IRAC Analysis of Kumaresan Vs. Awasthi

 IRAC Analysis of Kumaresan Vs. Awasthi

Issue:

Whether the respondent has sufficient independent income and consequently, the right to claim alimony and litigation expenses under Art. 24 of Hindu Marriage Act, 1955?

Rule:

Section 24 of The Hindu Marriage act, 1955 deals with the provision of allowing pendente lite. If the court is satisfied that either the husband or wife does not have sufficient independent income for the litigation expenses and to support himself/herself, then it can order the respondent to pay the maintenance to the petitioner in accordance with the provision of the section. 

A requisite condition for the grant of maintenance pendente lite as per this section is that the petitioner should not have sufficient independent income to support herself/himself and if s/he does, then Section 24 will not be applicable and no amount as maintenance pendente lite will be awarded to the petitioner. 

Application:

In this case, the respondent in the affidavit filed by her before the Subordinate Judge had contended that she is reasonably claiming maintenance pendente lite from the petitioner as he is an employee of BHEL, Trichy and his salary is Rs. 60,000 per annum.

Responding to this, the petitioner has claimed that the respondent is not eligible to receive alimony and litigation expenses because she is an employee at Kadhi Craft at 'B' Sector Shopping Centre, Township, BHEL, Trichy and she receives a bonus amount and salary of Rs. 4500 per month. This was also stated in paragraph 6 of the affidavit filed before the Subordinate Judge. The counsel for the petitioner also contended that the petitioner alone is bearing the expenses of the two children of both the parties.

Conclusion:

The facts of the case are inconclusive as the wife remained absent from the proceedings and there is inadequate evidence to prove whether she has sufficient independent income to support herself. In these peculiar circumstances, even though it was the petitioner’s duty to examine the concerned official from the respondent’s office in order to support his claim and the court would normally not try to protect a litigant who fails to reasonably prosecute the matter, it gave one more chance to the petitioner to prove his claim before the trial court for fresh disposal.

Commentary on Section 24 of Hindu Marriage Act, 1955

A. Section 24 of Hindu Marriage Act has provision for Maintenance pendente lite and expenses of proceedings. In cases, where the court is of the opinion that either the wife or the husband has no independent income sufficient to support himself/herself and the necessary expenses of the proceeding, it may, on the application of the wife/husband, order the respondent to pay the petitioner the expenses of the proceeding, and a monthly amount during the proceeding as deemed fit by the court having regard to the petitioner's own income and the income of the respondent.

B. Provided that the application for the payment of the expenses of the proceeding and such monthly amount during the proceeding shall be disposed of, within sixty days from the date of service of notice to the wife/husband.

C. As far as maintenance pendente lite and expenses of proceedings are concerned, no distinction has been made under section 24 of the Act relating to the right of a wife for maintenance preferred under section 12 or 13 of the Act.

D. When a divorce proceeding has terminated adversely but an appeal is pending, the wife's claim for maintenance qua wife under the definition contained in the explanation (b) to section 125 of the code continues unless parties make adjustments and come to terms regarding the quantum or the right to maintenance. It is clear that mere divorce does not end the right to maintenance.

E. During the pendency of the divorce proceedings at any point of time if the wife establishes that she has no sufficient independent income for her support, it is open to her to claim maintenance pendente lite.

F. Section 24 entitles not only the wife but also the husband to claim maintenance pendente lite on showing that he has no independent source of income. However, the husband will have to satisfy the court that either due to physical or mental disability he is handicapped to earn and support his livelihood.

G. Pending an application either under Rule 5 of Order 9 or Rule 9 of Order 9 or Rule 13 of Order 9 of the Code of Civil Procedure a spouse is entitled to maintain an application under section 24 of Hindu Marriage Act, 1955. The expression proceedings under the Act appearing in section 24 cannot be given a narrow and restrictive meaning.