MISRA, J. - (1.) THIS is an application for grant of maintenance to the appellant Smt. Rekha, wife of the respondent Dr. Mohan Lal, as also to her minor son aged four-and-a half years, who is a school going child. It has been stated that the appellant has been receiving only Rs. one thousand towards maintenance under Sec. 125 of the Cr. P. C. , which is a very meagre amount and is not sufficient to maintain herself and her child and, therefore, she has filed this application claiming maintenance under Sec. 24 of the Hindu Marriage Act, 1955 (for short `the Act' ).
(2.) THE counsel for the respondent husband has vehemently opposed this application. At one stage the respondent himself also addressed the court opposing the application and it was submitted that the appellant wife Smt. Rekha is a self sufficient lady who is employed in the ICICI Bank at Jaipur, which is working as a franchise of the Bank. It has been stated that she is employed in a high salaried job and is also drawing rental income out of some property. It has, therefore, been submitted that the appellant wife is not an indigent person so as to claim maintenance under Sec. 24 of the Act, as under the said provision the husband or the wife is entitled to maintenance only if in the opinion of the court he or she is not in a position to maintain himself/herself as also to sustain the expenses of the proceedings which is pending. THE respondent husband and his counsel, therefore, have asserted that it is not a fit case where the maintenance should be granted to the appellant wife. The appellant wife and her counsel, however, have a different story to narrate. It has been stated that she is not in a regular job and has merely sought training in the ICICI Bank and she had received certain stipend on account of this training. According to her she is going through a grave financial hardship and is not in a position to maintain herself and her child. From the aforesaid version and counter version of the contesting parties it is obvious that the proof regarding income of the wife is not undisputed and there is no evidence before this court in this regard. But the fact remains that the child is living with the appellant-mother and the respondent-husband is living separately and he has been paying only a sum of Rs. one thousand to his wife towards maintenance ignoring the expenses which are required to be incurred for the maintenance of his child. The counsel for the respondent-husband sought to impress upon the court that grant of maintenance to the child cannot be considered while entertaining an application under Sec. 24 of the Act as this provision does not envisage maintenance to the children of the contesting couple. A similar plea was taken by the husband in the matter of Jasbir Kaur Sehgal (Smt.) vs. District Judge, Dehradun & Others, reported in (1997) 7 SCC 7, wherein the question arose where the child could be granted maintenance along with the wife under Sec. 24 of the Act. Learned Judges of the Apex Court in this case were pleased to hold as under:-      " Section 24 of the Act no doubt talks of maintenance of the wife during the pendency of the proceedings but this section, in our view, cannot be read in isolation and cannot be given restricted meaning to hold that it is the maintenance of the wife alone and no one else. " In the said case, while granting maintenance to the wife, her right to claim maintenance for her daughter also was allowed as it was held therein that the fact has to be kept in view while fixing the maintenance pendente lite for the wife that maintenance has to be granted to the children also as no set formula can be laid for fixing the amount of maintenance it has to be in the very nature of things to depend on the facts and circumstances of each case, although some scope for leverage can always be there. While granting maintenance, 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 who he is obliged under the law to maintain. The learned Judges further held therein that if the wife has no source of income, it is the obligation of the husband to maintain her and also the children of the marriage on the basis of the provisions contained in the Hindu Adoptions and Maintenance Act, 1956, but while holding so, the court unequivocally acknowledged the right of the wife to claim maintenance for her children also under Sec. 24 of the Act, which is the clear ratio of the judgment delivered in the said case.
(3.) IN the light of the aforesaid decision of the Supreme Court the interest of the minor son along with the wife has to be taken care of by the court while granting maintenance pendente lite specially when the husband has failed to prove independent source of income of his wife to sustain herself. Besides this, the fact remains that the child cannot be held to be the sole responsibility of the mother so as to incur expenses when the father is very much alive and is having sufficient source of income. IN the instant matter, the respondent husband is drawing a gross salary of Rs. 15,853/- and what exactly is his net salary cannot be a matter of consideration for this court as it is clearly within the discretion of the husband what income is he drawing by way of net salary after the deductions. The child is a school going child and it is stated that a sum of Rs. one thousand is being paid as his tuition fee and obviously there are other incidental expenses also which are incurred on the education of the child. No proof in regard to the income of the wife has been furnished as already recorded, and therefore, we deem it appropriate to award maintenance to the appellant wife to the extent of Rs. 3000/- per month, out of which Rs. 1000/- is already being paid to the appellant. Thus in addition a sum of Rs. 2000/- shall be paid to the appellant wife from 1. 2. 2006 and in-all she will receive a sum of Rs. 3000/- per month from February 2006 from the respondent-husband. The application, in view of the aforesaid order, is allowed and disposed of. .;