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.