In its order, the High Court noted that for consideration of the issue of quantum of maintenance during pendency of case, statement of income and affidavit of assets to be filed by the parties have to be considered.
This would take certain amount of time and few dates would be required to be fixed for the said purpose, the Court said.
Since the wife will also be required to incur legal expenditure for the said period including advocate’s fees, the decision with regard to awarding costs should not be deferred till the decision on the application for maintenance is pronounced.
“A wife when required to appear in Court has to engage an Advocate and pay some fees along with incidental costs for appearance in Court. Thus, when initial expenditure is incurred, wife should not be compelled to incur further expenditure in conducting her case, and should not be made to wait till application for maintenance pendente lite is decided,” the Court said.
It further emphasised that a wife who is compelled to come to court and answer the claim of her husband in a matrimonial suit has every right to claim litigation costs at the outset.
“The litigation costs should be awarded on the very first day of moving the application at the motion stage, and should not be deferred till decision on considering objections and affidavit of assets and evidence,” the judge held.
In the event upon considering the written objections and affidavit of assets and evidence, the Court comes to the conclusion that the income of the wife is exorbitant or she has several assets providing huge income or there exists a very exceptional circumstance for which litigation costs may not be granted, then the Court may modify vary or alter or recall the litigation costs granted on the very first date at the motion stage, the judge made it clear.
“Thus, granting litigation costs to wife when she is respondent in a matrimonial suit is the rule and rejection is exception. However the same principles may not apply with regard to litigation costs when wife has instituted the matrimonial suit and is the petitioner in the said suit,” the Court stated.
Further, it said that the trial court erred in making adjustment of the amount received by the respondent wife as maintenance from the litigation cost adjudicated by the court.
“The purpose of awarding maintenance is to protect the wife from starvation and to ensure that she lives decent life, and litigation costs are not taken into consideration while awarding maintenance. The litigation costs are awarded so that a wife against whom matrimonial suit is instituted can contest the same without hardship. While awarding maintenance, the factors namely food, clothing, shelter medical expenses are normally taken into consideration, and while awarding litigation costs, fees of the Advocate of the applicant and court fees are taken into consideration,” the High Court explained.
Source: Barandbench
