CASE ANALYSIS OF

KALABEN KALABHAI DESAI v. ALABHAI KARAMSHIBHAI DESAI

AIR 2000 Guj 232 (233): (2000) 4 Cur CC 41

By:-

AKANKSHA A REDDY*

5thYr., BA.LLB.

SCHOOL OF LAW, CHRIST DEEMED TO BE UNIVERSITY, BANGALORE

Email: akanksha.reddy@law.christuniversity.in

www.probono-india.in

December 24th, 2020

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ABSTRACT:
The following is a case analysis of Kalaben Kalabhai Desai v. Alabhai Karamshibhai Desai, AIR
2000 Guj 232 (233): (2000) 4 Cur CC 419. The case deals with maintenance and more
specifically with the grant of interim maintenance. Interim maintenance is a temporary (pendente
lite)in nature dealt with under Section 24 of the Hindu Marriage Act wherein the court grants
maintenance for a temporary period during the pendency of divorce or operation proceedings to
meet the immediate needs of petitioner, who can be either the wife or the husband and Section 26
of the Hindu Marriage Act deals with the custody of children and allows court to pass orders and
make provision which will be looking into best interest of minor children in regard to education
and maintenance.The case has been read, summarized, and analyzed.It was held that, the
guideline to be adhered to while dealing with the grant of interim maintenance is to award 1/3rd
of the total amount of income of husband to the wife monthly along with a reasonable sum being
awarded toward the maintenance of the minor child.

KEYWORDS:

Arrears of Maintenance, Interim Maintenance, Maintenance, Hindu Marriage, Pious Obligation

INTRODUCTION:
The case is a Civil Revn. Appln. No. 1266 of 1999
This case deals with the grant of interim maintenance.Interim maintenance is granted for
petitioner to meet immediate needs during the pendency of divorce or operation proceedings and
is also provided for benefit of minor child. Sections 24 and 26 deal with interim maintenance to
spouse and minor child respectively.

BRIEF FACTS OF THE CASE:

• The case is related to the aspect of the grant of interim maintenance which is a temporary
maintenance that the court can grant so that immediate needs of spouse and minor child
are taken care of during the pendency of a proceeding and this is dealt with in the Hindu
Marriage Act,1955 under sections 24 and 26.

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• A revision application under Section 115 of Code of Civil Procedure,1908 was brought
forth by the petitioner against the order by subordinate court which awarded the interim
maintenance to her at the rate of Rs. 600/- p.m. and at the rate of Rs. 400/- p.m. for the
minor son along with litigation expenses of Rs. 200/- while accepting that the income of
the respondent was between Rs.3000/- to Rs.5000/-p.m.
• The petitioner stated that the income of the respondent was between Rs.10,000/- to
Rs12,000/-p.m orally but did not produce any evidence and the respondent also did not
produce evidence of his income.
• The High Court stated that  where there exists a doubt, the benefit of doubt is always
going to be in the wife’s favor and so it took into consideration the range of Rs.3000/- to
Rs.5000/-p.m that was accepted as the salary of respondent by the lower court and stated
the maximum value of Rs.5000/-p.m has to be taken as being the respondent’s salary.
• Taking Rs.5000/- to be the salary of the respondent the High Court said that Rs.3000/- is
an appropriate and reasonable sum to be provided to mother and child monthly as interim
maintenance and reiterated that the normal rule is to provide 1/3rd of the salary of
husband as interim maintenance amount.
• The petitioner had also claimed the litigation expenses but it was held by the High Court
that due to the existence of free legal aid which she is entirely entitled to,the burden of
bearing the litigation expenses cannot be imposed on the husband.Instead, she should
approach the legal authorities and utilize her free legal aid.
• So, ultimately the application succeeded and the respondent was directed by the High
Court to pay monthly maintenance of Rs.3000/- along with arrears of maintenance of
Rs.3000/-p.m within a 2 month period from the data of receipt of writ of the order and did
not have to bear litigation expenses of the petitioner.

ISSUES OF THE CASE:        

1. The first issue was the amount of interim maintenance granted by the lower court.
2. The second issue was whether litigation expenses could be claimed by the Petitioner?
Hon’ble Judge S.K. Keshote deliberated upon these issues in the High Court of Gujarat.

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ARGUMENTS FROM THE SIDE OF THE PETITIONER:
The counsel for the petitioner stated that the trial court had erred and committed an illegality
since it awarded a meagre sum as maintenance to the petitioner and her minor child.They also
stated that since the respondent was a practicing advocate with a good practice he earned
anywhere between Rs.10,000/-p.m to Rs.12,000/-p.m and also had agricultural income coming in
on a regular basis.But, the Trial Court found the respondent’s income to be in the range of
Rs.3000/p.m. to Rs.5000/-p.m and even then the court has considered the lowest value in the
range and has awarded a meagre sum of maintenance.Since the respondent did not disclose his
income he being a lawyer must be aware that in that case, the income disclosed by the wife
should be accepted.The counsel also stated that the respondent should bear the litigation
expenses and that Rs.7000/- is a sum that is fit to cover it and which should have reasonably
been awarded.

ARGUMENTS FROM THE SIDE OF THE RESPONDENT:

The counsel for the respondent firmly resisted the revision application and submitted that the
maintenance which had been awarded by the trial court was already on the higher side and that
with regard to the claim related to litigation expenses, has emphasised that free legal aid is
available and that the petitioner is entitled to it.

LEGAL ASPECTS:
This case deals with Sections 24 and 26 of the Hindu Marriage Act,1955

SECTION 24 OF THE HINDU MARRIAGE ACT,1955

Section 24 of the Hindu Marriage Act,1955 deals with interim maintenance or maintenance
pendente lite which means that either spouse may claim for maintenance during the pendency of
separation or divorce proceedings under the Hindu Marriage Act,1955 to meet their immediate
needs.

SECTION 26 OF THE HINDU MARRIAGE ACT,1955

Section 26 of the Hindu Marriage Act,1955 deals with the custody of children and states that,
“Court may, from time to time, pass such interim orders and make such provisions in the decree

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as it may deem just and proper with respect to the custody, maintenance and education of minor
children, consistently with their wishes, wherever possible, and may, after the decree, upon
application by petition for the purpose, make from time to time, all such orders and provisions
with respect to the custody, maintenance and education of such children as might have been
made by such decree or interim orders in case the proceeding for obtaining such decree were still
pending, and the court may also from time to time revoke, suspend or vary any such orders and
provisions previously made provided that, the application with respect to the maintenance and
education of the minor children, pending the proceeding for obtaining such decree, shall, as far
as possible, be disposed of within sixty days from the date of service of notice on the
respondent.”

VIEWS OF THE COURT:

1.Hon’ble S.K. Keshote noted that the subordinate courts look at wife and minor children while
granting maintenance under the Sections 24 and 26 of Hindu Marriage Act,1955 as though they
are “a class of chattel or like they are doing a charitable contribution toward them by granting
maintenance”.
2.Section 24 of the Hindu Marriage Act,1955 was brought forth as a  socio-economic legislation
and its fundamental principle is to provide a reasonable sum as  interim maintenance to a wife
who cannot maintain herself and is living apart from her husband during the pendency of the
matrimonial dispute.The same principle applies to minor children as seen in Section 26 of Hindu
Marriage Act,1955.
3. It is a husband’s legal duty and pious obligation to look after the welfare of his wife and of the
father to ensure welfare of children especially minor children.
4.The Trial Court has not considered that the cost of living is much higher and a meagre amount
will be insufficient as hence, a reasonable sum must be allocated as maintenance to wife and
minor child.
5.When any doubt exists the benefit of doubt has to go in favour of the wife and the higher range
of the income of respondent was accepted by the lower court was taken.So,Rs.3000/-p.m to
Rs.5000/-p.m was accepted by lower court and the High Court considered the highest value of
Rs.5000/-p.m and 1/3rd of this amount is to be awarded to wife and a reasonable sum for child.

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6.It was held that Rs.3000/-p.m. as maintenance should be paid as interim maintenance and all
arrears from date of filing the application by the petitioner needs to be paid up within 2 months.
7.No merits with regard to claim of litigation expenses from the petitioner was found and so,it
was reiterated that free legal aid was available and the petitioner should have approached the
related authorities.So, the respondent was not directed to pay litigation expenses of the petitioner.

OVERVIEW OF THE JUDGEMENT:

The High Court revised the order passed by the Trial Court and directed the respondent to pay
interim maintenance along with arrears of maintenance at the rate of Rs.3000/-p.m.The arrears
need to be paid up within 2 months from the date of receiving writ of order from High Court.The
High Court also found that no merit existed in claim of litigation expenses by the petitioner since
free legal aid could have been availed and so, no burden of bearing costs of litigation expenses
was directed at Respondent.The High Court ensured that the socio-economic principles which
are the basis of the Sections 24 and 26 was guaranteed to the petitioner and absolutely met the
ends of justice by utilising the highest value of the income range that was adduced by the lower
court and granting a reasonable and appropriate sum of Rs.3000/-p.m instead of the lower court
which granted a meagre Rs.900/-p.m(Rs.600/-p.m for wife and Rs.400/-p.m for the child)as
interim maintenance.The court was also extremely fair in not directing the respondent to pay
the litigation costs, it exercised rationale and in a well reasoned way stated that there is access to
free legal aid services provided by the authorities which she could have utilised if she could not
afford to pay for her advocate but instead she chose to carry out proceedings hoping she would
be compensated for it.This case has been cited in 2 cases of High Courts since it was decided.

CONCLUSION:
All in all,The High Court exercised utmost reason and rationale and brought forth an order which
was fair and equitable while keeping in mind the ends of socio-economic justice that is the
underlying principle of Sections 24 and 26 of the Hindu Marriage Act,1955 which is an excellent
precedent to set in matters dealing with interim maintenance. It ensured welfare of women who
are wives and mothers along with that of minor children by reiterating that a meger amount being
granted as interim maintenance is unacceptable and by emphasizing on the rule of 1/3rd of the
monthly income for wife’s maintenance along with a reasonable amount for the child’s

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maintenance it has provide socio-economic justice and not only met the purpose with which
Sections 24 and 26 of Hindu Marriage Act,1955 were laid but has also set a strong precedent
which is well reasoned and fair while also bringing awareness to the availability of free legal aid.

SUGGESTIONS:
The grant of interim maintenance is social-benefit, social-justice legislation which is not in
favour of any particular gender and can be availed by either wife or husband who is in immediate
need during pendency of proceedings.

REFERENCES:
1.Diva Rai, ‘Concept of Maintenance in Hindu Marriage Act, 1955’(iPleaders,13 June 2019)
<https://blog.ipleaders.in/concept-of-maintenance-in-hindu-marriage-act-1955/>accessed on 23
December 2020.
2.  ‘Maintenance Pendente Lite and Expenses of Proceedings’(Legal Services
India <http://www.legalservicesindia.com/divorce/maintenance-expenses-
proceedings.htm>accessed on 23 December 2020.

BRIEF ABOUT THE AUTHOR:

Akanksha A Reddy is currently in her 5th year and is pursuing BA.LLB(Hons.) at School of
Law,Christ Deemed to be University,Bangalore.She is interested in the areas of corporate law,
international law and social welfare law.