BIBI BALBIR KAUR KATHURIA Vs. RAGHUBIR SINGH KATHURIA

JUDGEMENT

(1.) DURING the pendency of the husband's petition for restitution of conjugal rights against his wife under Section 9 of the Hindu Marriage Act, 1955 (hereinafter briefly referred to as 'the Act') both spouses had applied for interim maintenance under Section 24 of the Act. The husband's application for interim maintenance was dismissed and he has not filed any appeal. The wife, Shrimati Balbir Kaur, m. A. , B. Ed. , was granted interim maintenance at the rate of Rs. 35/- per months by the learned trial Court in spite of the fact that she is possessed of multiple academic degrees and her husband Shri Raghbir Singh, respondent, is a foreign qualified Engineer. She feels, naturally, aggrieved and has come up in appeal.

(2.) THE parties were married in 1965 and could live together for hardly a couple of years, two children, a female aged about 5 years and a male aged about 3 years today were born during this wedlock and both of them are in the custody of the appellant. The minor girl has had an attack of polio while the boy had to be operated upon for hernia. The appellant is apparently bearing the expenses of the medical treatment and the bringing up of the two minor children. In spite of the status in life of the parties, the appellant has been granted interim maintenance at a meagre rate because her husband had resigned his job with a salary of about rs. 500/- per month and has not been able to secure some other job to his high expectations. One other reason given was that Shrimati Balbir Kaur was employed as a teacher in a private institution at Amritsar even though there was no satisfactory evidence that she was getting anything more than Rs. 50/- per month as stated by the Principal of the institution that she was serving. The respondent is, however, an able-bodied, well-qualified Engineer and he cannot so easily disown his liability to maintain his wife and children. The appellant had filed a written statement in the main case alleging that she was being ill-treated with cruelty by her husband and had received a number of beatings; but the question of the correctness or otherwise of these allegations has to be decided on the basis of evidence which has yet to be examined by the parties in the Court below. This should not, however, stand in the way of a proper order for interim maintenance being passed at the earliest stage of the proceedings. The respondent would, in any case, have a joint responsibility for the maintenance of the two children even if the appellant's contention that he alone is liable is described as a moot point at this stage. This maintenance for the children has to be consistent with the status of the highly literate parents. We have also to keep in mind that both the children are not keeping good health and the mother has to bear the expenses of their medical treatment. Considering the times, the expense of bringing up the two minor children with indifferent health would be quite heavy. According to the accepted notions of our society, the father has to bear all these expenses. In addition to their ordinary remedies, the minor children have a summary remedy against their father alone under Section 488 of the Code of the Criminal procedure, but none such against the mother. It has also been held by a Division bench of this Court in Usha v. Sudhir Kumar, ILR (1973) 2 Punj and Har 248, that in the wife's application under Section 24 of the Act, the provision for necessities of the minor children can also be taken into account while fixing the quantum or rate of interim maintenance. Even if the respondent has no job at present, it is in evidence that he has had some offers of jobs which he was not prepared to accept. He cannot, however, leave his wife and children to starve until he comes by a job to his liking. It is difficult to believe that a foreign qualified Engineer would remain without a job for so many years if he had been really keen to secure one. There is no reliable proof that Balbir Kaur has an independent income which would enable her to maintain herself and the two children according to the status in life of the parties and their families. The respondent cannot disown his liability to maintain his family while he is trying to enforce the restitution of his conjugal rights against the wife. Having regard to all the circumstances of the case, an interim allowance of Rs. 100/- per month for the maintenance of the wife and the two children born from the wedlock cannot be described as excessive.

(3.) I, therefore this appeal and direct the respondent to pay the appellant interim maintenance at the rate of Rs. 100/- per month with effect from the date (15-41972)of her application made in the Court of first instance under Section 24 of the act. There is no interference with the amounts fixed as litigation expenses in the two Courts. The parties shall bear the costs incurred by them in this appeal, but this would not entitle the respondent to adjust towards the arrears of maintenance the litigation expenses paid in compliance with my order dated 6-11-1973.