hindu Marriage Act connected with Suit No. 196 of 2004 (Smt. Veena Panda v. Devendra Kishore Panda) under Section 9 of the Hindu Marriage Act for restitution of conjugal rights and (2) First Appeal No. 87 of 2005 against the same common order dated 16.09.2005 passed by the Principal Judge, Family Court, Lucknow in Misc. Case No. 189-C/2004 under Section 24 of the Hindu Marriage Act connected with Regular Suit No. 407 of 2004 Devendra Kishore Panda v. Smt. Veena Panda, under Section 10 of the Hindu Marriage Act, for judicial separation. Both the appeals between the same parties dealing with pendente lite maintenance and litigation expenses are being taken up together for convenience.
2. The facts, wrapped in brevity, are that on 11.02.2004 the appellant, Smt. Veena Panda (wife) filed a case (Suit No. 196 of 2004) under Section 9 of the Hindu Marriage Act for restitution of conjugal rights against her husband, Sri Devendra Kishore Panda (respondent) and also moved an application on 11.02.2004 for pendentelite maintenance and litigation expenses under Section 24 of the Hindu Marriage Act seeking Rs. 15,000/- per month as maintenance and Rs. 11,000/- for litigation expenses. On the other hand the respondent-husband, Sri Devendra Kishore Panda, filed a case (Suit No. 407 of 2004) on 02.04.2004 against his wife (appellant) under Section 10 of the Hindu Marriage Act for judicial separation. In this case also the wife (appellant) filed similar application on 16.07.2004 for pendente lite maintenance and litigation expenses of similar amount. Both these applications for pendente lite maintenance and litigation expenses were decided by the learned Principal Judge, Family Court, Lucknow by passing the single impugned order dated 16.09.2005 rejecting the prayer for pendente lite maintenance while allowing Rs. 2500/-each as litigation expenses in respect of both the cases. Feeling aggrieved by this order the aforesaid first appeals have been preferred by Smt. Veena Panda against her husband, Devendra Kishore Panda.
3. After hearing both the parties the learned Principal Judge, Family Court found that Smt. Veena Panda was admittedly living with her husband [an IPS Officer now voluntarily retired w.e.f. 28.11.2005] in official residence No. 5/2 Senior Police Officers Colony, Vibhuti Khan, Gomti Nagar, Lucknow.
4. The following details of salary as on January, 2005 were furnished by Sri D.K.Panda himself in the lower court during the course of arguments, which are also acceptable to Smt. Veena Panda as per paragraph 4 of her affidavit dated 15.02.2005 filed in lower court:
5. But he found that the wife was not entitled for any pendente lite maintenance because admittedly she has been living in the aforesaid house with her husband and her all the basic needs are being fulfilled. She was not dependent on anybody for her basic needs. Therefore, the prayer for pendente lite maintenance was rejected. However, keeping in view the monthly income of the husband the learned Judge awarded litigation expenses of Rs. 2500/- each in both the cases pending between the parties.
6. Heard learned Counsel for the parties and perused the record. After the arguments of the learned Counsel for both the parties were concluded on 23.01.2006 the respondent, Sri Devendra Kishore Panda, made a request for hearing him in person. He was permitted to argue in person but his arguments remained incomplete and for that purpose 7th February, 2006 was fixed. On 7th February, 2006 the respondent did not appear and the case was adjourned to 14.02.2006. On 14.02.2006 the case was got adjourned and 21.02.2006 was fixed. On 21.02.2006 respondent again did not appear in person and therefore a last opportunity was given to him fixing 22.02.2006 making it clear that if the respondent desires to argue in person he may do so on 22.02.2006 and the case will not be adjourned on any ground. The respondent did not avail the last opportunity extended to him to hear in person although the arguments of his counsel had already been concluded, and on 22.02.2006 the respondent again did not appear. In these circumstances judgment was reserved.
7. The following case laws have been relied upon by the learned Counsel for appellant:
I. Baby Rashmi Mehra v. Sunil Mehra . In this case it was held that no rigid formula about percentage of income can be fixed for giving maintenance. The quantum depends upon the status and income of the parties. The leading case of privy council, Ekradeshwari v. Homeshwar reported in AIR 1929 privy council 128 was also referred to in this case wherein it was observed that maintenance depends upon a gathering together of all the facts and the situation, amount of free estate, the past life of the married parties and the family and survey of the members, on reasonable view of change of circumstances, possibly required in future, regard having of course be given to the scale and mode of living and the age, habits and wants and class of life of the parties. Our Hon'ble Supreme Court in the case of Kulbhushan v. Raj Kumari expressed its agreement with the aforesaid observation of the privy council. In this case it was also observed by the single Judge of Delhi High Court that in one case the maintenance may be 25% while in another it may be 50% or even less or more. The quantum depends upon the position of status of the parties including financial position of the defendant and the reasonable demands of the claimant or any other factor. There can be no quarrel with the principle laid down in these cases.
II. Dev Dutt Singh v. Rajani Gandhi 1984 (1) DMC Delhi 212. In this case it was held that if the husband is living in his own house the wife is also entitled to accommodation in the same house or in a separate building. There can be no dispute in respect of this principle also.
III. Dinesh Giju Bhai Mehta v. Smt Usha Dinesh Mehta 1979-M L R 209 Bombay- (DB). In this case the Division Bench of the Bombay High Court held that rule 1/5 of net income of husband is unreasonable because wife and husband are equally partners.
IV. Kalaben Kalabhai Desai v. Alabhai Karamshibhai Desai 2000(2) Femi Juris 337. The Hon'ble Single Judge held in this case that normal rules applied is to award 1/3rd of income of husband to wife and child from the date of application under Section 24 of the Hindu Marriage Act.
V. S.S. Bindra v. Tarvindra Karu . In this case the learned single Judge opined that net income of the husband may be divided equally between family members with one extra portion/share being allotted to earning spouse.
VI. Chandrikaben Chhanalal Patel v. Rameshchandra Chandilal Patel 1986 (1) DMC Gujarat 232. The learned Single Judge observed that contribution towards provident fund or payment of installments towards loan cannot be deducted from the total earning while fixing maintenance under Section 125 CrPC.
VII. Dharmi Chandra v. Smt Sobha Devi . It was held that general rule is that wife should not be relegated to a lower standard of living than that which the husband enjoys.
VIII. Shivani Chattopadhyaya v. Siddnath Chattopadhyaya 2001 AII CJ (S.C) 174. In this case the Hon'ble Supreme Court while determining the interim maintenance under Section 125 CrPC for wife and child granted 6000/- Rupees as interim maintenance. In this case the husband was D.I.G. and there was dispute in respect of his entire income.
IX. Rekha Deepak Malhotra v. Deepak Jagmohan Malhotra . In this case allegations were made by wife against adulterous husband and of cruelty which was not condoled by wife. The plea that wife left matrimonial home voluntarily was not found tenable and, therefore, wife was held to be entitled for maintenance. Keeping in view the provisions of Section 18 of the Hindu Adoption and Maintenance Act in respect of quantum it was held that it should aid the wife to live in a similar style as she enjoyed in the matrimonial home.
X. Smt. Renu Jain v. Mahabir Prasad Jain AIR 1987 Delhi 43. In this case it was laid down that the wife and child are entitled to live according to the status of the husband.
XI. Smt. Tarun Batra v. S.R. Batra . According to the facts of this case on further deterioration of relations and on becoming difficult to stay in matrimonial house the wife shifted to her parent's residence. Subsequently she was denied entry to her matrimonial house by the respondents which was not found proper because she has a right to stay in her matrimonial house. More so when her husband applied for divorce, the respondents cannot deny her access to her matrimonial home or interfere in her possession thereof.
XII. Basudeb Dey Sarkar v. Smt. Chhaya Dey Sarkar . In this case also it was held that where matrimonial dispute is pending between the spouses, the wife is not a licensee or trespasser. Her right to reside there continues till it is terminated in matrimonial proceedings.
XIII. Smt. Gurmeet Kaur v. Gur Raj Singh . In this case the learned Additional District Judge, Amritsar declined maintenance to wife and minor son observing that it would quietly nudge her towards taking a less harsh view of her husband's behaviour towards her. It was held by the learned single Judge that it amounted to refusal of maintenance pendente lite and expenses of litigation to the wife and her minor child to pressurise the wife to reconcile her differences with her husband and, therefore, it has to be branded as a patent misuse of the provisions of Section 24 of the Hindu Marriage Act.
XIV. Radhikabai v. Sadhu Awatrai AIR 1970 Madhya Pradesh 14. In this case the Division Bench held that merely because a potential capacity to earn something is found in the wife, the Court cannot refuse to grant her maintenance. It was further held that Section 24 of the Hindu Marriage Act does not envisage that customary ornaments may be taken into account for the purpose of income nor can the Court refuse maintenance on the ground that wife can pull on for some time by selling her ornaments.
XV. Pratima Singh v. Dr. Abhimanyu Singh Parihar 1986 (1) DMC 301 M.P. In this case the Hon'ble single Judge modified the order passed by the trial court and awarded the pendente lite maintenance at the rate of 50% of the income of the husband, after deducting the amount for uncertainties.
XVI. Savita Aggarwal v. R.C. Aggarwal 1991(1) DMC 18 (P&H). According to ratio of this case even if the entire salary is deposited as contribution towards General Provident Fund etc. that will not deprive the petitioner of her right to get maintenance pendente lite.
XVII. Smt. Krishna Kumari v. IV ADJ Hamirpur AIR 1989 Allahabad 198. The Hon'ble single Judge of our own High Court in this case has held that the appellate court must be slow and cautious in granting demand in the case under Section 24, 28 of the Hindu Marriage Act. In this particular case the order of trial court was not found to be callous or capricious. Therefore, it was held that the appellate court in such cases must not interfere in the order of the trial court.
XVIII. Harmindra Kaur v. Sukhwinder Kaur 2002(2) Femi Juris CC 292 Delhi. This case law also deals with maintenance to wife and child under Section 125 Cr.P.C. The income of the husband was found to be Rs. 12,000/- per month and considering the equal status of the wife who was to live with the child the amounts of Rs. 4800/- for wife and Rs. 2400/- for the child were awarded by dividing the income of the husband in 5 units, two units each for adults and one unit for the child.
XIX. Ruma Chakraborty v. Sudha Rani Banerjee 2005 (36) A I C 398 (SC). The Hon'ble apex Court while dealing with the matter in Hindu Adoption and Maintenance Act held that the intention of the legislature by including clothing, residence etc. was to provide for real maintenance and not a bare or starving maintenance.
XX. Pradeep Kumar Kapoor v. Ms. Shailja Kapoor . While defining ''maintenance' and ''support' under Section 24 of the Hindu Marriage Act it was laid down that the definition of ''maintenance' as given in Hindu Adoption and Maintenance Act should be adopted. It was held that in deciding the application under Section 24 of the Act the Court has to act in accordance with sound judicial principles and cannot act in an arbitrary manner to the prejudice of either of the parties.
8. The following principles were found to be relevant for the purpose:
(1) Position and status of the parties.
(2) Reasonable wants of the claimant towards food, clothing, shelter, medical attendance with treatment, education and the like.
(3) Income of the claimant.
(4) Income of the opposite party.
(5) Number of persons the opposite party is obliged to maintain.
9. As a corollary the following point was also added:-In arriving at the income of a party only involuntary deductions like income tax, provident fund contribution etc. are to be excluded.
In this case law the following case laws were also considered:
(i) Ashit Mukherjee v. Smt. Susmita Mukherjee
(ii) L.R. Rajendran v. Gajalakshmi AIR 1985 Madras 195
(iii) Rajambal v. Murugappan
(iv) Dev Dutt Singh v. Rajni Gandhi AIR 1984 Delhi 320
(v) Preeti v. Ravind Kr. Sharma
(vi) Baboolal v. Prem Lata XXI.Shakti Pershad v. Ratna Pershad 2003 (1) HLR 491. In this case it was held that the wife is entitled to maintenance according to the status of her husband.
10. The gamut of all the aforesaid case laws is that as long as matrimonial ties subsists between the parties, the wife is entitled to live in the matrimonial house or in a separate building. The wife should not be relegated to a lower standard of living than that the husband enjoys. She should be given maintenance according to status of her husband. While considering the question of ''maintenance pendente lite' under Section 24 of the Hindu Marriage Act its definition as given in Hindu Adoption and Maintenance Act should be adopted and some significant points should necessarily be taken into account such as (i) position and status of the parties, (ii) reasonable wants of the claimant towards food, clothing, shelter and medical attendance etc., (iii) income of the respondent, (iv) income, if any, of the claimant, (v) number of persons the respondent is obliged to maintain. As regards quantum of maintenance it may be from 1/3rd to 50% of the income of the respondent but no rigid formula can be fixed. It may differ from case to case. The contributions towards General Provident Fund and payment towards instalments of loan etc. should not be permitted to be deducted to work out the carry home salary. The maintenance should not be refused on the ground that the wife can pull on for some time by selling her ornaments etc.
11. Now we propose to consider the point of ''maintenance pendente lite and expenses of proceedings'. The relevant provision envisaged in Section 24 of the Hindu Marriage Act are extracted hereinbelow:
24. Maintenance pendente lite and expenses of proceedings.- Where in any proceeding under the 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.
12. In the case before us the appellant-wife does not appear to have an independent income sufficient for her support and to meet the necessary expenses of the proceedings. There is neither any plea nor any evidence on record to that effect. The only contention is about her potential capacity to earn some thing as pointed out by the learned Counsel for the respondent, but that cannot be a ground for refusing to grant her maintenance as was held in the case of Radhikabai (supra). Similarly she cannot be refused maintenance on the ground that she can pull on for some time by selling her ornaments etc. towards which the respondent has indicated in his reply as further pointed out by learned Counsel for the respondent. On the same analogy fixed deposits of approximately 1.5 lac rupees in the name of wife, as emphasized by the learned Counsel for the respondent and the respondent in person, also cannot be an impediment in granting maintenance. In this case the maintenance pendente lite has been refused by the learned Judge, Family Court, Lucknow simply on the ground that she has been admittedly living with her husband in the official residence and it has not been said by the wife that due to alleged behaviour of her husband she has become dependent on any body else. It is true that the appellant-wife has been living with her husband in 5/2 Senior Police Officers Colony, Vibhuti Khand, Gomti Nagar, Lucknow which is allotted to the respondent. But presuming that she is living there with all amenities also and therefore refusing to grant maintenance on this ground cannot be said to be justified. It transpires from the record that there are allegations and counter allegations against each other. The husband has filed a suit for judicial separation while the wife has filed separate suit for restitution of conjugal rights. Both the parties are not willing to live with each other and even reconciliation proceedings could not materialize. The allegations which both the parties are levelling against each other are such that probably it is not possible for them to live together and lead the normal life as husband and wife. According to wife for the last few years her husband, in the garb of religion, has been trying to adopt wrong path. He admittedly claims himself to be an incarnation of Radha, wears ear rings, nose ring, Payal and applies polish on his nails. In a female attire he performs Raas Lila with ladies etc. inside the residential house and also elsewhere. Several times he tried to oust her from that residence by beating her and by creating such type of activities. At times he also tried to assert the authority of a police officer so that she may leave that house. But in the absence of any alternative, she was compelled to continue to live with her husband in the same house. It is needless to say that either of the spouse has a right to live with dignity. It has also been specifically contended by the appellant in the lower court that her husband has snatched away all the amenities such as electricity, telephone, car, servants, food and clothing etc. which were available to her due to the status and service of her husband. It was also specifically contended that due to this reason her sons were helping her out but she did not want to part with her right to have maintenance from her husband. It is not disputed that the spouse has two sons. While the elder son is a senior IRS officer working in Bombay and living there with his family the younger one is unmarried but serving in Bangalore with a reputed company. The learned Counsel for the respondent as also the respondent in person laid much emphasis that the younger son who is unmarried and serving in Bangalore and is getting a handsome salary is very close to his mother and he has also undertaken to bear all the expenses of his mother (appellant) as per E-Mail sent by him. But on this ground a wife cannot be deprived from getting maintenance from her husband under Section 24 of the Hindu Marriage Act. Therefore, we find that the learned lower court was not justified in presuming that since the wife was admittedly living with the husband in the same house, she was also getting all amenities and every item of basic needs. As already mentioned the appellant has also said that her sons are also giving their help to her. Therefore, it was also not proper to observe, as mentioned in the impugned order, that she has not even said that due to alleged mal treatment and behaviour of her husband, she has become dependent on some body else. Therefore, the finding of the learned lower court on this point cannot be sustained. Section 24 of the Hindu Marriage Act does not lay down any condition precedent for awarding maintenance. The only ingredient is that the husband or the wife, as the case may be, should not have independent income sufficient for his or her support and necessary expenses of the proceedings. We have already found that the appellant-wife has no such independent income sufficient for her support and expenses of the proceedings. Finally, therefore, we find that the appellant-wife is entitled for maintenance pendente lite and the expenses of the proceedings.
13. Now we have to look into the quantum of the maintenance and expenses of the proceedings. In this regard the appellant's own income and the income of the respondent have to be taken into consideration and thereafter an amount which may appear to be reasonable has to be awarded. It is needless to say that maintenance pendente lite has been claimed in both the cases by the same appellant-wife and, therefore, only one maintenance pendente lite has to be awarded. There is no quarrel with the proposition that such maintenance should normally be awarded from the date of application. Out of the two separate applications the application dated 11.02.2004 is the earlier one. Therefore maintenance has to be granted with effect from 11.02.2004. Coming again on the point of quantum we have already discussed hereinabove that the appellant-wife has no income and her potential capacity to earn some thing is not relevant for the purpose of the relevant section. As regards income of the respondent-husband there does not appear to be any dispute in respect of the details of the salary as on January, 2005, as mentioned in the impugned order and also in paragraph 4 (at page 3) of this judgment. Thus the salary of the respondent as on January, 2005 (immediately before the date of application given on 11.02.2004) was admittedly Rs. 37544/-. The following were the permissible deductions, excluding contribution towards General Provident Fund which being not involuntary are not permissible deduction as was held in the case of Savita Aggarwal (supra):
14. Thus total carry home salary of the respondent as on January, 2005 can be said to be Rs. 37544.00 - 8720.00 = Rs. 28824.00. Having regard to the fact that the appellant-wife is entitled to maintenance according to the status of her husband, who has been Inspector General of Police in the present case, a reasonable amount has to be fixed as maintenance. The respondent is not obliged to maintain any body else because, as mentioned above, his both the sons are admittedly well settled and they are earning sufficiently. The appellant has reasonable wants towards food, clothing, medical attendance etc. As regards shelter it is admitted fact that she has been living in 5/2 Senior Police Officers Colony, Vibhuti Khand, Gomti Nagar, Lucknow which is allotted to her husband and she is still continuing to live in that house as has been indicated during the course of arguments on behalf of the respondent. Now the respondent stands voluntarily retired with effect from 28.11.2005 and, therefore, the appellant may have to vacate that house in near future, but the position as it stands today is that while fixing quantum of maintenance presently the need of house has to be excluded. It may be mentioned that the Hon'ble Division Bench comprising Hon'ble Mr. Justice U.K. Dhaon and Hon'ble Mr. Justice S.S. Chauhan had fixed Rs. 7000/- per month as interim maintenance vide order dated 10.11.2005 passed in these appeals. Keeping in view all the facts and circumstances and the discussion made hereinabove, it stands to reason to award 1/3rd of the aforesaid amount of salary of respondent which comes to Rs. 9608.00 (28824 ? 3) i.e. Rs. 9600/- in round figure till the date of retirement. After his voluntary retirement with effect from 28.11.2005 the respondent will be getting pension instead of salary which normally comes to half of the amount of working salary. A proposed calculation chart of pension after commutation has been filed by the respondent himself but it has been indicated on his behalf that due to non-vacation of government residence by the appellant the required no objection certificate is not being issued due to which he is not getting pension as yet. It has also been argued on behalf of the respondent that after the date of his retirement his income will be reduced to almost half of the salary. This argument has substance. As per the pay certificate filed by the respondent himself as annexure-2 to his affidavit dated 17.10.2005 his salary was Rs. 38231.00 (without any deductions). If we take it in the round figure of Rs. 40,000/- then its half amount would be Rs. 20,000/- (without commutation). Therefore with effect from 28.11.2005 the amount of maintenance pendente lite should be fixed at Rs. 6666.00 (20,000?3) i.e. Rs. 6700/- in round figure
15. So far as litigation expenses for both the cases are concerned, although in Family Courts the lawyers were not permitted to participate but during the course of time the position has changed. The cost of stationary, typing charges etc. are also increasing day by day. Therefore, the amount of Rs. 2500/- each deserves to be enhanced to Rs. 6000/- in each case as litigation expenses to be paid by the respondent.
16. Accordingly both the appeals are partly allowed and the impugned order dated 16.09.2005 passed by the Principal Judge, Family Court, Lucknow is modified to the extent that the respondent shall pay an amount of Rs. 9600.00 per month as maintenance pendente lite to the appellant with effect from 11.02.2004 (the date of first application) and an amount of Rs. 6700.00 per month as maintenance pendente lite with effect from 28.11.2005 (the date of voluntary retirement of the respondent). The respondent shall also pay a sum of Rs. 6000.00 as litigation expenses in each case.