Alice Baldev Singh vs Baldev Singh on 19 September, 2001

    Alice Baldev Singh vs Baldev Singh on 19/9/2001

JUDGMENT

   Mahmood Ali Khan, J.

   1. This revision petition is directed against an order of an Additional
District Judge dated 29.7.2000 by which an application filed by the petitioner
wife for enhancement of the pendente lite alimony was dismissed.

   2. Briefly the facts are that the respondent husband had filed a suit against
the petitioner under Section 22 of the Indian Divorce Act for grant of a decree
of judicial separation. It is pending. On the application of the petitioner the
court fixed on 27.3.1999 her pendente lite alimony at Rs. 500/- per month.
Thereafter on 23.5.2000 she submitted an application for enhancement of her
pendente lite alimony on the ground that alimony fixed at Rs. 500/- per month is
very low as compared to the monthly salary of Rs. 12,000/- which the respondent
is getting. Besides she has to pay electricity bill of Rs. 15000/-, water bill
for Rs. 2100/- and incur Rs. 1000/- on maintenance of flat payable to the
locality management. She has also to meet house tax liability. She was keeping
ill and has no other source of income. The allegation of the respondent that she
has rented out the flat has been found false by the Local Commissioner who was
appointed by the trial court. She has requested that her maintenance allowance
be increased from Rs. 500/- per month to Rs. 5000/- per month.

   3. Notice of the petition was sent to the respondent who failed to contest
it.

   4. The relevant provision which applies to the grant of pendente lite alimony
to the wife in a petition filed under Indian Divorce Act is Section 36 which is
reproduced as under:

     "36. Alimony pendente lite - In any suit under this Act, whether it be
instituted by a husband or a wife, and whether or not she has obtained an order
of protection the wife may present a petition for alimony pending the suit.

     Such petition shall be served on the husband; and the Court, on being
satisfied of the truth of the statements therein contained, may make such order
on the husband for payment to the wife of alimony pending the suit as it may
deem just:

     Provided that alimony pending the suit shall in no case exceed one-fifth of
the husband's average net income for the three years next preceding the date of
the order, and shall continue, in case of a decree for dissolution or marriage
or of nullity of marriage, until the decree is made absolute or is confirmed, as
the case may be.

   5. This section postulates: (1) the matrimonial suits is filed by the husband
or wife under the provisions of Indian Divorce Act for (a) nullity of marriage,
(b) dissolution of marriage, (c) judicial separation; and (d) restitution of
conjugal rights of marriage, and it is pending; (2) the application for grant of
alimony during the pendency of the matrimonial suit may be filed by the wife
irrespective of fact whether she had obtained an order of protection or not; (3)
the notice of the application has to be served on the husband and opportunity of
hearing provided to him; (4) the court must be satisfied of the truth of the
statement contained in the application for alimony; (5) the court may fix
interim alimony of the wife at such amount as it may deem just and may direct
the husband to make the payment to the wife; (6) the alimony pending the
matrimonial suit will in no case exceed 1/5th of the husband's average net
income for three years next preceding the date of the order; and lastly the
order of payment of interim alimony shall continue in operation in case of a
decree of dissolution of marriage or nullity of the marriage until the decree is
made absolute or confirmed. In the case of a decree for judicial separation it
will remain in operation during the pendency of the suit while in the case of
suit for restitution of conjugal rights the alimony may be granted up to the
time appointed by the Court for compliance with the decree.

   6. Salient features of the provisions of Section 36 which distinguishes it
with similar provision in the matrimonial statute, in particular Hindu Marriage
Act with which the courts have frequent encounter are (i) only wife can ask for
alimony pending the litigation; (ii) the alimony is fixed at a sum which courts
deems just keeping in view of the income of wife and husband and the standard of
living of the wife to which she is accustomed; (iii) the husband's income that
is taken into account is the average net income for three years preceding the
date of the order of alimony; (iv) the maximum amount which can be granted as
alimony pendente lite is one-fifth of the husband's income as calculated above;
(v) maintenance of child of the parties cannot granted under this provision and,
(vi) expenses of the proceedings cannot be claimed by the wife under this
provision.

   7. Needless to mention that pendente lite alimony fixed in a suit may be
varied, enhanced, reduced or even suspended during the pendency of the suit or
during the period when such order remains in operation, depending upon the
change in the factors which are counted for determination of pendente lite
alimony. Of course each variation in the income of the husband and wife will not
necessitate change in the amount of alimony but if where is significant or
substantial change in the facts and circumstances which are reckoned for fixing
the rate of alimony change in the rate of interim alimony may become necessary.

   8. Though in modern times the limit of one-fifth of husband's average net
income with mathematical precision on the wife's pendente lite alimony is
difficult to appreciate but so long as this incongruity is not corrected by a
legislative action the courts have to fix the rate not more than the maximum
amount allowed under Section 36. While calculating the average net income of the
husband care should be taken that the husband does not artificially reduce his
monthly income by increasing voluntary deductions/expenses so as to deprive the
wife of her due share in the income as alimony. Ordinarily a husband cannot be
allowed to reduce his income by contributing to the provident fund much above
the rate required under rules, taking out life insurance of an inordinately high
amount which required payment of high premium, payment of Installments of loan
and advances taken from the employer or others or incurring other liabilities
which the court considers not bonafide.

   9. Reverting to the facts of this case it is note-worthy that the petitioner
wife had disputed the allegation of husband that she has rental income from her
flat in which she is admittedly residing. The Local Commissioner appointed by
the trial court had found presence of a few person in the flat but did not
report about her earning anything and enquiry made by him from neighbourers did
not reveal sub-letting or paying guest accommodation being provided by the wife.
All the neighbourers told the Local Commissioner that the petitioner is living
in the house alone. There is no material for the trial court to have reached the
conclusion that she had income from the house. The house is in the name of the
respondent and she must necessarily by paying house tax to the municipal
authorities and incurring expenditure on its up-keep. So, the learned trial
court erred in holding that the respondent had income from house or had such
income which is available for her maintenance.

   10. At the time of fixation of pendente lite alimony the respondent's salary
was Rs. 7018/- per month and after allowing some deductions the trial court had
assessed it to be Rs. 5500/- per month. Conversely, the petitioner alleged that
at present the respondent pay and allowances are Rs. 12,000/- per month. The
Court directed Central Road Research Institute where the respondent worked as
Electrician to file his salary details from January 2001 onwards and in reply
the pay slips from January 2001 to August 2001 have been filed. The pay and
allowances and the deductions made from his salary are tabulated below:

January 2001 August 2001

Pay 5125 5250

DA 2204 2258

HRA 1538 1575

CCA 200 200

CA 100 100

Total 9167 9383

DEDUCTIONS

RGIS 30 30

Festival Advance 150 150

GPF 1500 1500

CGHS 166 166

Coop Society 940 1100

W/Fund 6 6

B/Fund 3 3

CSIR R/Fund 5 5

2840 3000

Net payable 6327 6383

   11. The increase in the emoluments of the respondent since the time of
fixation of pendente lite alimony is by no means marginal. It is a hefty sum of
Rs. 2365/- which will certainly require an upward revision of the interim
alimony of the wife. In addition it cannot be stated that she had now income of
Rs. 1000/- per month from house any more.

   12. The pendente lite alimony of wife is to be fixed on average net income of
the husband during the period of three years next preceding the date of order.
The other words the average net income is to be calculated taking into account
the emoluments of respondent from August 1998 to date. It is stated that the
last pay revision of the respondent was in pursuance to the IV Pay Commission
Report w.e.f. 1.1.1996. Thereafter the increase in the Pay and allowance is only
on account of annual increment and the six monthly DA increase. For assessing
the net average income some guess work, assumption and presumption may be
necessary at times. At this stage we need not cal the entire record of the past
three years from the respondent's employer. It can be worked out on the basis of
the present record as it is not stated that the respondent got promotion to a
higher post during this period. On 27.3.1999 when the interim alimony was fixed
by the trial court gross salary of the respondent was Rs. 7018/- pere month at
present it is Rs. 9383/- per month, an increase of Rs. 2257/- per month and
average of Rs. 1128.50 per month as the increase seem to be steady on account of
annual increment and additional DA, HRA and CCA over the year. Keeping in view
that income to be taken into account is from August 1998 it can be safely held
that average net gross income of the respondent during the period of 3 years
next to the date of order is Rs. 8,100/- approximately per month.

   13. The respondent is getting a sum of Rs. 2840/- to Rs. 3000/- deducted per
month from his salary. All deduction, which are being made, are not compulsory.
Most of them are voluntary in nature. The respondent cannot be allowed to reduce
his salary income artificially by making more contribution than required by
rules. The deduction on account of festival advance, more than 9% of his pay in
GPF, GPF advance, contribution to Co-operative Society, therefore, cannot be
allowed. He cannot be allowed an amount of more than Rs. 600/- per month as
compulsory deductions. As such the average monthly net income of the respondent
is Rs. 7500/- per month.

   14. The maximum alimony pendente lite allowed under Section 36 of the Act is
one-fifth of average income of Rs. 7500/- i.e. Rs. 1500/- per month. Keeping in
view the present day cost of living the amount of Rs. 1500/- per month may be
grossly inadequate for the maintenance of the wife judged from the cost of
living of present day but it is the maximum which she can be allowed in terms of
Section 36.

   15. The trial court failed to exercise jurisdiction vested in it by refusing
to enhance interim alimony on the application of the petitioner. The order is
not sustainable. It is accordingly set aside. The application for enhancement of
interim alimony is dated 23.5.2000. The pendente lite alimony of the petitioner
is accordingly fixed at Rs. 1500/- per month with effect from 1.6.2000. The
Central Road Research Institute is directed to deduct a sum of Rs. 1500/- per
month from the salary of the respondent and remit it by a cheque drawn in the
name of petitioner to the Additional District Judge, Delhi before whom the case
is pending till the case is disposed off by the court. The arrears may be
deducted from the salary of the respondent in Installment to be remitted with
monthly alimony of the current period. The petitioner, however, shall bear her
own costs.