- (1.) THIS Civil Revision is directed against an order passed by the 1st Additional District Judge, Allahabad dated 30th March, 1978 on an application made under Section 24 of the Hindu Marriage Act, 1955. In a suit filed by the husband for the dissolution of the marriage under S.13 of the Act, the wife made an application for maintenance, pendente lite and expenses for legal proceedings. After considering the respective cases the court below passed an order directing the husband to pay a sum of Rs. 100/- per month as maintenance and Rs. 100/- for expenses in the legal proceedings. The wife aggrieved by the above order has come up to this Court in revision stating that the court below has committed material irregularity in exercise of jurisdiction in passing the aforesaid order. It was urged that certain materials on record have not been taken into consideration with the result that a completely erroneous order has been passed.
(2.) I have heard the learned counsel for the parties. Normally, the question as to what should be the quantum of maintenance and the amount of expense for legal proceeding is a pure question of fact to be decided upon by the trial Court. The Court trying the suit is in the best position to assess as to what should be the amount of maintenance and also estimate the amount of expense that ought to be provided to the party asking for it. S.24 of the Hindu Marriage Act provides for payment of maintenance pendente lite and expenses of the proceedings. It lays down : "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 proceeding, 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". A number of cases were cited showing the mode and method of calculation of the quantum of maintenance allowance and the expenses for legal proceedings. Reference was also made to the provisions of Section 36 of the Divorce Act, which provides for alimony pendente lite. Under the above Act, only the wife is to be paid an alimony pendente lite not exceeding one-fifth of the husband's average net income for 3 years preceding the date of the order. The Hindu Marriage Act is silent about this. It cannot be visualised for a moment that the framers of the Act were not aware of the provisions in the Divorce Act. If they did not provide for a maximum limit in the Marriage Act, it must be presumed that this was done with an intent to leave the matter to the discretion of the Court. I am, therefore, of the opinion that neither a minimum nor a maximum amount in terms of percentage can be fixed for the maintenance allowance under the Hindu Marriage Act. The quantum will always depend on the circumstances of the case. The Legislature in its wisdom did not want that there should be any restriction on the Court and therefore, no percentage of the income was fixed. Sec. 24 of the Hindu Marriage Act, however, makes it clear that no amount as maintenance is to be paid either to the wife or the husband, as the case may be where they have sufficient income for her or his support and the necessary expenses for the legal proceeding. Where, however, either of them does not have sufficient income, the Court may, having regard to the income of the parties, pass an order for the payment of monthly amount and the expenses for litigation as may be reasonable. It is clear from the above that both parties have income the Court must take that into consideration before ordering the payment of any maintenance allowance or expenses for proceedings. If the applicant has the income and the opposite party does not, and the latter makes an application the Court is bound to make an order in favour of the latter and vice versa. Section 24 of the Hindu Marriage Act, therefore, makes it clear that a reasonable amount has to be paid as maintenance allowance. What is reasonable amount will differ from case to case. It must be remembered that S.24 does not stipulate anything about the standard to be maintained by either of the parties. Section 24 also does not stipulate that the wife must be maintained at the same standard as the husband or vice versa. Similarly, S.24 does not lay down as to what should be the amount in a litigation under the Hindu Marriage Act for meeting the expenses of the proceedings. This too has also not been laid down in Section 24 of the Act, except to say that the amount shall be a reasonable one taking into consideration the income of the parties. It is, therefore, apparent that the entire discretion is left with the Court.
(3.) THE question, therefore, arises as to how the discretion should be exercised. It is well settled that a discretion must be exercised in a reasonable and proper manner, and not arbitrarily or capriciously. An order is a reasonable order which takes into consideration the various circumstances, for example, the means and the income of the parties, the nature of the litigation and allied circumstances. Section 24 uses the word "support" and does not use the word "standard" or "status". It is clear that the Court must keep in view that one cannot live like a Lord and the other like a maid nor can one live like a princess and the other like a servant. THEre must be same balance. It cannot be that while one lives in penury the other lives in grand style. THE object of Section 24 is to provide the financially weaker party with some modicum of funds so that he or she, as the case may be, may contest the litigation. Every matrimonial suit is galling to the parties. It lays bare their personal problems. THEir failure to adjust becomes a matter of discussion in Court. THE sanctity of the matrimonial relationship is a confidential and private affair, but the same does not remain so once the matter comes to Court. Both the parties, howsoever high they may be, have to come to Court, lead evidence and contest the suit. It means that they have to come to Court a number of times. It also means expense. It is also well known that a suit does not conclude even if it be a matrimonial suit early. It takes time. How is the party, the weaker party to maintain himself or herself, as the case may be during the period the proceedings are pending. Justice demands that their equities be adjusted. It is, therefore. necessary for the Court to find out the respective income of the parties and the means they have. If a party has sufficient means, the Court may not allow her litigation expenses, but where it is shown that the party does not have an income or means the Court must order payment under both the heads. What should be the reasonable amount would be decided by the Court taking into consideration the various factors e.g. means the party has, the support the party is having from his or her parents and the means of the other party. Supposing a party is having an income of Rs. 1,000/- per month, the Court must also take into consideration what are the necessary expenses of that party in discharge of his duties. Such amount should be deducted before arriving at the amount which is available. Necessary expenses would mean the expenses that are connected with his service or job or business which has necessarily to be made so that the service or the job or the business may continue. It does not include any amount that has to be spent towards entertainment or the like. If a party has to gay insurance premium or provident fund or income-tax, those are necessary expenses which must be deducted from the gross income to arrive at a net income. Similarly, the party would be requiring some amount to meet his or her daily needs. Such amount must also be considered as necessary expenses. It would, therefore, be seen that probably 50 or 60 per cent of the income of a person would go towards necessary expenses. It would leave a much smaller sum available. It is that figure which should be taken into consideration for finding out as to how much of it could be spared for the other side, but at the same time the Court must keep in view the income or means or the support the other party is already having. If the Court comes to the conclusion that even if she has no income but she has the support of her parents or such others, the Court may award a nominal monthly amount towards maintenance and a sufficient sum for meeting the expenses for the legal proceedings. As seen above, these are the relative terms and would depend an the facts and circumstances of each case. I was referred to certain decisions of the various High Courts reported in the Matrimonial Law Reporter of 1977 and 1978. In the case of Sita Ram Agrawal v. Smt. Krishna 1977 Mat LR 1, the Rajasthan High Court was considering a Misc. Appeal against the order of the District Judge, and the Court decided that the maintenance should be 1/5th of the husband's income. As I have indicated there is no hard and fast rule for allowing 1/5th or 1/4th or 1/3rd of the income of the husband as maintenance allowance. In the case of Mrs. Sarita Mehta v. Captain Arvind Kumar Mehta (1978 Mat LR 117 (Punj)) the court was considering the meaning of the words "During the proceedings" under S.24 of the Act in a Civil Revision. It was stated there "in order to avoid starvation or destitution, monthly maintenance was provided." It was further held that the term during the proceedings "would cover the proceedings from the start till the end or at least from the date the application is made till the termination of proceedings in the Court." A reference was also made to the decision of the Allahabad High Court reported in (AIR 1974 All 110, Surendra Kumar v. Smt. Kamlesh). The Court held that the relief under S.24 can be granted even if an objection was raised that the Court has no jurisdiction to decide the suit. It was further held in this decision that the revision application under S.115 is also a proceeding under the Act. The Supreme Court in the case of Dr. Kulbhushan Kunwar v. Smt. Raj Kumari (AIR 1971 SC 234) was considering the question of claim for maintenance by wife and daughter under S.23(2) of the Hindu Adoptions and Maintenance Act, 1956. It may be mentioned here that the aforesaid provision is far more elaborate than the provision of Section 24 of the Hindu Marriage Act. S.23(2) inter alia states that in determining the amount of maintenance, if any, to be awarded to a wife, children or aged or infirm parents, regard shall be had to :- (a) the position and status of the parties; (b) the reasonable wants of the claimant; (c) if the claimant is living separately, whether the claimant is justified in doing so; (d) the value of the claimant's property and any income derived from such property, or from any other source; (e) the number of persons entitled to maintenance under this Act. It would therefore, be seen that the consideration that will weigh with the Court is vastly different from that in the case under the Hindu Marriage Act. The Supreme Court relied upon the observations of the Privy Council in the case of Mst. Ekradeshwari v. Homeshwar (AIR 1929 PC 128), the substance of which was that what circumstances must be taken into consideration. I have already indicated the principles which should govern the grant of maintenance under S.24 of the Hindu Marriage Act.;