Don’t file and RCR in haste and get hit with interim maintenance !!! Also disussion as to legal costs !!

NRI Husband who files RCR gets screwed with an interim maintenance order !! Though lower court rejects maintenance, HC orders hubby to pay Rs. 15,000 per month including arrears !!

Withdrawal of RCR petition not sufficient to thwart claim for maintenance and legal costs !!

No clue IF this husband shelled out the money or nothing else happened ??

 

============= order ============

Karnataka High Court

Navjot Kaur Alias Dolly vs Ajeet Singh Phull on 28 February, 2002

Equivalent citations: I (2003) DMC 275, ILR 2002 KAR 3145, 2002 (3) KarLJ 592

Author: Chandrashekaraiah
Bench: Chandrashekaraiah

ORDER

Chandrashekaraiah, J.

1. The petitioner in this petition has sought for quashing of the orders dated 12-3-2001 passed on I.A. III, and the order dated 19-8-2000 passed on the memo (Annexures-G and H respectively) in M.C. No. 307 of 2000, on the file of the I Additional Principal Judge, Family Court, Bangalore.

2. The facts of the case are as follows.-

The respondent had filed a petition for restitution of conjugal rights before the Family Court under Section 9 of the Hindu Marriage Act (for short ‘the Act’). In the said petition the petitioner who is the wife has filed an application for interim maintenance and litigation expenses under Section 24 of the Act. This application was contested by the respondent-husband by way of filing statement of objections. Before passing any order on the said application, the respondent had filed a memo for withdrawal of the main petition filed for restitution of conjugal rights. The Court passed orders rejecting the application for maintenance and litigation expenses and also permitted the respondent to withdraw the main petition by separate orders dated 12-3-2001. These orders have been challenged by the petitioner in this petition.

3. In the application I.A. III, the petitioner had claimed a sum of Rs. 30,000/- per month as maintenance and Rs. 40,000/-, towards litigation expenses. According to the petitioner, the respondent-husband has deserted her after demanding dowry and left for USA without intimating her. It is further stated that the husband is working as software engineer and earning $ 70,000/- per annum which is equivalent to Rs. 31,50,000/-. The further case of the petitioner is that she has no independent income to maintain herself and to meet the litigation expenses of the proceedings instituted by her husband. The said claim was objected by the respondent on various grounds. The Court below rejected the claim for maintenance on the ground that the petitioner-wife being an educated lady is capable of securing employment and therefore it is not for her to sit idle and expect her husband to pay maintenance during the pendency of the proceedings. Insofar as the litigation expenses is concerned, the reasons given by the learned Judge is that as she could get legal aid by approaching the Legal Aid Board, she is not entitled to ask for litigation expenses.

4. From a reading of the reasons given by the Court below, in order to reject the application filed under Section 24 of the Act, it is clear that the learned Judge has not understood the meaning and object of Section 24 of the Act.

5. Section 24 of the Act, reads as follows.-

| “24. Maintenance pendents life and expenses of
| proceedings.–Where in any proceedings 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 proceedings, 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”.

From the reading of the above section it is clear that the discretionary power is conferred on the Court to grant pendente lite maintenance either in favour of the wife or husband taking into consideration the income of both the wife and the husband. The life of the order that may be passed under Section 24 of the Act, is, no doubt, till the termination of the proceedings. Further, interim maintenance to be granted under Section 24 of the Act may be either from the date of service of notice on the main petition on the respondent or from the date of filing of the application for interim maintenance till the date of termination of the main proceedings. Therefore, any liability incurred by virtue of the order passed under Section 24 of the Act can be enforced, even after the termination of the final proceedings. If that is so, any request made by the petitioner to withdraw the main petition is to be considered after passing of the order on the application for interim maintenance.

6. Under Section 24 of the Act, if any of the spouse has no independent income sufficient for his or her support and the necessary expenses of the proceedings, the Court taking into consideration the income of either of the spouse pass an order either granting or refusing to grant maintenance. Admittedly, in the instant case the wife has no independent income of her own. Whereas, the husband is a software engineer earning about $ 70,000/- per annum in USA. If that is so, the reason given by the learned Judge that the wife is educated and she could get herself a job for her maintenance is an absurd reason for refusing the relief sought for by the wife. From the pleadings, it is found, the wife has only passed pre-university course and she is unemployed. In these days, it is very difficult to secure a job even if a person is highly qualified.

7. Taking into consideration that the husband is working as software engineer and earning about $ 70,000 per annum, I propose to determine what would be the amount that may be granted by way of maintenance. The normal rule is to grant 1/3rd of his or her income where there is no independent source of income for maintenance pendente lite and for litigation expenses. 1/3rd of Rs. 31,50,000/- comes to Rs. 10,50,000/- and if this sum is divided by 12 in order to determine the monthly maintenance, it comes to Rs. 87,500/-. Taking into consideration, the requirement and the need of the petitioner-wife to live in Bangalore City, I feel awarding a sum of Rs. 15,000/- as monthly maintenance would meet the ends of justice.

8. The petitioner has claimed litigation expenses of Rs. 40,000/- in her application. The reason given by the learned Judge to reject this prayer is that as she could approach the Legal Aid Board for legal aid, she is not entitled for any litigation expenses. Under the Act and the Rules prevailing in the State of Karnataka all persons are not entitled for legal aid as a matter of right. It is only the persons who satisfy certain conditions provided under the Act and the Rules are entitled for free legal aid. Further, even though free legal aid is available, if a person is not willing to avail the same for various reasons, no one can compel her or him to take free legal aid. The learned Judge having held that wife is educated lady and she could secure a job for her living, ought not to have directed the wife to approach the Legal Aid Board for legal aid. Further, even assuming that the wife is educated there is no reason to direct her to approach Legal Aid Board when she has no independent source of income. Therefore, the reason given by the learned Judge to reject the prayer for litigation expenses is not an acceptable reason. Therefore, taking into consideration the overall circumstances in the case I hold that the petitioner is entitled for Rs. 20,000/- towards litigation expenses.

9. The respondent-husband during the pendency of the proceedings before the Family Court filed a memo dated 19-8-2000 seeking for withdrawal of the main petition. The said memo is not even signed by the petitioner. It is not known whether the petitioner has instructed the Advocate who appeared for him before the Trial Court to file the said memo. Whenever a memo is filed it is not appropriate for the Court to permit the party to withdraw the proceedings unless it is satisfied that there are certain reasonable grounds for the party to withdraw the proceedings. In the case on hand, the husband had filed a petition for restitution of conjugal rights. The said petition was contested by the wife by filing objections along with an application for interim maintenance and for litigation expenses. After the filing of the application by the wife for interim maintenance the husband filed the memo to withdraw the main petition. In the normal course, in the original side, as per the civil rules of practice, the Court would insist an application along with an affidavit to grant any relief. In the instant case, no such application has been filed. Whereas, a memo was filed without even the signature of the husband, with a view to defeating the right of the wife to get interim maintenance. In the instant case during the pendency of the proceedings before the Family Court, the wife could have filed a petition either under Section 23-A of the Act on the grounds enumerated thereunder by way of a counter-claim or under Section 25 of the Act for permanent alimony and maintenance. This right to file counter-claim also has been defeated by allowing the husband to withdraw the main petition. From all these facts, I am of the view that there is no bona fides in filing the memo for withdrawal of the main petition by the husband and this aspect of the matter also has not been considered by the Court below. Therefore, the order passed by the Family Court on the memo for withdrawal of the main petition is liable to be quashed.

For the reasons stated above, I pass the following order: Writ petition is allowed.

(1) The orders passed by the I Additional Principal Judge, dated 12-3-2001, on I. A. III, and the order passed on the memo for withdrawal of the main petition in M.C. No. 307 of 2000 are quashed;

(2) The respondent-husband is directed to pay monthly maintenance of Rs. 15,000/- to the petitioner-wife from the date of application till the disposal of the main petition;

(3) The respondent-husband is directed to pay all arrears of maintenance to the wife within two months from today;

(4) The respondent-husband is directed to pay Rs. 20,000/-towards litigation expenses to the petitioner-wife.

(5) The matter is remitted to the I Additional Principal Judge, Family Court, Bangalore, to reconsider the matter afresh on the memo filed for withdrawal of the main petition after due notice to the parties.

Advertisements

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s