P. Soloman Sukumar vs Latha Madhuri on 4 August, 1997

    P. Soloman Sukumar vs Latha Madhuri on 4/8/1997

JUDGMENT

   M.N. Rao, J.

   1. Against the order passed by the Judge, Family Court, Hyderabad in
I.A.No.806 of l996 in O.P. No. 1323 of 1995, allowing the application of the
respondent-wife for interim maintenance, this Civil Revision Petition was filed.

   2. The Court below granted Rs. 1,000/- towards interim maintenance of the
respondent-wife, Rs. 500/- towards the interim maintenance to the minor child
and Rs. 600/- towards expenses for each day's hearing and Rs. 2,000/- towards
legal expenses in conducting the proceedings of the case. The wife resides in
Palakol in West Godavari District and the husband is a resident of Secunderabad
and both are Christians by religion.

   3. The learned Counsel for the petitioner-husband says that petitioner's
monthly income is only Rs. 5,000/- and under Section 36 of the Indian Divorce
Act, the alimony granted pendente lite should not be in excess of one fifth of
the husband's average net income for three preceding years and that there is no
provision in the Act for granting interim maintenance to the minor child.

   4. We are not inclined to agree. The monthly salary of the petitioner-
husband, according to the plea taken by the respondent-wife is Rs. 7,000/-. No
evidence was placed before the Court below to show that petitioner-husband's
income is only Rs. 5,000/- but not Rs. 7,000/-. Section 43 of the Indian Divorce
Act, inter alia, confers power on the Court to make interim orders with respect
to maintenance of "minor children, the marriage of whose parents is the subject-
matter of the suit......". We are of the view that this specific power conferred
by Section 43 of the Act is in addition to the power conferred on the Court by
Section 36 to grant alimony pendente lite. As the respondent-wife is residing in
Palakol, West Godavari District, she had to incur considerable expenditure to
attend the Court at Hyderabad and taking this factor into consideration, the
Family Court granted Rs. 600/- towards expenses for each adjournment. Having
regard to the specific provisions contained in Sections 36 and 43 of the Act and
there being no contra evidence to reject the plea of the wife that the monthly
income of the petitioner husband was Rs. 7.000/-, we affirm the order of the
Court below and consequently dismiss the revision petition. No costs.