@JUDGMENTTAG-ORDER
T.V. Masilamani, J.@mdashThe respondent who lost in the proceedings before the lower court is the revision petitioner. The respondent/petitioner is the wife of the revision petitioner. She filed the petition under Sections 24 and 26 of the Hindu Marriage Act for interim maintenance at the rate of Rs. 2,500/- per month for herself and Rs. 1,000/- per month to the minor daughter and Rs. 2,500/- towards litigation expenses. However, the respondent contested the claim on various grounds. After considering the evidence available in the case and after hearing both sides, the learned Subordinate Judge passed the impugned order granting maintenance at the rate of Rs. 2,000/- per month to the respondent herein and Rs. 1,000/- per month to her minor daughter, Banupriya as interim maintenance from the date of filing of the earlier proceedings between the parties in H.M.O.P. No. 38 of 2001 and also awarded a sum of Rs. 2,500/- towards litigation expenses. Aggrieved by the said order, the husband has come forward with this revision.
2. The contentions of the respondent before the court below may be set out briefly hereunder:-
The petitioner and her minor daughter Banupriya are unable to maintain themselves, as the petitioner has no independent source of income or funds of her own. She has no fund to contest the main petition also. On the other hand, the respondent, her husband, is working as Junior Operator in Tamil Nadu Industrial Explosives Limited, Katpadi, Vellore and he is getting a monthly salary of Rs. 7,720/-. He has got immovable and movable properties also and therefore, he is legally bound and liable to maintain the petitioner and her minor daughter and she claims Rs. 2,500/- per month and Rs. 1,000/- per month respectively towards their maintenance. The respondent is also liable to pay Rs. 2,500/- towards the litigation expenses.
3. The averments in the counter statement filed by the revision petitioner/respondent are as follows:-
The allegations in the petition that the respondent is getting Rs. 7,720/- per month as salary and that he has also got movable and immovable, properties are false. On the contrary, he is earning only a sum of Rs. 4,500/- per month by way of salary and out of the said amount, he is giving Rs. 2,000/- per month to his aged parents. The petitioner''s father is working as Manager in a bank. She has got lot of jewels and cash and therefore she has got independent source of income to maintain herself and her child.
4. Heard Mr. V. Lakshminarayanan, Learned Counsel for the revision petitioner and Mr. Karthick, Learned Counsel for the respondent.
5. The Learned Counsel for the revision petitioner has submitted the following in support of the revision:-
The revision petitioner is unable to maintain himself and his aged parents out of his salary income. On account of estrangement, the respondent has instituted this proceedings in the application for divorce filed by the revision petitioner. The learned Subordinate Judge failed to appreciate the probable expenses incurred by the petitioner out of his net salary income. Similarly, the fact that the petitioner is having properties worth several lakhs of rupees and that there is no necessity to seek for maintenance is also lost sight of while appreciating the respective contentions of the parties to the proceedings. Non-examination of the respondent before the court below is fatal to the proceedings initiated by her.
6. As regards the first contention of the Learned Counsel for the respondent that the revision petition is not maintainable in view of the amended provision u/s 115 C.P.C., he has drawn my attention to the decisions reported in 2003 (6) S.C.C. 659 (Shiv Shakti Co-operative Housing Society v. Swaraj Developers) and 2003 (6) S.C.C. 675 (Surya Dev Rai v. Ram Chander Rai) and argued that in view of the proviso u/s 115(1) C.P.C. the order under challenge is not revisable.
7. On the contrary, the Learned Counsel for the revision petitioner has relied on the decision AIR 1970 S.C. 406 (Baldevdas v. Filmistan Distributors) and contended that the impugned order is revisable u/s 115 C.P.C. In this respect, he has also drawn the attention of this court to the ratio laid down in 2003 (6) S.C.C. 659, the decision cited by the Learned Counsel for the respondent himself in support of his further contention that if the impugned order does not finally decide the dispute between the parties, the revision u/s 115 C.P.C. is not maintainable and that if the said order gives a finality to the controversy between the parties, the revision is maintainable. He has contended that even the other decision 2003 (6) S.C.C. 675 also has laid down the law on this aspect of the matter in the same line.
8. The provision u/s 115 C.P.C. reads as follows:-
115. Revision:-- (1) The High Court may call for the record of any case which has been decided any Court subordinate to such High Court and in which no appeal lies thereto, and if such subordinate Court appears--
(a) to have exercised a jurisdiction not vested in it by law, or
(b) to have failed to exercise a jurisdiction so vested, or
(c) to have acted in the exercise of its jurisdiction illegally or with material irregularity, the High Court may make such order in the case as it thinks fit.
Provided that the High Court shall not, under this section, vary or reverse any order made, or any order deciding an issue, in the course of a suit or other proceeding, except where the order, if it had been made in favour of the party applying for revision, would have finally disposed of the suit or other proceedings.
(a) the order, if it had been made in favour of the party applying for revision, would have finally disposed of the suit or other proceeding, or
(b) the order, if allowed to stand, would occasion a failure of justice or cause irreparable injury to the party against whom it was made.
(2) The High Court shall not, under this section, vary or reverse any decree or order against which an appeal lies either to the High court or to any Court subordinate thereto.
(3) A revision shall not operate as a stay of suit or other proceeding before the Court except where such suit or other proceeding is stayed by the High Court.
Explanation: In this section, the expression "any case which has been decided" includes any order made, or any order deciding an issue; in the course of a suit or other proceeding.
9. A careful reading of the proviso referred supra in the light of the decisions cited above would make it abundantly clear that if the proceedings under question in the revision gives finality to the dispute between the parties in the main case, the revision under the said provision of law is maintainable. Here also the impugned order gives finality to the question of interim maintenance claimed by the respondent from the revision petitioner and therefore this court is of the view that the contention put forth by the Learned Counsel for the petitioner in the light of the above decisions is acceptable. Hence it follows that the revision petition is maintainable.
10. The next contention of the the Learned Counsel for the revision petitioner is that the court below failed to take into account the net income of the revision petitioner and the respondent''s affluent status while deciding the quantum of compensation. Firstly, on the basis of the pay slip of the revision petitioner for the month of March, 2004, it is urged by him that net pay received by him was Rs. 4,320/- per month and that therefore he could not have been able to maintain himself and his aged parents and also to pay interim maintenance as ordered by the court below with the said meagre salary income.
11. On the contrary, the Learned Counsel for the respondent has raised the contention that the gross salary of the revision petitioner even as per the said pay slip is Rs. 8,022/- per month and therefore he has urged that except a couple of deductions made in the gross salary, the other deductions such as loan repayment installment to the tune of Rs. 1,280/- is liable to be included in the net pay of the revision petitioner.
12. On this aspect of the matter, a Division Bench of this court in Kuriakose v. Mrs. Leelie Kuriakose (1958 (1) M.L.J. 393 = (1958) 71 L.W. 405) held that while deciding the quantum of maintenance the net average income of the husband after deducting income tax, contribution towards provident fund, etc., has to be taken into account and therefore in view of the ratio of the decision, I am of the opinion that the categories of deductions enumerated are not exhaustive, but only indicative of the nature of the deductions. Hence, following the criteria laid in the said decision, I consider that the net salary income of Rs. 4,320/- received by the revision petitioner has to be taken into account for the purpose of arriving at the quantum of income in this case. Hence, it follows that the court below erred in computing the net salary income in arriving at the quantum of maintenance.
13. The Learned Counsel for the revision petitioner has relied on 2002 (3) L.W. 594 (Kumaresan v. Aswathi) in support of his contention that the matter has got to be remanded to the court below in view of his specific plea in the affidavit that the respondent has got jewels and other properties wherefrom she is getting sufficient income to maintain herself and the minor child. Though both parties have not let any oral and documentary evidence in support of their respective contentions, the averments in the affidavit and the counter statement have been considered by the court below in order to assess the relative status and other particulars to arrive at the quantum of maintenance. The respondent has not disputed the fact that the revision petitioner has to maintain his parents also. Similarly, the revision petitioner has not raised any dispute with reference to the maintenance of the minor daughter born through the respondent.
14. Though it has been alleged by the revision petitioner in his affidavit that the respondent has got jewels and other properties, the learned Subordinate Judge has rendered a finding of fact on this aspect that such contention put forth by the revision petitioner is not acceptable in the absence of any clinching evidence adduced in that regard. In view of the above finding of fact rendered by the court below, I am of the opinion that the ratio enunciated in the above decision is not applicable to the case on hand. Hence, in the absence of any evidence adduced on either side, only the averments in the affidavit and counter statement have to be scrutinised to arrive at the reasonable quantum of maintenance.
15. While doing so, one has to consider the age of the parents to be supported by the revision petitioner and the minor daughter to be maintained by both the revision petitioner and the respondent. If the above facts and circumstances are taken into account, it is apparent that the quantum of maintenance fixed by the court below is excessive and therefore this court is of the considered view that a sum of Rs. 1,250/- per month to the respondent and Rs. 750/- per month to the minor female child would be just and reasonable quantum of maintenance. Similarly, the respondent will be entitled to Rs. 2,500/- towards the litigation expenses also.
16. Further, the Learned Counsel for the revision petitioner has submitted that the court below erred in fixing the date of commencement of interim maintenance as the date of filing of H.M.O.P. No. 38 of 2001. It is not in controversy that the revision petitioner herein filed H.M.O.P. No. 38 of 2001 for restitution of conjugal rights and the same was dismissed as ''not pressed''. In the revision filed by the respondent herein in C.R.P. No. 1331 of 2003 against the order of dismissal of the application for interim maintenance in I.A. No. 53 of 2001 in the said proceedings, this court directed the court below to consider the claim of the respondent for interim maintenance from the date of filing of the said petition in H.M.O.P. No. 38 of 2001 which was dismissed as not pressed.
17 In this context, it is useful to refer to the decision 1997 (7) S.C.C. 7 = 1997-3-L.W. 480 (Jasbir Kaur Sehgal v. District Judge), wherein the Hon''ble Supreme Court held with reference to the date of commencement of the order of interim maintenance as under:-
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. Her right to claim maintenance fructifies on the date of the filing of the petition for divorce under the Act. Having thus fixed the date as the filing of the petition for divorce it is not always that the court has to grant the maintenance from that date. The court has discretion in the matter as to from which date maintenance u/s 24 of the Act should be granted. The discretion of the court would depend upon multiple circumstances which are to be kept in view. These could be the time taken to serve the respondent in the petition; the date of filing of the application u/s 24 of the Act; conduct of the parties in the proceedings; averments made in the application and the reply thereto; the tendency of the wife to inflate the income out of all proportion and that of the husband to suppress the same; and the like. There has to be honesty of purpose in both the parties which unfortunately is lacking in this case. Therefore, the ends of justice would be met if it is directed that maintenance pendente lite as fixed by this judgment to be payable from the date of impugned order of the High Court.
18. Thus, the statement of law on this point is well settled by the ratio of the decision referred supra. After careful reading of the above said decision, this court is of the view that the date of the application filed u/s 24 of the Hindu Marriage Act claiming maintenance pendente lite must normally be the point of time from which the relief would be given to the respondent. Hence, I am unable to subscribe to the view expressed by the learned Judge in C.R.P. No. 1331 of 2003 which in effect does not contain any clause giving mandatory direction to the court below. Hence the respondent is held to be entitled to claim maintenance from the date of filing the application. In this proceedings, the respondent has come forward with the application for interim maintenance immediately after receipt of the notice in H.M.O.P. No. 15 of 2003 and filed the same into court on 23.3.2003, which date in my opinion, is the reasonable date of commencement of the order for interim maintenance.
19. For the reasons stated above, with the above modification both in the quantum and the commencement of the period for which the revision petitioner is liable to pay maintenance, the revision petition has to be ordered. Thus, the revision petitioner is directed to pay interim maintenance to the respondent at the rate of Rs. 1,250/- per month and to the minor female child at the rate of Rs. 750/- per month commencing from 23.3.2003 and also to pay Rs. 2,500/- to the respondent towards litigation expenses. With the above modification in the impugned order, the Civil Revision Petition is disposed of. However, there shall be no order as to costs.
