When the husband has voluntarily incapacitated himself from earning, he cannot avoid his liability to maintain his wife and child
The subject matter of present dispute was claim under Section 24 of the Hindu Marriage Act for maintenance pendente lite and expenses of proceedings. The application though was allowed by trial Court, the order was challenged on the ground that trial Court failed to take into consideration the settled law determining the manner in which pendente lite maintenance and litigation expenses should be awarded under Section 24 of the Hindu Marriage Act. The question that arose was merely because the husband has to look after his son from previous marriage, the maintenance can be denied to the wife and her minor son.
The Court observed that Section 24 of the Act is to secure the indigent spouse some financial assistance to prosecute the case and also for the purpose that indigent spouse should not suffer during the pendency of the proceedings because of his or her indigency. To determine the maintenance under Section 24 of the Hindu Marriage Act what is to be seen is the position and status of the parties; Reasonable wants of the claimant (towards food, clothing, shelter, medical attendance and treatment, education and the like); Income of the claimant; Income of the opposite party; Number of persons opposite party is obliged to maintain.
To determine income of a party only involuntary deduction like income-tax, provident fund contribution, etc., are to be excluded. Under law, the opposite party though may not be obliged to maintain brother or sister but if that brother or sister has no income and is living with the opposite party as member of his family and where either there are no parents or are unable to maintain themselves, the Court may in a given circumstance consider the expenses to be incurred on the maintenance or brother or sister by the opposite party. Section 24 cannot be read in isolation and cannot be given restricted meaning to hold that it is the maintenance of the wife alone and no one else.
When the husband has voluntarily incapacitated himself from earning, he cannot avoid his liability to maintain his wife and child. Where wife comes forward with categorical statement that she is not working anywhere and earning, the burden of proof is on husband to prove place of her working and earning. While granting permanent alimony under Section 25, the status of the parties, their respective social needs, financial capacity of husband and other obligations have to be taken into consideration. It is the duty of the Court to see that the wife lives with dignity and comfort and not in penury. The living need not be luxurious but simultaneously she should not be left to live in discomfort. The Court has to act with pragmatic sensibility to such an issue so that the wife does not meet any kind of man-made misfortune.
[Sanjiv Dayal Mathur vs. Vandana Mathur]
(Himachal Pradesh HC, 09.05.2014)