SC HC Maintanance judgements in India

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Maitenance under HMA24 cannot be denied on the ground that wife is below 18 years January 30, 2012Fighting Legal Terror Leave a comment

Kolkata High Court (Appellete Side)3349/2010 on 24 January, 2012Author: Dipankar Dutta124.01.2012

kc. 243 C.O.3349 of 2010 Mr. Sanat Chowdhuri …for the petitioner. The impugned order allows an application under Section 24 of the Hindu Marriage Act filed by the wife/opposite party. The learned Additional District Judge directed the husband/petitioner to pay Rs.1,800/- per month with effect from January, 2010 on account of alimony pendente lite and Rs.3,000/- towards litigation cost. The only point that has been raised by Mr. Chowdhuri, learned advocate for the husband/petitioner is that the application under Section 24 of the Act filed by the wife/opposite party was not maintainable since on the date the same was presented, she was below the age of 18 years. Not only that, the date on which marriage between the parties was solemnized, the wife/opposite party had not attained the age of 18 years and, therefore, the marriage contravened provisions of Section 5(iii) of the Act. The learned Additional District Judge was of the view, on consideration of the provisions contained in Sections 5, 11, 12 and 18 of the Act, that the marriage between the parties was neither voidable nor void and that a marriage solemnized in contravention of Section 5(iii) is punishable under Section 18 of the Act and, therefore, she was entitled 2

to lay a claim for alimony pendente lite claiming to be the wife of the husband/petitioner.

I am of the view that the learned Judge was right in his approach and in granting alimony pendente lite and litigation costs to the wife/opposite party did not transgress the bounds of his authority.

There is no reason to interfere. The revisional application stands dismissed.

Urgent photostat certified copy of this order, if applied for, be supplied to the parties as early as possible. (DIPANKAR DATTA,J.)

Categories:Judgement

HC: Wife in allegded adultry but awarded 1500 maintenance August 19, 2011Fighting Legal Terror Leave a comment

Niranjan Kumar Sinha vs Reena Devi on 17 August, 2011IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.13091 of 2011 Niranjan Kumar Sinha

Versus

Reena Devi

———————————-

03. 17.08.2011. At the very outset, the learned counsel for the petitioner seeks permission to make necessary correction in the provision of law. Permission is accorded.

Heard, the learned counsel for the petitioner. This application under Article 227 of the Constitution of India has been filed against the order dated 20.12.2010 as contained in Annexure ’3′ passed by Principal Judge, Family Court, Begusarai in Divorce case No.46 of 2007 whereby the learned Court below allowed the application under Section 24 of the Hindu Marriage Act, 1955 and directed this petitioner to pay Rs.1500/- per month as maintenance to the respondent, Reena Devi.

The learned counsel for the petitioner submitted that the respondent Reena Devi had lodged F.I.R. against the petitioner under Section 498 (A) and during investigation, the police found that in fact because of adultery, there is dispute between the parties and the respondent has filed this criminal case under Section 498 (A) of I.P.C. and on the basis of that finding, final form has been submitted. However, the learned Court below considering the statement of the -2-

respondent took cognizance under Section 498 (A) of I.P.C.

According to the learned counsel, in such view of the matter, the petitioner has got good prima facie case as the divorce case has been filed on the ground of adultery. Secondly, the learned counsel submitted that the petitioner is not regular employee. Although, he is an Advocate, he is not a regular practitioner and he does freelance work of Rashtriya Sahara newspaper and he has got no sufficient income to pay Rs.1500/- per month to the respondent.

From perusal of the impugned order, it appears that the learned Court below has considered all these aspects of the matter. The learned Court below also found that the person against whom adultery is alleged has died in the year 2007 itself and this divorce case has been filed in the year 2007. The learned Court below also considered the fact that the petitioner is an Advocate and according to the learned Court below even now a skill labour can get Rs.4000/- per month. Considering all these aspects of the matter, the learned Court below granted Rs.1500/- as maintenance to the respondent per month. So far the finding of the police regarding adultery is concerned, it is not binding on the Civil Court. This is a proceeding under the Hindu Marriage Act and so far adultery is concerned, the petitioner has to prove the same in this case. -3-

In view of the above facts and circumstances of the case, in my opinion, it is not a case that the Court below exercised a jurisdiction not vested in it by law and that any illegality has been committed. Accordingly, I find no merit in this application and it is dismissed.

Sanjeev/- (Mungeshwar Sahoo,J.)

http://indiankanoon.org/doc/143752/


Gujrat HC: Husband can buy a car so can afford 17500 per month also !!! August 6, 2011Fighting Legal Terror Leave a comment

Dharmeshbhai vs Hetal on 1 August, 2011Author: Mr.S.J.Mukhopadhaya, Mr.Justice J.B.Pardiwala,Gujarat High Court Case Information System

Print

LPA/1263/2010 17/ 17 JUDGMENT

IN

THE HIGH COURT OF GUJARAT AT AHMEDABAD

LETTERS

PATENT APPEAL No. 1263 of 2010

In

SPECIAL

CIVIL APPLICATION No. 3054 of 2010

With

CIVIL

APPLICATION No. 5962 of 2010

In

LETTERS PATENT APPEAL No. 1263 of 2010

For

Approval and Signature:

HONOURABLE

THE CHIEF JUSTICE MR. S.J. MUKHOPADHAYA HONOURABLE

MR.JUSTICE J.B.PARDIWALA

=========================================================

1

Whether

Reporters of Local Papers may be allowed to see the judgment ?

2

To be

referred to the Reporter or not ?

3

Whether

their Lordships wish to see the fair copy of the judgment ?

4

Whether

this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ?

5

Whether

it is to be circulated to the civil judge ?

=========================================================

DHARMESHBHAI

DOLATRAI DESAI – Appellant(s)

Versus

HETAL

@ DOLI DHARMESHBHAI DESAI W/O DHARMESH DOLATBHAI DESAI & 1 – Respondent(s)

========================================================= Appearance

:

MR

APURVA A DAVE for

Appellant(s) : 1,

MR DAKSHESH MEHTA for Respondent(s) : 1 -

2.

=========================================================

CORAM

:

HONOURABLE

THE CHIEF JUSTICE MR. S.J. MUKHOPADHAYA

and

HONOURABLE

MR.JUSTICE J.B.PARDIWALA

Date

: 01/08/2011

CAV

JUDGMENT

(Per

: HONOURABLE MR.JUSTICE J.B.PARDIWALA)

1. In

this appeal, the appellant herein, original respondent(husband), seeks to challenge judgment and order dated 04.05.2010 passed by the learned Single Judge in Special Civil Application No.3054 of 2010 whereby, the learned Single Judge passed an interim order in a petition preferred by the respondent herein (wife) enhancing the amount of maintenance from Rs.3000/- to Rs.7500/- and awarding an amount of Rs.10,000/- towards maintenance for the daughter.

2. Facts

relevant for the purpose of deciding this appeal can be summarized as under:-

2.1.

The appellant herein and respondent No.1 are husband and wife. Respondent No.2 is the minor daughter of the appellant and respondent No.1. Appellant got married with respondent No.1 on 16.05.1993 and out of the wedlock, respondent No.2 was born on 24.06.1994. It appears that due to some maladjustment in the marital life of appellant and respondent No.1, respondent-wife was constrained to leave her matrimonial home along with her minor daughter and started residing at her parental home. Appellant herein is a businessman engaged in the business of home appliances in the name of Dharam Distributors and is

carrying on his business in two shops in the city of Surat.

2.2. Record reveals that

respondent-wife had preferred H.M.P. Suit No.54 of 2009 for a decree of divorce in the Court of learned Principal Senior Civil Judge, Navsari under the provisions of Section 13(1) of the Hindu Marriage Act. In the said suit, wife preferred an application Exh.5 for interim maintenance of Rs.10,000/- each i.e. for herself and for the maintenance of her minor daughter under Section 24 of the Hindu Marriage Act, 1955.

2.3. It appears that learned Principal Senior Civil Judge, Navsari, partly allowed the application Exh.5 vide order dated 16.02.2010 wherein an amount of Rs.3000/- per month was awarded in favour of the wife towards her maintenance whereas no maintenance was fixed for the minor daughter.

2.4. Aggrieved by the said order passed by the learned Principal Senior Civil Judge, Navsari, wife preferred Special Civil Application No.3054 of 2010. The learned Single Judge took notice of the fact that not a single penny towards maintenance has been awarded for the well-being and welfare of the daughter i.e. respondent No.2. The learned Single Judge also took notice of the fact that the daughter at present, is studying in Standard-XII. The learned Single Judge also took into consideration the fact that a very meager amount of Rs.3000/- has been awarded towards maintenance of the wife and, therefore, under these circumstances, thought fit to pass the following order:-

“5.0 Taking into

consideration the fact that the daughter is in standard XII, she will be required to pursue her studies with the help of extra expenses of tuition fees etc. This Court is of the opinion that by an interim order, the respondent is required to be directed to pay the maintenance to the daughter also.

5.1 The

amount awarded by the Court below of Rs.3,000/- as maintenance to the mother is increased to Rs.7,500/- (Rupees Seven thousand five hundred) and an amount of Rs.10,000/- (Rupees Ten thousand) for the daughter is directed to be paid by the respondent on or before 7th of every month including the month of May 2010. The question of issuance of direction to pay maintenance from the date of application is kept open.”

2.5. Aggrieved by the

said interim order passed by the learned Single Judge, the husband is before us in this appeal.

3. Taking into

consideration the fact that this being a case of matrimonial dispute between the husband and wife and also taking into consideration the fact that the appellant and respondent No.1 have a daughter aged about 17 as on today, studying in standard XII, we thought fit to hear the parties in person for the purpose of exploring the possibility of some amicable solution or settlement. On 24.06.2011, we passed an order directing the appellant and respondent No.1 to remain present in the Court along with their child-Dhruvi (respondent No.2) on the next date. On 29.06.2011, we took up the proceedings in camera and discussed the matter separately to find out the ways and means to settle the matter amicably.

4. On 04.07.2011, when

the matter was once again taken up for hearing in camera, a statement was made on behalf of appellant that he intends to settle the dispute on payment of lumpsum amount of Rs.8 lacs as full and final settlement. We also inquired from the respondent No.1-wife, about the proposal put forward by the appellant-husband and respondent No.1 willingly agreed to accept the lumpsum amount of Rs.8 lacs. We, therefore, passed the following order on 04.07.2011:-

“When the matter

was taken up, Dharmeshbhai Dolatrai Desai (husband) and Hetalben @ Doli Dharmeshbhai Desai (wife) appeared in person along with their daughter Dhruvi Dharmeshbhai Desai, aged 17 years. Due to persuasion of their well-wishers, friends, etc., they intend to settle the dispute by converting the `petition for divorce’ as a `petition for divorce by mutual consent’ under Sec.13-B of the Hindu Marriage Act, 1955 on the following terms and conditions:

(i) The allegations made

by the parties in their respective petition for divorce and written statement or any reply made therein or by way of additional affidavit shall be withdrawn.

(ii) Any other

litigation filed between Dharmeshbhai Dolatrai Desai (husband) and Hetalben @ Doli Dharmeshbhai Desai (wife), including criminal case, etc, shall be withdrawn.

(iii) Dharmeshbhai

Dolatrai Desai (husband) has agreed to pay a lump-sum of Rs.8,00,000/- (Rupees Eight Lacs only) as full and final settlement by two separate Demand Drafts, one in favour of Dhruvi Dharmeshbhai Desai (daughter) for Rs.4,00,000/- (Rupees Four Lacs only) and another Demand Draft in favour of Hetalben @ Doli Dharmeshbhai Desai (wife) for Rs.4,00,000/- (Rupees Four Lacs only).

(iv) Hetalben @ Doli

Dharmeshbhai Desai (wife) will not claim any maintenance in future.

(v) The amount paid to

the Dhruvi Dharmeshbhai Desai (daughter) would be utilized for the purpose of her marriage.

(vi) This agreement will

not stand in the way of Dhruvi Dharmeshbhai Desai (daughter) so far as her rights, inheritance, etc. are concerned.

Dharmeshbhai Dolatrai

Desai (husband) stated that he can pay a sum of Rs.4,00,000/- (Rupees Four Lacs only) in favour of Dhruvi Dharmeshbhai Desai (daughter) by 11.08.2011. According to Hetalben @ Doli Dharmeshbhai Desai (wife) the amount of her maintenance should be paid on or before 11.09.2011, but Dharmeshbhai Dolatrai Desai (husband) asked for some more time, i.e. approximately six months. In such case, her claim for monthly maintenance be paid till the sum of Rs.4,00,000/- (Rupees Four Lacs only) is paid.

We are of the view that

the matter should be sorted out by the parties by the next date. We may only mention that till the amount is not paid, the petition for divorce cannot be disposed of and the petition for divorce will remain pending. Dharmeshbhai Dolatrai Desai (husband) will be liable to pay the monthly maintenance as ordered by this Court. Post the matter on 11.07.2011 at 02.30 p.m. in Chamber.”

5. On

18.07.2011, when the matter was once again taken up for hearing, learned counsel Ms.Kruti M. Shah, appearing for the appellant, submitted that she wants to withdraw herself from the case as the appellant wants to resile from the assurance he had given before the Court for payment of Rs.8 lacs towards full and final settlement for the maintenance of his wife and daughter. The appellant-husband was present in-person and submitted that he is not in a position to pay total amount of Rs.8 lacs.

6. Under such

circumstances, we had recorded that parties have not been able to reach to an amicable settlement and, therefore, we will now proceed to hear the case on merits. As learned advocate Ms.Kruti Shah retired from the matter, we also gave an opportunity to appellant-husband to engage some other lawyer.

7. On 25.07.2011, the

matter was once again taken up for hearing.

8. Today, learned

advocate Mr.Apurva A. Dave, appeared for the appellant-husband. He submitted that the husband has a very small business and his financial condition is also not sound. He also submitted that it is not possible for the husband to pay monthly maintenance to the tune of Rs.17,500/-. He submitted that the order passed by the learned Principal Senior Civil Judge, Navsari below Exh.5 in H.M.P. Suit No.54 of 2009 is just and proper and without any justifiable reasons, the learned Single Judge has disturbed the said order and has enhanced the amount of maintenance from Rs.3000/- to Rs.7500/- and additionally has also awarded sum of Rs.10,000/- towards the maintenance of minor daughter. He further submitted that the learned Principal Senior Civil Judge, Navsari rightly did not pass an order granting maintenance for the minor daughter as there was no application made under Section 26 of the Hindu Marriage Act for maintenance of the minor child. He would submit that this aspect has been completely overlooked by the learned Single Judge.

9. Per contra, learned

advocate Mr.Dakshesh Mehta, appearing for the wife, submitted that the interim order passed by the learned Single Judge dated 04.05.2010 is just and proper and does not deserve any interference by this Court in the present appeal. He would submit that the appellant-husband wants to shirk away from his legal as well as moral responsibility of maintaining his wife and minor daughter. He would submit that the respondent-wife preferred an application though purporting to be under Section 24 of the Act containing an independent prayer for the maintenance of the minor daughter which clearly means that the power of the Court under Section 26 of the Act for granting interim maintenance for the minor daughter was also invoked in the application. He further submitted that the appellant has a lucrative business of home appliances and is having two big shops in the city of Surat. He also submitted that he has made huge investment in various assets and fixed deposits. He submitted that on the other hand respondent-wife has no means of income as both the parents, who were serving, have now retired. He further submitted that the income tax returns produced before the Court below are evident of the fact that the gross profit for the financial year ended to

31.03.2008 was Rs.4,36,378/-. He would submit that while calculating the maintenance, gross income should be considered.

10. Having

heard the learned advocates appearing for the respective parties and also having perused the record, we are of the view that the learned Single Judge has rightly enhanced the amount of interim maintenance from Rs.3000/- to Rs.7500/- in favour of the wife and in our opinion, has rightly awarded an amount of Rs.10,000/- for the minor daughter. It is very clear on perusal of application Exh.5 i.e. the application preferred under Section 24 of the Hindu Marriage Act was a joint application preferred by the respondent No.1-wife and respondent No.2-daughter. In the said application, it has been prayed that the Court may pass an order directing the husband to pay a sum of Rs.10,000/- each to wife and the daughter towards maintenance pending the final disposal of the Hindu Marriage Petition No.54 of 2009. The contention that in the application preferred by the respondent-wife jointly with minor daughter the Court has no powers to pass an order granting maintenance for the minor child, cannot be accepted for the same reason that under Section 26 of the Hindu Marriage Act, the Court is empowered from time to time to pass interim orders, inter alia, for maintenance and education of the minor children. Section 26 does not even require any application being made for such purposes and the Court itself can make interim orders for maintenance of the minor children under the said Act. Therefore, even if there was no application made under Section 26 of the Act for maintenance of the minor daughter, the Court could have validly awarded the maintenance for the minor daughter. The application preferred by the respondent-wife, though purporting to be under Section 24 of the Act, contained prayer for the maintenance of the minor daughter which clearly means that the power of the Court under Section 26 of the Act for granting interim maintenance for the minor daughter was also invoked in the application.

11. Mere non-mentioning

of the provision of Section 26 would make no difference. Apart from this, as observed above, even without any application under Section 26 of the Act, a Court is empowered to make suitable interim orders regarding maintenance of a minor child in a proceeding under the said Act.

12. We are also of the

view that amount of Rs.17,500/- per month towards maintenance of wife and minor daughter, studying in Standard-XII, cannot be said to be, in any manner, unreasonable or on a higher side. We are informed that the appellant-husband has bought a brand new car (Mahindra Logan) worth about Rs.6 lacs. If the appellant-husband can afford to buy a brand new car worth about Rs.6 lacs, then he can definitely pay an amount of Rs.17,500/- per month towards interim maintenance for the well-being of his wife and minor daughter.

13. In case of Kirtikant

D. Vadodaria V/s. State of Gujarat reported in (1996)4 SCC 479, the Supreme Court observed as under:-

“According

to the Law of the Land with regard to maintenance, there is an obligation of the husband to maintain his wife which does not arise by reason of any contract -express or implied – but out of jural relationship of husband and wife consequent to the performance of marriage. Such an obligation of the husband to maintain his wife arises irrespective of the fact whether he has or has no property, as it is considered an imperative duty and a solemn obligation of the husband to maintain his wife. The husband cannot be heard saying that he is unable to maintain due to financial constraints so long as he is capable of earning.”

(Emphasis

supplied by me)

14. In the case of

Chitra Sengupta V/s. Dhruba Jyoti Sengupta reported in AIR 1988 Calcutta 98 in para 4, the Division Bench held as under:-

“4. Class-less

society being still a very far cry and the society we live in being class-ridden to the extreme, the question as to what income is sufficient for the support of a wife, would, whether one likes it or not, has to be determined with reference to

the class she and her husband belong to. And, therefore, what may be considered to be sufficient for the support of the wife of a petty clerk would not be regarded to be sufficient for the support of the wife of a high-salaried big officer. “To support” lexically means to supply with necessaries and as S.68, Contract Act, would show necessaries in respect of a person must be “suited to his condition in life”. And as was held by a Division Bench of this Court in construing that Section in Jagon Ram v. Mahadeo Prosad (1909) ILR 36 Cal 768 at p. 777, necessaries would include everything necessary to maintain a person in the state, station or decree of life in which he is and being thus a relative expression must be determined with reference to those factors. It has been held by an another Division Bench of this Court in Surendra Nath v. Puspa, (1978) 2 Cal LJ 602 at p. 604, that the quantum of maintenance pendente lite under S.24, Hindu Marriage Act, would depend on various factors “such as, the ability of the husband, the needs of wife, the social status, age, education and other requirements”. It may also be noted that under S.23(2), Hindu Adoptions and Maintenance Act, 1956, in determining the amount of maintenance to be awarded to a wife, the first thing the Court would have to regard to is “the position and the status of the parties”. We are of the view that if the amount of maintenance awardable to the wife is to depend on the status and station of the husband, the amount which can be regarded to be sufficient for her support must also depend on and vary with the status and station of the husband. We would accordingly hold that the expression “income sufficient for her support” in S.24 of the Act would not mean only such amount as would be sufficient for the wife to eke out her existence at the subsistence level, but would cover such amount as would be necessary for the necessaries suited to the status and station which the wife would have enjoyed as the wife of the respondent-husband.”

15. In

the case of Smt.Padmavathi and others V/s. C. Lakshminarayana reported in AIR 2002 Karnataka 424, learned Single Judge observed in para 11 as under:-

“11. In S. 24 of

the Act, the Legislature intentionally has used the expression ‘maintenance’ of the spouse during the pendency of the proceedings under Hindu Marriage Act. The term maintenance has been used in a wide sense to include provision for food, clothing, residence, medical attendance and treatment etc. In my view, while using those expression, the Legislature must have kept in view the verdict of the Hindu Sages and the ‘Manu’ that the obligation to maintain the wife does not arise out of any contract express or implied, but out of status of the marriage and that obligation begins with the marriage and it cannot be refused on the ground that his financial condition is not good and a Hindu wife is entitled to maintenance, even if she lives separately from her husband for justifiable cause.”

16. The

Division Bench of Madhya Pradesh High Court in the Case of Durga singh Lodhi V/s. Prembai reported in 1990 Cri LJ 2065, was pleased to observe: (At Pp.2066-67)

“It includes

capacity to earn money. A healthy and able-bodied person but without any visible or real property must be held as having means to support his wife or child. Once a person has capacity to earn, he cannot escape his liability to maintain under S.125(1). A Full Bench of the Rangoon High Court, in Maung Tin v. Ma Hmin, AIR 1933 Rang 138 : (1933) 34 Cri LJ 815 held that sufficient means is not confined to pecuniary resources. This view was shared by the Nagpur High Court in Abdul Wahab v. Sugrabi, (1936) 37 Cri LJ 86. The Madhya Bharat High Court, in Prabhulal v. Parwatibai, AIR 1952 Madh Bha. 96 : (1952 Cri LJ 868) even went to the extent of saying that mere minority or the fact that the husband does not work cannot come in the way of grant of maintenance to the wife. What should be ascertained is the earning capacity of the husband, if he is compelled to work, ‘Means’, of course, has to be sufficient to maintain. An able bodied person in our opinion, must be held as having sufficient means to maintain and it will always be for such a person to prove to the contrary. The view taken by the Delhi High Court, in Chander Prakash v. Shila Rani, AIR 1968 Delhi 174 : 1968 Cri LJ 1153 in this regard, is that an able bodied young man must be presumed to be capable of earning sufficient money so as to be able to reasonably maintain his wife and child and he cannot be heard to say that he is not in a position to earn enough to be able to maintain them according to the family standard. It is for such able bodied person to show to the Court cogent grounds for holding that he is unable, for reasons beyond his control to earn enough to discharge his legal obligation of maintaining his wife and child. We are, therefore, of the firm opinion that as a person cannot avoid his liability under S.125(1), Cr. P.C. merely because he has no tangible real property or income, but is otherwise able bodied and healthy and has capacity to earn. The presumption should be

that such an able bodied and healthy person has capacity to earn. The presumption should be that such an able bodied healthy person is possessed of sufficient means and it is for him to show that by accident, disease or the

conditions of labour

market or otherwise, he is not capable of earning anything.”

17. We are constrained

to observe from the attitude exhibited by the appellant-husband that at any cost, he does not want to discharge his legal obligation to maintain his wife and minor daughter. We feel that the appellant-husband resiled with impunity from the statement he made that he is ready and willing to pay a sum of Rs.8 lacs towards full and final settlement of the matter.

18. In the above view of

the matter, we hold that the appellant-husband is not entitled to any relief. We do not find any error or any infirmity in the order passed by the learned Single Judge. We, therefore, dismiss this appeal with no order as to costs.

19. Before parting, we

make it clear that the appellant-husband will keep on paying the sum of Rs.17,500/- per month towards interim maintenance as ordered by the learned Single Judge vide order dated 04.05.2010 passed in Special Civil Application No.3054 of 2010.

20. In light of the fact

that main appeal has been ordered to be dismissed, Civil Application would not survive and the same is accordingly disposed of.

(S.J.

MUKHOPADHAYA, CJ.)

(J.B.PARDIWALA,

J.)

Hitesh

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HC: Husband PM income 32000, wife PM Salary 16000, HC awarded 10000 PM to wife, son with husband, daughter with wife August 1, 2011Fighting Legal Terror Leave a comment

Smt. Sanyogita Pundir vs Parth Singh Pundir on 14 July, 20111

IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL First Appeal No.39 of 2011

Parth Singh Pundir

S/o Shri Laxmi Chand Pundir

R/o 196, Indira Nagar Colony,

P.S. Vasant Vihar, Dehradun

District Dehradun

…….. Plaintiff/Appellant

Versus

Smt. Sanyogita Pundir

W/o Shri Parth Singh Pundir



District Dehradun

……….Defendant/Respondent

Shri Pawant Mishra, Advocate, present for the plaintiff/appellant Smt. Prabha Naithani, Advocate, present for the defendant/respondent Alongwith

AO No. 248 of 2011

Smt. Sanyogita Pundir

W/o Shri Parth Singh Pundir



District Dehradun

……..Appellant

Versus

2

Parth Singh Pundir

S/o Shri Laxmi Chand Pundir



District Dehradun

……….Respondent

Smt. Prabha Naithani, Advocate, present for the appellant Shri Pawan Mishra, Advocate, present for the respondent. Hon’ble Prafulla C. Pant, J.

Hon’ble Sudhanshu Dhulia, J.

Oral: Hon’ble Prafulla C. Pant,J. Both these appeals, preferred under section 19 of Family Courts Act, 1984, are directed against the same order dated 30.05.2011, passed by Principal Judge, Family Court, Dehradun, whereby said court has directed husband (Parth Singh Pundir) to pay pocket money/maintenance at the rate of ` 5,000/- per month to his wife (Sanyogita) in addition to ` 8,000/ lump sum towards litigation expenses under section 24 Hindu Marriage Act, 1955. (Registry has wrongly registered one appeal as AO and another appeal as FA. Both should have been numbered as appeal from order).

3

2. Heard learned counsel for the parties, and perused the papers on record.

3. Brief facts, of the case, are that Parth Singh Pundir got married to Sanyogita on 29.01.2001, following Hindu rites in Dehradun. Two children- a son and a daughter born out of the wed-lock. It appears that in 2008, relations between the parties to matrimony started souring. Parth Singh Pundir (husband) filed a divorce petition before the Principal Judge, Family Court, Dehradun, which was numbered as suit no. 369 of 2010. In said petition Sanyogita Pundir (Wife) moved an application 17A seeking maintenance under section 24 Hindu Marriage Act, 1955. The trial court, after hearing the

parties passed the impugned order aggrieved by which both the parties have filed separate appeals. Wife has sought enhancement in the amount of maintenance, whereas the husband has sought setting aside of the order.

4. At this stage we are not required to examine the allegation made by the petitioner (husband) against his wife on the basis of which 4

decree of divorce is sought, as said matter is still subjudice before the trial court. We are concerned with the economic status of the parties, and the fact whether the wife is unable to maintain herself, and whether the husband has means to maintain her. From the papers on record, it is admitted fact that the husband is a Income Tax payee. It has also come on the record that from the copy of Income Tax return filed by him before the trial court his annual income for the assessment year 2009-10 was ` 3,86,070/-. For the same year wife also appears to have submitted Income Tax return showing her monthly income ` 14,000/- (annual income ` 1,68,000-/). It is alleged in the application by the wife that her husband is a businessman who has got agency of Airtel, Haldiram, Britania, Cadbury , Lakme and Hindustan Liver. It is also pleaded by her that he also runs a 15 rooms hostel named Laxmi Institute. In reply to this, the husband has pleaded before the trial court that the wife is earning ` 16,000/- per month, and needs no help from him.

5. Having considered the facts and circumstances of the case, and arguments 5

advanced on behalf of the learned counsel for the parties, we find that direction to pay the maintenance at the rate of ` 10,000-/ per month to be paid by the husband to his wife would meet the ends of justice. The wife is entitled to the amount of maintenance as per the economic status of the parties. Learned counsel for the husband submitted before this Court that he is incurring expenses on the studies of his son who is in boarding school of Mussoorie. As to the daughter though he says that he maintaining her also but learned counsel for the wife pleaded before us that during the pendency of the suit, now the wife has been ousted with the daughter from the house of her husband.

6. For the reasons as discussed above, we dispose of both these appeals up-holding the amount of litigation expenses directed to be paid by the trial court, but we hereby enhance, and direct the husband (Parth Singh Pundir) to pay maintenance at the rate of ` 10,000/-per month to his wife (Sanyogita) under section 24 Hindu Marriage Act, 1955, till the disposal of the divorce petition. Accordingly, First Appeal (FA)no. 39 of 6

2011, stands dismissed, and Appeal from Order (AO) no. 248 of 2011, stands partly allowed to the extent that the husband shall pay maintenance under section 24 Hindu Marriage Act, at the rate of ` 10,000/- (instead of ` 5,000/-) to his wife. The husband is allowed to pay the arrears of the maintenance to his wife or deposit in her favour before the trial court within a period of one month from today, and thereafter by tenth of every next month till the disposal of the divorce petition. Amount paid under interim order dated 09.06.2011, by this Court shall be adjusted from the arrears required to be paid by the husband. (Stay application no. 6768 of 2011, miscellaneous application no. 6969 of 2011 and stay application no. 5408 of 2011, also stand disposed of). (Sudhanshu Dhulia, J.) (Prafulla C. Pant, J.) 14.07.2011

Parul


HC: Husband showed monthly income as 10000 and Family court/HC fixed monthly maintenance as 20000!!! July 26, 2011Fighting Legal Terror Leave a comment

Mumbai HCMr Harish S/O Nandlal Gaba vs Smt. Monica Harish Gaba on 19 July, 2011Bench: R. M. Savant1

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

BENCH AT NAGPUR, NAGPUR.

WRIT PETITION NO. 1249 /2011

Mr Harish s/o Nandlal Gaba

Aged 42 years, occu: Business

R/o 44/17A, Saraswati Vihar

Opp: Reliance Web World Mall Road

Amritsar (Punjab). .. …PETITIONER v e r s u s

Smt. Monica Harish Gaba

Aged 39 years, occu: Hosuewife

R/o C/o Laxmandas Narang,

Op: Avanti Hospital, Dhantoli,Nagpur

Tah. & Dist. Nagpur. …RESPONDENT ……………………………………………………………………………………………………………. Mr. H D Dangre, Advocate for the petitioner

Mr.K M Nankani, Advocate for respondent

……………………………………………………………………………………………………….. CORAM: R.M.SAVANT, J.

DATED : 19TH JULY,2011,

ORAL JUDGMENT :

Rule. With the consent of the parties, made returnable forthwith and heard.

2

2. The above petition takes exception to the order dated 2.12.2010 passed by the learned Principal Judge, Family Court, Nagpur by which order, the petitioner-herein has been directed to pay Rs.20,000/- per month towards maintenance pendente lite from the date of the application till the disposal of the main petition.

3. The facts involved can be stated thus : The marriage between the petitioner and the respondent was solemnized on 29.11.1993. The petitioner-husband is resident of Amritsar (Punjab); whereas the respondent-wife was residing with her parents at Nagpur. The petitioner and the respondent have a daughter by name, Taniya, who is aged about 15 years. It appears that on account of the marital discord, the respondent left the matrimonial house on 1.4.2009 along with her daughter Taniya. The petitioner thereafter filed an application under section 9 of the Hindu Marriage Act for restitution of conjugal rights in the Court of learned Civil Judge, Sr.Dn.,Amritsar. It appears that the relations between the parties came to such a pass that criminal complaints were filed against the petitioner and his family members. It appears that thereafter the respondent-wife filed a petition u/s 13 (1) (ia) of the Hindu Marriage Act for dissolution of marriage and return of stridhan which petition was numbered as A-445/2009 before the Family Court at Nagpur. In the said petition, the respondent-wife filed an application which was 3

numbered as Exh. A under section 24 of the said Act for grant of maintenance @ Rs. 25,000/- pendente lite and Rs. 50,000/- as litigation expenses.

4. It was the case of the respondent-wife that the petitioner was doing business in the name and style of “Taniya Jewellers” and was dealing in gold and diamond jwellery. It was the case of the respondent that the monthly income of the petitioner was Rs.1,25,000/- ;wheres the respondent was at the mercy of her parents and her friends for survival. It was further the case of the respondent that considering the lifestyle to which she was used to while staying with the petitioner, a sum of Rs. 25,000/- be fixed as maintenance pendente lite so that she could take care of herself and her daughter who is now past 15 and who is studying in X standard, so that they could have the same life-style which she was used to while staying with the petitioner. To the said application, the petitioner filed his reply and inter alia denied the claims and contentions of the respondent. It was denied that the petitioner was doing the business in the name and style of “Taniya Jewellers”. It was further denied that his income was Rs.1,25,000/-. The petitioner annexed the

Income Tax return form for the assessment year 2007 -08 wherein his income was shown as Rs.1,07, 037/- for the assessment year in question. It was further the case of the petitioner that the respondent was running 4

a Boutique, out of which she was earning approximately Rs.12,000 per month.

5. The Family Court considered the said application Exh.8 filed by the respondent for maintenance pendente lite and considering the respective cases thought it fit to fix the interim maintenance at Rs.20,000/- per month. The gist of the reasoning of the Family Court was that the petitioner herein has not filed any document to show that his income was Rs.10,000/- per month and on the basis that the income out of the jewelery shop must be more than Rs.1,00,000/- per month, the Family Court deemed it fit to fix the maintenance pendente lite in the said sum of Rs.20,000/- by the impugned order dated 2.12.2010 as indicated above. It is the said order which is the subject-matter of challenge in the above petition.

6. Heard learned counsel for the parties. Mr. H D Dangre, learned counsel for the petitioner sought to raise three contentions: Firstly that the petition filed in the Family Court, Nagpur was not maintainable in view of Section 19 of the Hindu Marriage Act, 1955 ; secondly that there are no pleadings in support of the claim of Rs.25,000/- as maintenance and thirdly that he has never deserted the respondent and an order of Rs.5000/- was already operating against him in the domestic violence 5

proceedings adopted by the respondent.

7. Per contra, it is submitted by Shri Nankani, learned counsel appearing for the respondent-wife that the impugned order passed by the Family Court need not be interfered with in the facts and circumstances of the case, when the petitioner admittedly is not working and has to look after a 15-year old daughter who is studying in X standard. Learned counsel would contend that the petitioner herein has very cleverly not disclosed his income from the business of Taniya Jwellers and has sought to merely rely upon the return filed under the Income Tax Act. Learned counsel would contend that in the facts and circumstances of the case, the interim maintenance fixed at Rs.20,000/- need not be interfered with.

8. Having heard learned counsel for the parties, in my view, the order fixing interim maintenance need not be interfered with save and except to the extent that would be mentioned hereinafter:

9. It is pertinent to note that from the documents which the petitioner himself has filed in the trial Court, it is ex-facie clear that the petitioner is carrying on business in the name and style of “Taniya Jewellers”. If it was the case of the petitioner that his income from the said Jewellery business was Rs.10,000/-, he should have 6

produced the relevant documents in that behalf. The trial Court in the absence of any material produced by the respondent was right in drawing an inference that it is impossible to accept that the income from the jewelery business is only Rs.10,000 per month. It is further pertinent to note that the petitioner has specifically averred as regards the life-style which she was enjoying while she was staying with the petitioner in the matrimonial home. The petitioner also does not dispute the fact that their daughter is now 15 years old and is studying in X standard in a reputed school in the city of Nagpur. Considering the said facts, in my view, the Family Court has proceeded on the correct premise that the respondent would be entitled to the same standard which she enjoyed while she was in the matrimonial home.

10. The fact that the daughter is studying in X standard would also be a relevant fact while considering the issue of maintenance pendente lite as the maintenance is sought in respect of respondent-wife as also the daughter. Learned counsel for the respondent-wife in the course of arguments submitted that the fees of the school wherein the daughter of the petitioner and the respondent studying is in the sum of Rs.80,000/- per year. Considering the said aspect the maintenance pendente lite has to be commensurate with the said expenses that the respondent wife is incurring for her own maintenance as well as the maintenance of the 7

daughter. However, one fact cannot be lost sight of is that the respondent wife is already getting Rs.5000/- in the proceedings filed under the Domestic Violence Act by the respondent at Nagpur. Hence, the maintenance pendente

lite is required to be interfered with to the extent of reducing it by Rs.5,000/- to make it Rs. 15,000/- per month. In my view the issue of the jurisdiction of the Family Court at Nagpur need not be gone into while considering the issue of interim maintenance. Save and except the modification as aforesaid, no interference is called for with the impugned order dated 2.12.2010 passed by the Family Court. The Writ Petition is, therefore, allowed to the extent above. Rule is accordingly made partly absolute. Parties to bear their respective costs. JUDGE

sahare

Categories:DV Judgements, Judgement

HC to Family Court: Dont consider wife statement gospel truth and husband statement as lie June 16, 2011Fighting Legal Terror Leave a comment

http://judgmenthck.kar.nic.in/judgments/bitstream/123456789/427799/1/WP4594-00-13-06-2002.pdfCategories:Judgement

PUNJAB AND HARYANA HC: Maintenance in one case to be set off against another case May 4, 2011Fighting Legal Terror 1 comment

IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH

CR NO.4813 OF 2009 (O&M)

DECIDED ON : 25.08.2009

Raman Ahuja @ Banti …Petitioner versus

Vandana …Respondent CORAM : HON’BLE MR. JUSTICE AJAY TEWARI Present : Mr. Karan Vir Nanda, Advocate for the petitioner.

AJAY TEWARI, J. (ORAL)

This petition has been filed against the award of maintenance pendente lite of Rs.3,000/- per month. The only prayer made by the learned counsel for the petitioner is that the petitioner is already paying maintenance under Section 125 Cr.PC and Protection of Women from Domestic Violence Act, 2005 and that the petitioner should not have to pay maintenance on independent accounts. In fact what the learned counsel for the petitioner is praying for is really the law. Learned counsel further relied upon the judgment of Hon’ble Supreme Court titled as Sudeep Chaudhary versus Radha Chaudhary 1999 AIR (SC) 536.

Consequently, this petition is dismissed with the clarification that the amount awarded by the impugned order would be set off against the maintenance being paid by the petitioner to the respondent under other proceedings. August 25, 2009 (AJAY TEWARI) sonia JUDGE

Categories:Judgement, Judgement

Kolkata High Court: 125 CrPC to be adjusted against HMA maintenance May 4, 2011Fighting Legal Terror 1 comment

03.04.09

C.O. No.3925 of 2008

Anutosh Datta

Versus

Manasi Datta @ Sona

Mr. Jiban Ratan Chatterjee

Mr. T. N. Halder

.For the petitioner

Mr. Sanat Chowdhury

For the O.P.

This application under Article 227 of the Constitution of India is filed by the petitioner/plaintiff challenging the order dated 18th December, 2006 and order dated 30th August, 2008 passed by the learned Additional District and Sessions Judge, Fast Track Court, fifth Court at Alipore, 24-Parganas (South), in Misc. Case No.19 of 2005 arising out of Mat. Suit No.83 of 2004.

It is necessary to mention relevant fact for disposing of the present application. The petitioner/plaintiff filed the above Matrimonial Suit before the learned District Judge at Alipore and subsequently the same was transferred to the learned Additional District and Sessions Judge, Fast Track Court, 5th Court at Alipore. 2

During the pendency of the above matrimonial suit the opposite party/defendant filed an application under Section 24 of the Hindu Marriage Act for alimony Pendentilite vide Misc. Case No.19 of 2005. Learned Additional District Judge passed the order on 18.12.2006 in Misc. Case NO.19 of 2005 as ex parte and directed to pay a sum of Rs.3,500/- per month to the petitioner and further Rs.2000/- per month for the minor daughter of the petitioner towards alimony pendentilite and it is further directed to the husband to pay sum of Rs.4,000/- in lump sum towards cost. The petitioner husband filed another application under Section 151 C.P.C. with a prayer for vacating the said ex parte order dated 18.12.2006. Learned Additional District Judge after hearing of both sides rejected the said application on 30.8.2008.

Being aggrieved and dissatisfied against the order dated 18.12.2006 and 30.8.2008 the petitioner/husband filed the present application for setting aside the orders.

Mr. Jiban Ratan Chatterjee learned advocate appearing on behalf of the petitioner 3

pointed out that the learned Court below was vacant since a long time i.e., from August, 2005 to 12.10.2006. On 23.11.2006 the learned Judge joined in the Court and the said Misc. Case No.19 of 2005 was taken up for hearing but the O.P./husband was absent and as such another date was fixed on 18.12.2006 and on that date the learned Judge after taking the evidence of the petitioner/wife disposed of the case as an ex parte as the O.P. was absent. The present petitioner has filed the application under Section 151 C.P.C. for vacating the said order and on 30.8.2008 the learned Judge rejected the prayer of the petitioner after hearing of both sides. Learned Advocate also pointed out that the opposite party/wife is receiving the amount of maintenance as per order of the learned Magistrate under Section 125 Cr. P. C. but the learned Judge without adjustment the said amount passed the order for maintenance pendentilite till the disposal of the Mat. Suit. That order is bad in law and relevant order dated 18.12.2006 is liable to be set aside. 4

In support of the contention Learned Advocate on behalf of the petitioner has cited a case law reported in AIR 1999 Supreme Court 536 (Sudeep Chaudhary v. Radha Chaudhary). Learned Advocate also pointed out that there was the sufficient ground for allowing the application under Section 151 C.P.C. but the Court did not show any liberal approach for allowing the same and as such learned Court refused the prayer on 30.8.2008. In support of the contention learned Advocate has cited a case law reported in AIR 1987 Supreme Court 1353 (Collector, Land Acquisition Anantnag and another v. Mst. Katiji and others).Considering the above aspects the present application may be allowed for setting aside the above orders passed by the learned Additional District Judge, Fast Track Court. Learned Advocate on behalf of the O.P. has pointed out that when the order was passed by the learned Court as ex parte, the petitioner/husband might approach to the Court for setting aside the said ex parte order under 5

Order 9 Rule 13 of the C. P. C. and in the present matter the petitioner/husband did not approach before the learned Judge for setting aside the same. As such there is no scope to interfere in the orders dated 18.12.2006 and 30.8.2008. The present application is liable to be dismissed.

In support of the contention learned Advocate cited a case law reported in AIR 1964 Supreme Court 993 (Arjun Singh v. Mohindra Kumar and others.)

Heard both sides.

From the xerox copy of the relevant day to day order sheets of the learned Court below filed on behalf of the petitioner it is clear that the learned Judge, Fast Track, 5th Court at Alipore was vacant. In the relevant order No.39 dated 23.11.2006 it states that learned Judge took up the Misc. Case for hearing but the O.P. was absent on that day and as such the learned Court fixed the date on 18.12.2006 as ex parte and on 18.12.2006 the O.P. did not appear and as such the learned Judge disposed of the Misc. Case No.19 of 2005 as ex parte after taking the 6

evidence of the petitioner/wife and in the said order learned Judge directed to pay a sum of Rs.3,500/- per month to the petitioner and further Rs.2,000/- per month for the minor daughter of the petitioner towards alimony pendentilite. In the said order there is no observation regarding the adjustment of the amount awarded under Section 125 Cr. P. C. towards the amount awarded in the matrimonial proceeding under Section 24 of the Hindu Marriage Act. In the written objection filed on behalf of the opposite party/husband in Misc. Case No.19 of 2005, it is clear in paragraph 10 that the interim maintenance of Rs. 1,200/- per month was allowed. However, in the case Sudeep Chaudhury (supra) the Apex Court observed “the amount awarded under Section 125 of the Cr. P. C. for maintenance was adjustable against the amount awarded in the matrimonial proceeding and was not to be given over and above the same.”

There is gross irregularity in the order dated 18.12.2006 passed by the learned Judge, 7

Fast Track Court for not adjustment of the amount awarded under Section 125 Cr. P. C. It is true that the petitioner/husband filed an application under Section 151 C. P. C. and that was dismissed on contest. The said application was filed with reference to a proceeding not in the suit and as such there is no scope to interfere in the said application as per provision order 9 Rule 13 of the C. P. C. However, the said application was filed in a belated way. The Court should adopt liberal approach to consider the matter. But the learned Judge failed to do the same.

Considering all aspects the orders dated 18.12.2006 and 30.8.2008 passed by the learned Additional District Judge Fast Track 5th Court at Alipore in Misc. Case No.19 of 2005 have some irregularities. Orders dated 18.12.2006 and 30.8.2008 are set aside. Learned Additional District and Sessions Judge, Fast Track, 5th Court at Alipore is requested to dispose of the Misc. Case 19 of 2005 afresh after giving an opportunity for hearing of both sides within two months from the date of receipt of the order. 8

The application is disposed of accordingly.

There is no order as to costs.

C.O. No.3925 is disposed of accordingly. Urgent xerox certified copy of the order be supplied to the party, if applied for. (TAPAS KUMAR GIRI, J.)


HC: CrPC 125 maintenance to be adjusted against HMA May 4, 2011Fighting Legal Terror 2 comments

Equivalent citations: I (2001) DMC 6Bench: S MishraSandhya Kumari vs State Of Bihar on 7/2/2000JUDGMENT

S.N. Mishra, J.

1. In this criminal revision application the petitioner has prayed for setting aisde the order dated 9.8.1999 passed by the learned Magistrate whereby he has rejected the prayer for maintenance in terms of Section 125, Cr.P.C. It appears that petitioner Sandhya Kumari has filed an application for grant of maintenance under Section 125, Cr.P.C. before the learned Chief Judicial Magistrate, Samastipur, which was registered as Misc. Case No. 46 of 1999.

2. Shortly stated that case of the petitioner is that the petitioner was married the opposite party No. 2 Manish Kumar on 21.5.1986 according to Hindu customs and rituals at Samastipur. It is further alleged that father of the petitioner invested a lot of money on the marriage of the petitioner by giving clothes, jewellery, furniture, utensils, refrigerator, colour T.V., car etc. and cash according to his capacity. The opposite party-husband is an architect and is working in private sector. He made a demand of Rs. 4-5 lacs for starting business but the petitioner’s parents showed their inability to fulfil his demand, as a result the petitioner is being tortured and harassed for non-fulfilment of demand. Ultimately, it is alleged that the in-laws have finally turned out the petitioner of her matrimonial house. In spite of the several attempts made from the side of the petitioner’s family in order to restore the conjugal life of the petitioner and the opposite party all went in vain. It is further alleged that since the opposite party was interested for re-marriage he filed a matrimonial suit for divorce. It is alleged that the petitioner is unemployed and totally dependent on her parents since 1991 whereas the opposite party is quantified Engineer having substantial immovable property, out of which he is getting Rs. 25,000-30,000/- as per month income. The opposite party in order to get remarried, has filed a petition for divorce on 31.1.1994 which was registered as Matrimonial Case No. 2 of 1994 before the learned 2nd Additional District Judge, Sitamarhi. Ultimately, the learned Judge by his judgment and decree dated 23.8.1996 decreed the suit

and directed to pay a sum of Rs. 2,500/- per month by way of monthly allowance to the petitioner. Against the said direction, the opposite party has filed an appeal before this Court being F.A. No. 478 of 1996. Similarly, the petitioner has also challenged the judgment and decree of the Court below and, accordingly, filed an appeal before this Court being F. A. No. 429 of 1996. Both these First Appeals are pending before this Court for disposal. During the pendency of the matrimonial suit, the learned Judge directed the opposite party to pay maintenance pendente lite and cost of litigation to the petitioner in terms of Section 24 of the Hindu Marriage Act retrospectively w.e.f. March 1994, by his order dated 97.1996. Against the order directing to pay the maintenance, the opposite party has challenged the order by filing Civil Revision No. 1292 of 1996 and by order dated 21.1.1996 the said order of ad interim maintenance was set aside. It is alleged that since the petitioner is not getting a single farthing from the opposite party in terms of the judgment and decree passed by the Court below, she has filed application for maintenance under Section 125, Cr.P.C for grant of maintenance as she has no source of income and totally depends upon her parents. The learned Magistrate has refused to grant maintenance mainly on two grounds; firstly, that because of the decree of divorce passed by the Civil Court she cannot be said to be the wife for grant of maintenance under Section 125, Cr.P.C. and, secondly, having regard to the fact that she has really been granted maintenance under the provisions of the Hindu Marriage Act, she cannot claim the maintenance under the provisions of the Code of Criminal Procedure.

3. The reasons assigned by the learned Magistrate cannot be accepted for the simple reason that the divorced wife is equally entitled to maintenance in terms of Section 125, Cr.P.C. The Explanation appended to Section 125, Cr.P.C. where from it appears that “wife” includes a woman who has been divorced by, or has obtained a divorce from her husband and has not remarried. The said Explanation appended to Section 125, Cr.P.C. reads thus :

“(a) “minor” means a person who, under the provisions of the Indian Majority Act, 1875 (9 of 1875), is deemed not to have attained his majority;

(b) “wife” includes a woman who has been divorced by, or has obtained a divorce from, her husband and has not remarried……”

Admitted position is that the petitioner has not remarried as yet.

4. The second reason assigned by the teamed Magistrates also seems to be misconceived one in view of the fact that the scope of Section 125, Cr.P.C. as well as Section 24 of the Hindu Marriage Act stand on different footing. It is true that the maintenance granted under the Hindu Marriage Act can be adjusted out of the amount granted under Section 125, Cr.P.C. I am supported by a decision in the case of Sudeep Chaudhary v. Radha Chaudhary, reported in AIR 1999 SC 536, wherein it has been held that when the wife is granted interim alimony both under Section 24 of the Hindu Marriage Act and under Section 125, Cr.P.C., in that event, the maintenance amount granted under Section 125, Cr.P.C. is to be adjusted against the amount awarded in matrimonial proceeding. Admittedly, not a single farthing has been paid to the petitioner as yet in terms of the decree passed by the Civil Court. In that view of the matter, the petitioner, being a wife though divorced one, is still entitled to the maintenance in terms of Section 125, Cr.P.C. However, the amount of maintenance allowed under the provisions of Hindu Marriage Act is subject to adjustment of the amount granted in terms of Section 125, Cr.P.C.5. After having heard the learned Counsel for the parties and going through the materials on record, the order dated 9.8.1999 passed by the learned Magistrate is hereby, set aside. This application is, accordingly allowed.


SC: Amount awarded under 125 CrPC is adjustable against the amount awarded in the matrimonial proceedings May 4, 2011Fighting Legal Terror 1 comment

Equivalent citations: AIR 1999 SC 536, 1999 CriLJ 466, JT 1998 (9) SC 473Bench: S Bharucha, F UddinSudeep Chaudhary vs Radha Chaudhary on 31/1/1997

JUDGMENT

S.P. Bharucha, J.

1. Special leave granted.

2. The respondent-wife has been served by substituted service but does not appear.

3. The appellant-husband and the respondent-wife are estranged. The wife filed an application under Section 125 of the Criminal Procedure Code for maintenance which was awarded at the rate of Rs. 350/- p.m. with effect from 3rd July, 1990, and was subsequently enhanced to Rs. 500/- p.m.

4. In proceedings under the Hindu Marriage Act the wife sought alimony. It was granted at the rate of Rs. 600/- p.m. on 11th August, 1987, and the amount, thereof was subsequently enhanced to Rs. 800/- p.m.

5. Since the husband failed to pay the amount of maintenance as aforesaid, the wife started recovery proceedings. The husband contended that the maintenance amounts should be adjusted against the interim alimony and the Magistrate before whom the recovery proceedings were pending upheld the contention. The High Court, in the order which is under appeal, held that the Magistrate was in error in directing adjustment of the maintenance amount awarded under Section 125 of the Cr.P.C. against the amount awarded under Section 24 of the Hindu Marriage Act.

6.We are of the view that the High Court was in error. The amount awarded under Section 125 of the Cr.P.C. for maintenance was adjustable against the amount awarded in the matrimonial proceedings and was not to be given over and above the same. In the absence of the wife, we are, however not inclined to go into any detailed discussion of the law.

7. At the same time, we feel that the claims of the husband and the wife are to be balanced. We, therefore, direct that the husband shall pay to the wife towards maintenance (which now comprehends both the amount awarded under Section 125 of the Cr.P.C. and the amount awarded in the matrimonial proceedings) the sum of Rs. 1,000/- p.m. commencing from 3rd July, 1990. The arrears, if any, shall be paid within 8 weeks.

8. This order will be subject to such orders as may be passed at the stage of final disposal of the matrimonial proceedings.

9. The appeal is disposed of accordingly.

10. No order as to costs.


Family Court award 2500 maintenance to Husband but HC quashes it March 23, 2011Fighting Legal Terror 1 comment

IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL

Appeal From Order No. 356 of 2010

Smt. Pratiksha Arya

W/o Sri Deepak Kumar Arya

D/o late Shri Mahesh Chandar Arya

R/o Staff House Compound, Mallital,

Nainital, District Nainital.

… . Appellant

Versus

Sri Deepak Kumar Arya

S/o Sri Daulat Ram

R/o Teachers Colony, Kichcha,

Tehsil Kichcha, Distt. Udham Singh Nagar.

… . Respondent

Mr. Akhil Kumar Sah, Advocate, present for the appellant. Mr. D.S. Mehta, Advocate, present for the respondent.

Coram : Hon’ble Prafulla C. Pant, J. Hon’ble V. K. Bist, J.

Hon. Prafulla C. Pant, J. (Oral)

This appeal, preferred under Section 19 of the Family Courts Act, 1984, is directed against the order dated 16.08.2010, passed by Principal Judge, Family Court, Nainital, in Civil Suit No. 148 of 2009, whereby said court has directed the appellant to pay maintenance at the rate of ` 2,500/- per month to her husband 2

(respondent) under Section 24 of the Hindu Marriage Act, 1955.

2) Heard learned counsel for the parties.

3) Brief facts of the case are that parties to this appeal are in litigation before the trial court where respondent Deepak Kumar Arya has filed a petition for divorce against the present appellant Pratiksha Arya. In said suit, he moved an application under Section 24 of the Hindu Marriage Act, 1955, for maintenance at the rate of ` 10,000/- per month from his wife Pritiksha Arya. The application was contested by the wife, who alleged that her husband runs a computer center at Kichcha, and owns property worth lakhs of rupees there.

4) Section 24 of the Hindu Marriage Act, 1955, applies equally to both spouses. It provides that where in any proceeding under the Act it appears to the court that either the wife or the husband, as the case may be, has no independent income sufficient for her or his support, it may, on the application of wife or the husband, order the other party to pay monthly maintenance during the proceeding initiated under the Act. Normally, in the Indian society, we see husband as an earning member in the family and wife dependent on him. But Section 24 takes note of all kinds of situation including the one in which husband is unable 3

to maintain himself and dependent on his wife. As such, as far as maintainability of the application moved by the husband is concerned, the same was maintainable, seeking maintenance from the wife.

5) However, whether actually in the present case, the husband was entitled for maintenance under Section 24 of the Hindu Marriage Act, 1955, is required to be examined. The husband has moved an application for maintenance on the ground that his wife is a teacher and earning ` 18,000/- per month (actually found ` 9,300/- per month). He has pleaded that he is not employed anywhere. On the other hand, in the objections filed before the trial court by the present appellant it is specifically pleaded that her husband Deepak Kumar Arya (present respondent) runs a computer center in Kichcha. It is also pleaded by her that her husband owns property worth lakhs of rupees. The trial court has simply taken note of the fact that since the present appellant is a teacher in a primary school and getting salary of ` 9,300/- per month, it directed the appellant to pay maintenance at the rate of ` 2,500/- per month to her husband. The trial court has ignored the economic status of the husband. It is nowhere categorically discussed nor concluded by the trial court that the husband does not run the computer center or does not own any property, as alleged by his wife. It is also evident from the impugned order that present appellant 4

(wife) is a teacher in a primary school at some interior place of posting.

6) Having considered submissions of learned counsel for the parties and after going through the papers on record, we are of the view that though the application by the husband was maintainable under Section 24 of the Hindu Marriage Act, 1955, but in the facts and circumstances of the present case, it is not a fit case for granting maintenance to the husband by the wife. Therefore, without observing any opinion as to the final merits of the case pending before the trial court, this appeal is allowed, and the order dated 16.08.2010, passed by Principal Judge, Family Court, Nainital, in Civil Suit No. 148 of 2009, is set aside so far it relates to the direction to the present appellant to pay maintenance at the rate of ` 2,500/- per month to her husband. Costs easy.

(V.K. Bist, J.) (Prafulla C. Pant, J.)

Dt. March 17, 2011.

H. Negi


Gujrat HC: Multiple maintenance is not illegal January 13, 2011Fighting Legal Terror 2 comments

SCA/15511/2010 3/3 ORDER

IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

SPECIAL CIVIL APPLICATION No. 15511 of 2010

=========================================================

KAUSHIKBHAI DHULABHAI DARJI – Petitioner(s)

Versus

PRAGNABEN KAUSHIKBHAI DARJI D/O RAGHUBHAI BHAGWANDAS – Respondent(s)

========================================================= Appearance :

MR BHARAT JANI for Petitioner(s) : 1,

None for Respondent(s) : 1,

=========================================================

CORAM :

HONOURABLE MR.JUSTICE KS JHAVERI

Date : 11/01/2011

ORAL ORDER

1. By way of this petition, the petitioner has prayed to quash and set aside the impugned order dated 08.04.2010 passed by the learned Principal Senior Civil Judge, Mehsana below application Exh. 24 in H.M.P. No. 27 of 2009 and the order dated 30.09.2010 passed by the learned Additional District Judge, Mehsana in Civil Revision Application No. 2 of 2010 whereby the said application was rejected.

2. The short facts of the case are that the respondent-wife had preferred Criminal Misc. Application No. 730 of 2007 under Section 125 of Cr. P.C. before the trial Court claiming maintenance. The trial Court after hearing the parties, vide order dated 25.02.2009 allowed the said application and fixed the maintenance allowance at Rs.600/- per month. Against the said order, the respondent preferred Criminal Revision Application No. 47 of 2009 before the Criminal Court, which came to be allowed vide order dated 01.06.2009. Against the said order, the petitioner preferred Special Criminal Application No. 1575 of 2009 before this Court, This Court vide order dated 03.02.2010 allowed the said application and set aside the order dated 01.06.2009 passed by the Criminal Court.

2.1. Against the said order, the respondent-wife preferred an interim application under Section 9 of the Hindu Marriage Act, for interim maintenance, which came to be allowed vide order dated 08.04.2010. Being aggrieved by the said order, the petitioner preferred Civil Revision Application No. 2 of 2010 before the revisional Court. The revisional Court vide order dated 30.09.2010 rejected the said application. Hence, this petition.

3. Heard learned counsel for the petitioner and perused the documents on record. The petitioner had filed a revision application in question against the order passed by the trial Court on an interim application whereby, the petitioner has been directed to pay an amount of Rs.400/- per month as maintenance to the respondent herein. It appears from the record that in the separate proceedings filed under Section 125 of Cr. P.C. the concerned criminal Court has also directed the petitioner to pay an amount of Rs.600/- per month as maintenance to the respondent. One of the contention raised by the petitioner was that when the criminal Court concerned had already directed the petitioner to pay maintenance to the respondent which the petitioner has been paying, then the trial Court in the H.M.P. Proceedings ought not to have ordered the petitioner to pay the maintenance on an interim application. However, I am not impressed by the above contention raised by the petitioner inasmuch as by now it is well settled that the proceedings under H.M.P. and the proceedings under Section 125 of the Cr.P.C. are totally different and a person can seek maintenance under both the proceedings. Therefore, so far as interim maintenance under two different acts are concerned, the same is permissible.

4. So far as the income of the petitioner is concerned, the revisional Court has recorded that the petitioner was earning Rs.2,500/- per month as salary from the Milk Co-operative Society and another Rs.4,000/- per month by doing additional work. Considering the income of the petitioner and the present day expenditure, the amount of maintenance awarded by the trial Court is just and reasonable. In my view the revisional Court has rightly appreciated the law on the subject and has rejected the revision application of the petitioner. I am in complete agreement with the reasonings given by the revisional Court in the impugned order and hence, find no reasons to interfere with the same.

5. Consequently, the petition is dismissed. No order as to costs.

[K.S. JHAVERI, J.]


Wife cannot claim maintenance from two different proceedings December 1, 2010Fighting Legal Terror Leave a comment

IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH Civil Revision No. 5775of 2008Date of decision : January 20, 2010

Smt. Sonia

….Petitioner

versus

Om Parkash

….Respondent

Coram: Hon’ble Mr. Justice L.N. Mittal

Present : Mr. GP Singh, Advocate, for the petitioner Mr. JS Saneta, Advocate,for the respondentL.N. Mittal, J. (Oral)

Smt. Sonia has filed this revision petition under Article 227 of theConstitution of India assailing order dated 18.9.2008 (Annexure P/2) passed bylearned Additional District Judge, Kaithal, whereby application moved by thepetitioner herein under section 24 of the Hindu Marriage Act, 1955 (in short,the Act) claiming maintenance pendente-lite and litigation expenses from therespondent-husband Om Parkash during pendency of divorce petition filed byrespondent herein against the petitioner under section 13 of the Act, has beendisposed of.The petitioner herein claimed litigation expenses and maintenancefor herself as well as for the minor son Jonny residing with her. Civil RevisionNo. 5775 of 2008 -2- The application was resisted by the respondent-husbandalleging that the petitioner had already received Rs 1,60,000/- as maintenancefor herself as well as for the minor child pursuant to compromise effectedbetween the parties and thereupon petition under section 13-B of the Act hadbeen filed but subsequently the petitioner herein withdrew her consent fordivorce by mutual consent and therefore, the said petition under section 13-Bof the Act was dismissed. Learned Additional District Judge vide impugned orderAnnexure P/2 rejected the prayer of the petitioner herein for maintenancependente-lite on the ground that she had already received Rs 1,60,000/- as percompromise between the parties but the respondent-husband has been directed topay Rs 5500/- as litigation expenses to the petitioner-wife. I have heardlearned counsel for the parties and perused the case file.Learned counsel for the petitioner vehemently contended that theamount of Rs 1,60,000/- which was payable to the petitioner under thecompromise was given to one Jai Bhagwan alias Dayala to be paid to thepetitioner herein after passing of decree of divorce and since petition undersection 13-B of the Act was dismissed, the said amount was paid by Jai Bhagwanalias Dayal to the respondent-husband and not to the petitioner. Reference hasbeen made to affidavit of Jai Bhagwan alias Dayala filed in the instantrevision petition. It was pointed out that the husband while appearing aswitness in petition under section 125 of the Code of Criminal Procedure (inshort, Cr.P.C.) admitted that the amount of Rs 1,60,000/- had been kept with

Jai Bhagwan alias Dayala and was to be paid to the petitioner-wife after grantof divorce.Civil Revision No. 5775 of 2008 -3- On the other hand, learned counsel forthe respondent contended that the petitioner-wife furnished affidavit withpetition under section 13-B of the Act admitting to have received amount of Rs1,60,000/- as per compromise. I need not to go into aforesaid contentionsraised by learned counsel for the parties because in petition under section 125Cr.P.C. filed by the petitioner-wife and minor son Jonny, they have beengranted Rs 750/- per month each as maintenance payable by the respondent-husband vide order dated 17.3.2009. The said order has attained finality.Consequently, the petitioner-wife cannot be granted maintenance pendente- litein the instant proceedings when she had already been awarded maintenance undersection 125 Cr.P.C. The quantum of maintenance has also been assessed on thebasis of evidence led by the parties. The petitioner cannot get doublemaintenance for the same period. Consequently, for this reason the impugnedorder cannot be set aside. As regards litigation expenses, learned AdditionalDistrict Judge has already granted Rs 5500/- as litigation expenses to thepetitioner- wife.In view of the aforesaid, there is no merit in the instant revisionpetition which is accordingly dismissed.( L.N. Mittal )

January 20, 2010 Judge ‘tiwana’


If double maintenance is allowed the offset one maintenance December 1, 2010Fighting Legal Terror Leave a comment

Civil Revision No. 2427 of 2009 -1- ***IN THE HIGH COURT OF PUNJAB AND HARYANA

AT CHANDIGARH

Civil Revision No. 2427 of 2009

Date of decision : 23.2.2010

Gian Chand

….Petitioner

Versus

Dilpreet Kaur …Respondent CORAM : HON’BLE MR. JUSTICE S. D. ANAND

Present: Mr. G.P.S.Bal, Advocate for the petitioner S. D. ANAND, J.

It is apparent from the record that respondent-wife is in receiptof two items of maintenance, one out of which had been awarded in her favour inthe course of proceedings under Section 125 Cr.P.C. and the other had beenawarded in her favour in allowance of the proceedings under Section 24 of theHindu Marriage Act. The learned counsel, appearing on behalf of the petitioner,states that the interest of justice would be served and the petitioner would becontent if it is ordered that the amount awarded to the respondent-wife in theproceedings under Section 125 Cr.P.C. is ordered to be set off against theamount awarded in her favour (for self and the only child of the parties).There is none on behalf of the respondent to resist thepresentation aforementioned.There can be no dispute with the proposition that a wife can availof maintenance in the course of the proceedings under Section 125 Cr.P.C. or it

can have the cake in terms of Section 24 of the Hindu Civil Revision No. 2427 of2009 -2- ***Marriage Act. There also can be no dispute with the proposition that theamount awarded in the course of either of the proceedings in favour of the wifehas to be set off against the amount awarded to her in the other proceedings.There is no law which would entitle the wife to resist the indicated set off inthe matter of maintenance awarded in her favour. In the present case,maintenance at the rate of Rs.1500/- has been awarded by the criminal Court inCourt in favour of the respondent- wife and the only child of theparties,however, in the course of the divorce proceedings, the learned TrialJudge awarded maintenance pendent-lite at the rate of Rs.3,000/- per month tothe respondent-wife. In the light of foregoing discussion, the petition shallstand disposed of with a direction that the amount awarded to the respondent-wife for self and only child of the parties shall be set off against the amountawarded in favour of the respondent-wife in the proceedings under Section 24 ofthe Hindu Marriage Act..February 23, 2010 (S. D. ANAND) Pka JUDGE


No maintenance to well qualified and capable wife December 1, 2010Fighting Legal Terror 1 comment

IN THE HIGH COURT OF MADHYA PRADESH (INDORE BENCH)Civil Revision No. 1290/99 Decided On: 24.03.2000Appellants: Smt. Mamta Jaiswal Vs. Respondent: Rajesh JaiswalHon’ble Judges:J.G. Chitre, J.Counsels:For Appellant/Petitione r/Plaintiff: S.A. Mev, Adv.For Respondents/ Defendant: S.K. Nigam, Adv.Acts/Rules/Orders:Hindu Marriage Act, 1955 – Sections 24 and 26Disposition:Revision dismissedORDERJ.G. Chitre, J.1. Heard.The petitioner Mamta Jaiswal has acquired qualification as M.Sc., M.C., M.Ed. and was working in Gulamnabi Azad College of Education, Pusad, Dist. Yeotmal (MHS). The husband Rajesh Jaiswal is sub-engineer serving in Pithampur factory. The order which is under challenge by itself shows that

Mamta Jaiswal, the wife was earning Rs. 4000/- as salary when she was in service in the year 1994. The husband Rajesh Jaiswal is getting salary of Rs. 5852/-. The matrimonial Court awarded alimony of Rs. 800/- to Mamta Jaiswal per month as pendente lite alimony Rs. 400/- per month has been awarded to their daughter Ku. Diksha Jaiswal. Expenses necessary for litigation has been awarded to the tune of Rs. 1500/-. The matrimonial Court has directed Rajesh Jaiswal to pay travelling expenses to Mamta Jaiswal whenever she attends Court for hearing of the matrimonial petition pending between them. Matrimonial petition has been filed by husband Rajesh Jaiswal for getting divorce from Mamta Jaiswal on the ground of cruelty. This revision petition arises on account of rejection of the prayer made by Mamta Jaiswal when she prayed that she be awarded the travelling expenses of one adult attendant who is to come with her for attending matrimonial Court.

2. Shri S.K. Nigam, pointed out that the petition is mixed natured because if at all it is touching provisions of Section 26 of Hindu Marriage Act, 1955 (hereinafter referred to as Act for convenience) then that has to be filed within a month. Shri Mev clarified that it is a revision petition mainly meant for challenging pendente lite alimony payable by the husband in view of Section 24 of the Act. He pointed out the calculations of days in obtaining the certified copies of the impugned order. In view of that, it is hereby declared that this revision petition is within limitation, entertainable, keeping in view the spirit of the Act and Section 24 of it.

3. A wife is entitled to get pendente lite alimony from the husband in view of provisions of Section 24 of the Act if she happens to be a person who has no independent income sufficient for her to support and to make necessary expenses of the proceedings. The present petitioner, the wife, Mamta Jaiswal has made a prayer that she should be paid travelling expenses of one adult member of her family who would be coming to matrimonial Court at Indore as her

attendant. Therefore, the question arises firstly, whether a woman having such qualifications and once upon a time sufficient income is entitled to claim pendente lite alimony from her husband in a matrimonial petition which has been filed against her for divorce on the ground of cruelty. Secondly, whether such a woman is entitled to get the expenses reimbursed from her husband if she brings one adult attendant alongwith her for attending the matrimonial Court from the place where she resides or a distant place.

4. In the present case there has been debate between the spouses about their respective income. The husband Rajesh has averred that Mamta is still serving and earning a salary which is sufficient enough to allow her to support herself. Wife Mamta is contending that she is not in service presently. Wife Mamta is contending that Rajesh, the husband is having salary of Rs. 5852/- per month. Husband Rajesh is contending that Rs.2067/- out his salary, are deducted towards instalment of repayment of house loan. He has contended that Rs. 1000/- are spent in his to and fro transport from Indore to Pithampur. He has also detailed by contending that Rs. 200/- are being spent for the medicines for his ailing father. And, lastly, he has contended that by taking into consideration these deductions a meager amount remains avialable for his expenditure.

5. It has been submitted that Mamta Jaiswal was getting Rs. 2000/- as salary in the year 1994 and she has been removed from the job of lecturer. No further details are available at this stage. Thus, the point is in an arena of counter allegations of these fighting spouses who are eager to peck each other.

6. In view of this, the question arises as to in what way Section 24 of the Act has to be interpreted. Whether a spouse who has capacity of earning but chooses to remain idle, should be permitted to saddle other spouse with his or her expenditure ? Whether such spouse should be permitted to get pendente life alimony at higher rate from other spouse in such condition ?

According to me, Section 24 has been enacted for the purpose of providing a monetary assistance to such spouse who is incapable of supporting himself or herself in spite of sincere efforts made by him or herself. A spouse who is well qualified to get the service immediately with less efforts is not expected to remain idle to squeeze out, to milk out the other spouse by relieving him of his or her own purse by a cut in the nature of pendente life alimony. The law does not expect the increasing number of such idle persons who by remaining in the arena of legal battles, try to squeeze out the adversory by implementing the provisions of law suitable to their purpose. In the present case Mamta Jaiswal is a well qualified woman possessing qualification like M. Sc. M.C. M.Ed. Till 1994 she was serving in Gulamnabi Azad Education College. It impliedly means that she was possessing sufficient experience. How such a lady can remain without service ? It really puts a big question which is to be answered by Mamta Jaiswal with sufficient congent and believable evidence by proving that in spite of sufficient efforts made by her, she was not able to get service and, therefore, she is unable to support herself. A lady who is fighting matrimonial petition filed for divorce, can not be permitted to sit idle and to put her burden on the husband for demanding pendente lite alimony from him during pendency of such matrimonial petition. Section 24 is not meant for creating an army of such idle persons who would be sitting idle waiting for a ‘dole’ to be awarded by her husband who has got a grievance against her and who has gone to the Court for seeking a relief against her. The case may be vice-versa also. If a husband well qualified, sufficient enough to earn, sits idle and puts his burden on the wife and waits for a ‘dole’ to be awarded by remaining entangled in litigation. That is also not permissible. The law does not help indolents as well idles so also does not want an army of self made lazy idles. Everyone has to earn for the purpose of maintenance of himself or herself, atleast, has to make sincere efforts in that direction. If this criteria is not applied, if this attitude is not adopted, there would be a tendency growing amongst such litigants to prolong such litigation and to milk out the adversory who happens to be a spouse, once dear but far away after an emerging of litigation. If such army is permitted to remain in existence, there would be no sincere efforts of amicable settlements because the lazy spouse would be very happy to fight and frustrate the efforts of amicable settlement because he would be reaping the money in the nature of pendente lite alimony, and would prefer to be happy in remaining idle and not bothering himself or herself for any activity to support and maintain himself or herself. That can not he treated to he aim, goal of Section 24.

It is indirectly against healthyness of the society. It has enacted for needy persons who in spite of sincere efforts and sufficient efforts arc unable to support and maintain themselves and arc required to fight out the litigation jeopardising their hard earned income by toiling working hours.

7. In the present case, wife Mamta Jaiswal, has been awarded Rs.800/-per month as pendente lite alimony and has been awarded the relief of being reimbursed from husband whenever she makes a trip to Indore from Pusad, Dist. Yeotmal for attending matrimonial Court for date of hearing. She is well qualified woman once upon time obviously serving as lecturer in Education College. How she can be equated with a gullible woman of village ?

Needless to point out that a woman who is educated herself with Master’s Degree in Science, Masters Degree in Education, would not feel herself alone in travelling from Pusad to Indore, when atleast a bus service is available as mode of transport. The submission made on behalf of Mamta, the wife, is not palatable and digestable. This smells of oblique intention of putting extra financial burden on the husband. Such attempts are to be discouraged.

8. In fact, well qualified spouses desirous of remaining idle, not making efforts for the purpose of finding out a source of livelihood, have to be discouraged, if the society wants to progress. The spouses who are quarrelling and coming to the Court in respect of matrimonial disputes, have to be guided for the purpose of amicable settlement as early as possible and, therefore, grant of luxurious, excessive facilities by way of pendente lite alimony and extra expenditure has to be discouraged. Even then, if the spouses do not think of amicable settlement, the matrimonial Courts should dispose of the matrimonial petitions as early as possible. The matrimonial Courts have to keep it in mind that the quarrels between the spouses create dangerous impact on minds of their offsprings of such wedlocks. The offsprings do not understand as to where they should see ? towards father or towards mother ? By seeing them both fighting, making allegations against each other, they get bewildered. Such bewilderedness and loss of affection of parents is likely to create a trauma on their minds and brains.This frustration amongst children of tender ages is likely to create complications which would ruin their future. They can not be exposed to such danger on account of such fighting parents.


Wife needs to prove that she is not working December 1, 2010Fighting Legal Terror Leave a comment

IN THE HIGH COURT OF DELHI AT NEW DELHISUBJECT : Hindu Marriage ActDate of Reserve: 28.7.2008Date of Order: 5.9.2008CM(M) No. 1534/2006Parnab Kumar Chakarborthy … PetitionerThrough: Mr. (Dr.) J.C.Vashist, AdvocateVersus

Ruma Chakarborthy … RespondentsThrough: Ms. Manali Singhal, AdvocateJUSTICE SHIV NARAYAN DHINGRAJUDGMENT

The petitioner is aggrieved by an order dated 22.8.2006 passed by thelearned ADJ on application under Section 24 of the Hindu Marriage Act aswell as on application under Section 151 of the husband making a prayer forgiving visitation rights to him to visit his daughter.2. The learned ADJ after considering the gross salary of the husband,working as Shift In-charge, as Rs.6625/-, fixed a maintenance of Rs.2,000/-per month for wife and daughter to be paid from the date of moving of theapplication and also fixed Rs.5,000/- as litigation charges. He directed thepetitioner to clear arrears within a period of five months and to pay currentmaintenance by 10th day of each succeeding month w.e.f. September, 2006and ordered that in case of default of payment of the current monthlymaintenance, the husband would have to pay 20% extra of such maintenanceamount. On visitation rights, the learned ADJ observed that he had called theminor daughter, who did not respond positively towards the father andstarted crying in the Court. He therefore, considered that no fruitful purposewould be served by granting visitation rights since the child was not havingpositive response to the father.3. The petitioner in his petition has stated that the learned Court has takeninto account his gross salary while his net salary after deduction was hardlyRs.5,000/-. He had to maintain two houses. He was working in Bhiwadi inRajasthan as Shift In charge, his daughter from the earlier deceased wife wasliving at his ancestral house at Rai Barelli with his ailing mother. Thus, he

had to maintain two units; one at Rai Barelli and other at Rajasthan. He alsopleaded that the learned ADJ had not taken into account the fact that thewife was a professional beautician, who had done diploma in beauty-cultureand hair dressing and in the bio data supplied to him at the time of marriage,it was stated that she was a freelance beautician doing the work ofbeautician. He further stated that the account of expenditure given by thewife would show that she was living in luxury, which was not possible outof the meager income of her father, who was a retired Naval Officer andsince she was qualified and was spending a lot so, there was a presumptionthat she was earning and she had not come to the Court with clean hands.4. A perusal of salary certificate of the petitioner would show that while hisgross salary was Rs.6625/- deductions of EPF of Rs.636/-, ESI- Rs.116/-, aH.Ded. of Rs.500/- were being made. He also shown deduction of Mess ofRs.496/- . I think deduction of Mess and H. Ded. were not statutorydeductions so he was entitled to only statutory deductions, his net salarywould be a little less than Rs.6,000/-. The bio data of the wife given at thetime of marriage to the petitioner shows that she had done two years diplomain Beauty Care and Hair Dressing from South Delhi Polytechnic in 1stDivision and she was a freelance beautician. It was stated that she had herown business and got good income. The Trial Court observed that thehusband had failed to establish that the wife was running beauty parlour.However, the Trial Court ignored the fact that she was a freelance beauticianmeaning thereby that she was visiting the houses of her clients. In her biodata,it was admitted she was having good business. The onus was on her toshow as to when she closed down the business. She did not discharge thisburden. I consider that the wife was able to maintain herself and was notentitled to any maintenance however the husband had responsibility ofmaintaining the daughter. The husband had another daughter to maintain. Nodoubt he is working in Rajasthan and his daughter is living in his ancestralhouse at Rai Barelli. If his net income is divided in four parts and two partsare left to him and one part each to his daughters, I consider that a monthlymaintenance of Rs.1500/- would be proper maintenance. The order of thetrial Court is modified accordingly. The petitioner shall pay maintenance ofRs.1500/- per month during the pendency of the petition filed for divorcefrom the date of application, to the wife for maintenance of the daughter.However, the condition put by the learned ADJ of payment of 20% penaltyis unjustified. An order of maintenance under Section 24 of the HM Act isan executable order and if the maintenance is not paid, the defence of thehusband can be struck off and execution can be carried out. In case of latepayment, the wife would be entitled to a reasonable interest over the unpaidamount and in my view 10% interest is a reasonable interest on the unpaidamount for the unpaid period.5. The petition for divorce has been filed by the wife. The husband has infact filed a petition under Section 9 to ask the wife to join him. I considerthat in such a situation the husband is not liable to pay litigation expenses tothe wife.6. As far as visitation rights of the father with the child are concerned, Iconsider that there is no necessity of interference with the order of thelearned ADJ. It is petitioner’s own case that right from the birth, the childhas been living with the mother. The interaction of the child with the fatherhas been minimal. Under these circumstances, I consider that the trial Courtrightly arrived at a conclusion that it would not be in the welfare of the childto compel her to see her father against her wishes. The petition is allowed tothe above extent.Sd/-SHIV NARAYAN DHINGRA, J.


Wife eligible for free legal aid – no littigation expenses December 1, 2010Fighting Legal Terror 1 comment

IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

Civil Revision Application No. 1665 of 1997

Decided On: 09.12.1999

Appellants: Sangitaben Rasiklal JaiswalVs.Respondent: Sanjaykumar Ratilal JaiswalHon’ble Judges:S.K. Keshote, J.Counsels:For Appellant/Petitione r/Plaintiff: Jitendra Malkan, Adv.For Respondents/ Defendant: Megha Jani, Adv.

Subject: Family

Catch Words:

Acts/Rules/Orders:Constitution of IndiaDisposition:Petition dismissedCase Note:

Family – maintenance – Section 24 of Hindu Marriage Act, 1956 and Legal Services Authorities Act, 1987 – revision application filed for enhancement of allowance of maintenance, Maruti car with driver, expenses of petrol, flat at Vadodara and Rs. 23350 as costs of present litigation and further costs of litigation – not fair for wife to spend luxuriously in litigation and burden husband having pay package of Rs. 6116.50 per month – claim likely with object to harass husband – wife entitled to free legal aid after enactment of Act of 1987 – revision application dismissed.

JUDGMENT

S.K. Keshote, J.

1. The wife, the petitioner herein, and the respondent in Hindu Marriage Petition No. 243 of 1996 (Old No. 111 of 1996) which was again renumbered as H.M.P. No. 209 of 1997 pending in the court of Civil Judge (S.D.) Mahesana challenges in this civil revision application the order passed by the court aforesaid below Ex. 5 dated 29th September, 1997 under which the court has granted her the interim maintenance at the rate of Rs.2000/= p.m. w.e.f. 5-10-1996 and Rs.1500/= towards special costs of the application.

2. The husband respondent filed H.M.P. for divorce at Mahesana. It is not in dispute that the respondent husband is an employee and residing in territorial jurisdiction of the city of Baroda and marriage of the parties was solemnised at Hotel Surya Palace, a three star hotel in the city of Baroda on 9-5-1992 but still he has chosen to file this H.M.P. at Mahesana which prima-facie appears to be a deliberate attempt to harass this lady who is stationed at Vanadra, Taluka Dabhoi Dist, Vadodara with her widow mother.

3. On receipt of summons of this petition, the petitioner filed an application under section 24 of the Hindu Marriage Act, 1956 at Ex.9 and therein she prayed for Rs.20,000/= p.m. as allowance of maintenance from the date of application, a Maruti car with Driver and also the husband to bear the costs of petrol and furnished flat in a good locality in the city of Vadodara admeasuring 800 sq. ft. and Rs.23,350/= towards costs of litigation and such other and further costs of litigation which may be incurred by the petitioner. Under the impugned order, as stated earlier, the court has awarded the allowance of maintenance at the rate of Rs.2000/= p.m. and special costs of Rs.1500/=. It is not clear from the order of the learned trial court whether this Rs.1500/= awarded as special costs of application under section 24 of the Hindu Marriage Act to the wife or it is total amount which has been awarded towards the litigation expenses.

4. The respondent – husband is serving with Indian Petrochemicals Corporation Ltd. and his salary certificate is on the record of this civil revision application dated 30th January, 1997. His gross salary is of Rs.6116-50.

5. This revision application is filed for enhancement of the allowance of maintenance, a Maruti Car with driver, expenses of petrol, flat at Vadodara and Rs.23,350/= as costs of this litigation and further costs of litigation.

6. Taking into consideration the pay package of the husband of the petitioner i.e. Rs.6116-50, this amount of Rs.2000/= awarded is just and reasonable amount. Normal rule is of awarding maintenance pendete-lite 1/3rd of the net income of the husband arrived at after taking into consideration only statutory permissible deductions from the salary. In this certificate, the employer has not given out what deductions are being made from the salary. So it has to be taken to be a net salary of the husband – respondent and the amount of allowance of maintenance granted per month of Rs.2000/= to the petitioner is a reasonable sum.

7. However, the enhancement has been claimed on the ground that the husband is possessing the properties (i) agricultural lands details of which are given in para-3 of the additional affidavit in rejoinder, (ii) many more other ancestral properties and valuable movable properties. In this affidavit, it is further stated that the present market value of the properties as described therein is estimated to be more than Rs.50 to 60 crores and reference has been made to the fact that recently properties bearing R.S. NO. 1500, 1501 and 1528 were placed in market for sale. On information, the petitioner stated that the said properties could fetch an offer of Rs.22 crores. Then it is stated that she reliably learnt that the husband respondent has also enter into an agreement for sale of abovesaid three properties and received an amount of Rs.2.2 crores as consideration for agreement to sale.

8. Merely because the husband is possessing valuable movable and immovable properties it is hardly of any relevance in the matter for grant of temporary maintenance. It is understandable if the husband is having regular income from the properties then it may be taken into consideration. However, as per the case of the petitioner herself, these are all ancestral properties and at this stage, it is difficult to find out what is the ultimate share of the husband – respondent therein. The petitioner has not given out what regular income per month husband is getting from these properties. The valuation of properties irrespective of the fact whether what is stated is correct or not, is not sufficient to take that what claim has been made for maintenance and other things has to be accepted. Reference of agreement to sale of properties is also difficult to accept as for which also there is no evidence on the record. To reach to a reasonable sum of maintenance to be awarded to the wife on her application under section 24 of the Hindu Marriage Act what income regularly per month the husband is having has to be considered. He is in employment and accordingly his salary is taken into consideration and the amount of interim maintenance awarded can not be interfered with. There is no scope whatsoever on the basis of the material produced on the record for enhancement to be made in the amount of interim maintenance granted to the wife by the trial court under the impugned order. So to this extent the claim of the petitioner is not acceptable.

9. The further claim made for providing a Maruti Car with chauffeur and further direction to husband to bear the expenses of petrol etc. it is suffice to say that such a claim may not fall under section 24 of the Act, 1956. It is no more the maintenance but may be a luxury in the facts of this case and that can not be taken into consideration.

10. The claim for furnished flat at Vadodara is also difficult to accept what to say to be granted under the provisions of section 24 of the Hindu Marriage Act. It is understandable if ultimately the marriage of the parties is dissolved by a decree of divorce, while considering the matter for grant of permanent alimony under section 25 of the Act, 1956, the court may consider all these aspects but not at this stage. The claim of the petitioner for these two things is also difficult to be accepted.

11. Now I may advert to the claim of the petitioner for litigation expenses. This claim has to be dealt with in two parts. First is the claim which has been made of Rs.23,350/= and second the claim for further expenses. The rejoinder affidavit has given shocking facts and really after going through the contents of this affidavit, it touches the conscience of the court that how the lady who has no source of income whatsoever and entitled for free legal aid under the Legal Services Authorities Act, 1987 has been exploited by an advocate. The shocking facts are of the claims for coming to Mahesana by the advocate, the claim for professional fees of an advocate per appearance, professional fees for drafting of reply to the original application including clerical and typing expenses and affidavit in rejoinder to the advocate, Mrs. Nayna V. Malkan, professional fees of drafting application for maintenance, professional fees for drafting affidavit in rejoinder, expenses incurred for obtaining property documents, car expenses and other expenses of appearance. I cannot do better than to reproduce all these items in the judgment.

Rs.250/- Visit by Shri Anmol Sharon (Lumsum amount, inclusive of Autorickshaw, Bus Fare To &Fro AbdMSN Tea, Snacks his stipend Dt. 28-11-96.

Rs.250/- Visit By Shri Anmol Sharon inclusive of a (lumsum amount inclusive of Autorickshaw, Bus fare, To & Fro Abd-MSN Tea, Snacks inclusive his stipend Dt. 31-12-96)

Rs.1500/- My visit with my Mother and Lawyer from Vanadara to Mahesana in a private Car. Dt. 17-1-97.

Rs.500/- Tea, Snacks, Lunch for 5 persons.

Rs.5500/- Professional Fees of Jitendra Malkan for his appearance on that date.

Rs.3500/- Professional fees for drafting reply to original application including clerical and typing expenses. Affidavit in rejoinder to Advocate Nayna V. Malkan.

Rs.1500/- Professional fees for drafting application for maintenance u/s. 24 of the Act with clerical and typing expenses to be paid to Mrs. Nayna V. Malkan.

Rs.1500/- Professional fees drafting affidavit in rejoinder of reply to application u/s.24 of the Act to Nayna V. Malkan.

Rs.1000/- Expenses incurred for obtaining property documents.

Rs.1500/- Car expenses for my visit with my mother and Lawyer from Vanadhara to Mahesana in a private car on Dt. 24-2-97.

Rs.500/- Tea, Snacks, Lunch for 5 persons.

Rs.5500/- Professional fees of Jitendra Malkan for his appearance on Dt. 24-2-97.

Rs.350/- Professional fees to Advocate Ms. Prerana Vakharia for her visit to Mahesana (including and snacks on 7-2-97).

12. The petitioner may not know that she is eligible for free legal aid but the advocate and the Presiding Officer of the court in which the matter was pending are suppose to know for this entitlement of this litigant. A litigant who has been ordered to be granted Rs.2000/= per month as maintenance, how she will bear out all these expenses and wherefrom she has borne out all these expenses and how in future she will borne out these expenses is a matter of realisation. It is very very difficult for this lady and equally very harsh on the part of the advocate to put burden of heavy litigation expenses over this poor lady more so when she is entitled for free legal aid. This is not the only case but I am seeing cases after cases where very sad stories are being told by the litigants of this class either in the court or in the Chamber when the matters are being placed for conciliation proceedings. There seems to be something wrong somewhere in our efforts to make known to this class of litigants for their right to get free legal aid. Though under section 24 of the Hindu Marriage Act, the husband is under legal obligation to bear out the expenses of litigation of the wife but that is the Act of the year 1956. After this Act of 1987 where this class of litigants are entitled for free legal aid still a husband who belongs to lower middle class may be saddled with all these costs or a question does arise whether he is in a position to bear out such a luxurious litigation expenses of the wife. Now after this Act of 1987 possibly and legitimately the husband may not be made responsible for the litigation expenses of the wife. However, this is not the matter to be considered at this stage and decided in this case. I am only concerned with the shocking facts which have come on record that how this class of litigants are being exploited. I find fault with the system of which I am also the part. It is unfortunate that despite of having all these legal literacy camps, Lok Adalats etc. we are unable to give a message and make known to this class of litigants that they are entitled for free legal services. Out of the total population of the country, very nominal percentage thereof are involved in litigations. So what is important is that there must be some system, method or modality to make known to this class of litigants about their right of free legal aid at the State expenses. It is not unknown and what our system is that on receipt of summons/notices of proceedings of the court, a litigant will do one thing to approach to an advocate. So the first duty falls on the advocate who has been approached by this class of litigant and more so a class of litigant who is eligible for free legal services under section 12 of the Act, 1987 to make her known of the fact that she may not engage him as she is entitled for free legal aid and may approach to the concerned authorities. This is required to be done at the grass root level and where the two important persons to give this message or to make known of this right to this class of litigants are advocate and the judicial officer concerned. If the advocate, a professional, does not give this information to the litigant of this category or make know him/her of this right then it comes on the court on the first hearing of the case to make known him/her of their entitlement of free legal aid. If such category of litigant appears through an advocate,

it is the duty of the court also to ascertain and to make know to the litigant that he/she is entitled for free legal aid. If it has been done then only our these programmes will be successful and beneficiaries thereof will be benefitted. The courts know this but still these litigants are not made known of their right of free legal aid. All the litigants of this class are represented in the courts by advocates. I had an occasion to talk to many of the litigants of this class in the court where they have narrated very sad stories. In one case, a lady litigant – a wife, on being asked by the court stated that his advocate is very good advocate and has not demanded anything from her and has not charged anything from her of the litigation. That was the stage only where application under section 24 of the Act was decided. She has paid to him in installments about Rs.6000/= towards fee. It is no doubt true that certain percentage of advocates are rendering free legal services in these matters but not substantial number.13. The justification given for claim of this heavy expenses of litigation is that the lady has to travel with some security from her village to Mahesana and it is the creation of husband himself. I find sufficient justification in the contention of the learned counsel for the petitioner that this attempt of husband to file petition at Mahesana though he himself resides near to Baroda and marriage was solemnised at Baroda is with the object to harass this lady. However, if that is so, I cannot do better than to remind the counsel for the petitioner of the provisions of section 24 of the Civil Procedure Code and if such an application is filed by the wife, the court will consider the same accordingly and there may be all possibility of accepting the prayer of the petitioner for transfer of this petition from Mahesana Court to Baroda court.14. Before parting with this judgment, it is to be stated that the advocate of the petitioner here in this court, or the advocate appearing for her in the Mahesana court as well as the Presiding Officer of the court concerned to make this lady know of her right of free legal aid so that there may not be any further expenses of litigation to be borne out by her. This judgment is dictated in English. I do not know whether this lady knows English or not. It is also difficult to ensure whether if she knows to read and understand English, whether the judgment will reach to her hands or not. It is a matter of concern of both the advocate and the court and I hope that the advocate being an officer of the court and the court will realise their responsibility and will see that in future she will not have to bear out the heavy expenses of litigation. It is also not fair for wife to spend luxuriously the amount in litigation and burden the husband whose total pay package is of Rs.6116-50p. m.. This claim may be with the object and purpose to harass the husband. Both the parties so long as their relation of husband and wife is tied up should take care of each other and to see that wife also minimises her expenses of litigation and more so when after the Act of 1987 she is entitled for free legal aid. From the order of the court, I find that the amount of Rs.1500/- awarded as special costs may not be final figure of the amount of expenses of litigation. It is still open to the court to reconsider the matter but at the same time the court will keep in mind that the petitioner- wife is entitled for free legal services. As a result of the aforesaid discussion, I do not find any merits in this claim of the petitioner for sum of Rs.23,350/=. So far as further litigation expenses are concerned, as stated earlier, it is the concern of the court below.

15. As a result, of the aforesaid discussion, this revision application fails and the same is dismissed. Rule discharged. Interim relief, if any, granted by this court stands vacated. In this court also, the petitioner was entitled for free legal aid but she could not get this facility either because of unawareness of her right or that her advocate has not made known her of this right, the innocent husband cannot be saddled with the costs of this revision application. Hence, no order as to costs


Earning wife is not eligible for maintenance or litigation expenses December 1, 2010Fighting Legal Terror Leave a comment

(2003) 1 MLJ 752 (Mad)

IN THE HIGH COURT OF JUDICATURE AT MADRAS

Present : P.Sathasivam, J.

Case Number(s) : C.R.P.(PD) No.1929 of 2002 and C.M.P. No.16264 of2002Judgement Date : Friday 21st of February 2003

Manokaran alias Ramamoorthy …..Appellant(s)VersusM.Devaki …..Respondent(s)

Hindu Marriage Act (XXV of 1955), Sec.24 — Petition for divorcepending — Wife filing a petition for grant of interim maintenanceand litigation expenses — The party making the claim should not havesufficient independent income.The provision would show that for grant of maintenance pendentelite,the party should not have sufficient independent income forher/his support. In other words, if it is found that the applicanthas sufficient income for his/her support, no amount can be allowedas maintenance pendente liteas per Sec.24 of the Act. [Para.5] `Under Sec.24 of the Hindu Marriage Act, maintenance pendentelite can be awarded only if the party asking for maintenance showshe/she has no sufficient independent income’.Cases ReferredKumaresan v. Aswathi : [2002] 2 M.L.J. 760N.Manokaran, for Petitioner.

V.Shivakumar, for P.B.Ramanujam, for Respondent.

The Court made the following

ORDER: Aggrieved by the order of the Principal Family Court, Madrasdated 25.7.2002, made in I.A. No.1058 of 2001 in O.P. No.1310 of2000, granting interim maintenance at the rate of Rs.750 per monthand litigation expenses of Rs.1,500, the husband has preferred theabove revision under Art.227 of the Constitution.2. The petitioner/ husband has preferred the said O.P. for divorceunder Sec.13(1)(1a) and (1b) of the Hindu Marriage Act. Pending thesaid petition, the wife/ respondent herein has filed I.A. No.1058 of2001 claiming interim maintenance at the rate of Rs.2,000 per monthand Rs.5,000 towards litigation expenses under Sec.24 of the HinduMarriage Act. The said application was resisted by the husbandstating that she is working in a private concern and drawing asalary of Rs.4,500 per month. It is also stated that he is earningonly Rs.2,000 per month. Before the Family Court, salary certificateof the husband dated 10.6.2002 has been marked as Ex.R-1. Based onEx.R-1, after finding that he is earning Rs.70 per day by working inSenthil Auto Garage, the Family Court has concluded that the wife isentitled to interim maintenance at the rate of Rs.750 per month fromthe date of petition till the disposal of O.P. and also awardedRs.1,500 towards litigation expenses.3. The only question to be considered in this revision is whetherthe wife/ respondent herein has made out a case for interimmaintenance in terms of Sec.24 of the Hindu Marriage Act.4. Mr.N. Manokaran, learned counsel for the petitioner, afterdrawing my attention to Sec.24 of the said Act and the admission ofthe wife in the counter statement filed in the main petition viz.,O.P. No.1310 of 2000, would contend that since she is earningsizeable income and in view of the fact that the petitioner/ husbandis getting only Rs.2,000 per month, the Family Court has committedan error in granting interim maintenance and litigation expenses.5. There is no dispute that the petition has been filed by therespondent/ wife claiming maintenance pendente lite and expenses ofthe proceedings under Sec.24 of the Hindu Marriage Act. Section 24reads thus:“24. Maintenance pendente lite and expenses of proceedings: Where inany proceedings under this Act it appears to the Court that eitherthe wife or the husband, as the case may be, has no independent

income sufficient for her or his support and the necessary expensesof the proceeding, it may, on the application of the wife or thehusband, order the respondent to pay to the petitioner the expensesof the proceeding, and monthly during the proceeding such sum as,having regard to the petitioner’s own income and the income of therespondent, it may seem to the Court to be reasonable.”The above provision would show that for grant of maintenancependente lite, the party should not have sufficient independentincome for her/his support. In other words, if it is found that theapplicant has found sufficient income for his/her support, no amountcan be allowed as maintenance pendente lite as per Sec.24 of theAct. While construing the very same provision in similarcircumstance, A.S. Venkatachamoorthy, J., in Kumaresan v. Aswathi,(2002)2 M.L.J. 760 has arrived a similar conclusion. Now I shallconsider whether the respondent/wife has any independent incomewhich is sufficient for her survival and for the proceedings. Inpara 10 of the counter statement filed by the wife in O.P. No.1310of 2000, she herself admitted that,…..Now the respondent (wife) had got her present job in privatebody and running her life with the salary and staying with herbrother…”. The above statement shows that she is employed in aprivate concern, getting salary and staying with her brother. In theapplication for interim maintenance, the husband has filed a counteraffidavit wherein he has specifically stated that his wife isdrawing a salary of Rs.4,500 from a private concern. In para 5 ofthe counter affidavit it is stated that,“5. The respondent denies all the allegations in para 5 and put thepetitioner strict proof of the same. The averment about I amliberally suffering without financial assistants is put to strictproof since this petitioner is working in the organization KumariNeruvanam at No.40, Venkat Narayanan Road, T.Nagar, Chennai-600 017,and drawing a salary of Rs.4,500 she also disclosed this before theAll Women Police Station, Thousand Lights,and this petitioner alsoadmitted in her counter statement that she is working in private andrunning her life. But contradictory to her statement in counterstatement now this petitioner come forward with a plea that she iswithout financial assistance. This petitioner is working as typistand main organizer for a programme in Neingalum Pachalar Agalam aprogramme telecaste in Raj T.V. during Sunday 8.00 a.m., from hercompany Kumari Neruvanam. The averment about that this respondent isowner of the “Venkataswari Turning Works” at Muthumariamman KoilStreet, Anna Nagar, Chennai-600 040 is put to strict proof sincethis respondent is not the owner of the said company and A.Loganathan is the owner of the said Turning works and thisrespondent is working in Senthil Auto Garage at Annai Sathya Nagar,Anna Nagar (East) Chennai-600 102, and drawing a salary of Rs.2,000and this respondent need not to give any monetary assistance to thepetitioner for her claim.”The above averment shows that the petitioner herein husband isworking in Senthil Auto Garage, Annai Sathya Nagar, Chennai-102 anddrawing a salary of Rs.2,000 per month. Likewise, it is also seenthat the respondent herein wife is working in Raj T.V. and drawing asalary of Rs.4,500. Though the said aspect has not beensubstantiated, I have already referred to the admission of therespondent herein in her counter statement filed in the main O.P.No.1310 of 2000 wherein she admitted that she secured a private job

and is getting salary and staying with her brother. On the otherhand, it is established particularly from Ex. R-1, the petitionerherein is getting only Rs.70 per day or Rs.2,000 per month byworking in Senthil Auto Garage. I have already referred to thelanguage used in Sec.24 which makes it clear that for grant ofmaintenance pendente lite the party should not have sufficientindependent income for her support. In the light of the materialsavailable, particularly the admitted case of the respondent/ wife,she is employed in a private Satelite T.V. and earning for herlivelihood staying with her brother, it cannot be construed that sheis not having sufficient independent income. The Family Court lostits sight to consider the above material aspect.6. In the light of what is stated above, the impugned order of thePrincipal Family Court dated 25.7.2002, made in I.A. No.1058 of 2001in O.P. No.1310 of 2000 is set aside and the civil revision petitionis allowed. No costs. It is made clear that pending the divorceproceedings at any point of time if the applicant/ wife establishesthat she has no sufficient independent income for her support, it isopen to her to claim maintenance pendente lite. Consequently, C.M.P.No.16264 of 2002 is closed.R.S. —– Petition allowed.


Not ready to stay with husband : No maintenance – Patna High Court December 1, 2010Fighting Legal Terror Leave a comment

Section 24 in The Hindu Marriage Act, 1955The Hindu Marriage Act, 1955Sunita Sharma vs Upendra Kumar Sharma on 3 March, 2008ORDER

1. This Civil Revision application is directed against the order dated23-7-1996 passed by the Principal Judge, Family Court. Patna, in MatrimonialCase No. 46 of 1995, whereby and whereunder the Court below rejected theapplication filed by the petitioner under Section24of the Hindu Marriage Act(hereinafter to be referred to as ‘the Act’ for short) claiming alimony pendentelite for her maintenance and for the maintenance of minor son. The plaintiff-opposite party filed Matrimonial Case No. 46 of 1995 against the petitioner fora decree for restitution of conjugal rights and for a direction to thepetitioner to return to her matrimonial home and on failure of the petitioner,the marriage may be dissolved by a decree of divorce.2. The suit was contested by the petitioner by filing written statementstating, inter alia, that she is willing to live with her husband providedproper security is given to her as she was ill-treated by the plaintiff-oppositeparty and his parents, while she was living with the opposite party. During thependency of the aforesaid case, the petitioner filed a petition dated 3-6-1996praying for alimony pendente file which application was opposed by theplaintiff-opposite party on the ground that he is a student and has no source ofincome. The Court below disposed of the application by the impugned order dated23-7-1996. The Court below came to the finding that there is no evidence onbehalf of the plaintiff-opposite party to prima facie prove that the petitioner-wife is working as teacher in the school and she has no source of independentincome and she is fully dependent for her maintenance on her parents. The Courtbelow further came to the finding that the plaintiff-opposite party has also noindependent source of income and he is still prosecuting his studies anddependent on his father. On that ground that petition filed by the petitionerwas rejected. So far the maintenance to the minor child is concerned, the Court

below held that since no separate application claiming maintenance of the childwas filed, therefore, no order can be passed. Hence, this Civil revisionapplication.3. Mr. S. K. Verma, learned senior counsel appearing on behalf of thepetitioner, assailed the impugned order as being illegal and wholly withoutjurisdiction. Learned counsel submitted that the Court below has committed graveerror of law insofar, as it held that the plaintiff-opposite party having noindependent source of income is not liabte to pay maintenance to the wifeaccording to the learned counsel, in no event, the husband can be exoneratedfrom his liability to maintain his wife and minor children. He put reliance onthe decisions rendered in the cases (i) Smt. Urmila Devi v Hari Prakash Bansal,AIR 1988 Punj & Har 84, (ii) Gurmali Singh v. Bhuchari, AIR 1980 Punj & Har120. Learned counsel further submitted that the Court below has failed toappreciate the settle law that no separate application with regard tomaintenance of child is required and even on the basis of affidavit, such ordercan be passed. In support of his contention, learned counsel referred to thedecisions in the cases of (i) Manoj Kumar Jaiswal v. Smt. Lila Jaiswal, AIR 1987Cal 230 and (ii) Durga Pada Banerjee v. Smt. Sushmitta Banerjee. (1991) 2 PatLJR 215. Learned counsel lastly submitted that it was not disputed that theplaintiff husband is able person capable of working and in such event, he isbound to maintain the wife and minor children. Learned counsel referred to thedecisions in the cases, reported in.( 1995) 2 Pat LJ Reports, 199 and in 1997Patna Law Reports 129. On the other hand, Mr. Farooque Ahmad Khan, learnedcounsel for the husband-opposite party submitted that the main suit filed by theplaintiff opposite party has been disposed of in terms of the judgment dated13th June 996 and a decree for restitution of conjugal rights has been passed.The learned counsel submitted that even-after the decree the petitioner-wife didnot resume her conjugal life. The Court below decided all the issues in favourof the plaintiff-husband. According to the learned counsel, therefore, thequestion of payment of maintenance to the wife does not arise and by reason ofpassing of the decree, the application became infructuous. Learned counselsubmitted that when the main suit stood disposed of, then the application underSection 24 of the Act does not survive. In this connection, the learned counselrelied upon the decision in the case of Nirmala Devi v. Ramdas. AIR 1973 Punjand Har48. Learned counsel then submitted that admittedly the opposite parly-husband is studying and he has not finished his study. Learned counsel submittedthat it is not a case where the husband is able to work, but is not working;rather it is a case where he has been studying and for doing work, he will haveto leave his studies. According to the learned counsel. therefore, theprinciples of the law, can vassed by the learned counsel for the petitioner doesnot apply. In support of his contention, he has cited two decisions, one ofAllahabad High Court in the case, of Smt. Preeti Archana Sharma. v. RavindraKumar Sharma, AIR I979. All 29 and another of Mysore High Court in the case ofN. Subramanyam v. M. G. Saraswathi, AIR 1964 Mysore 38.4. Before appreciating the rival contentions made by the learned counsel forthe parties, it would be useful too took into the provision of Section 24 of theHindu Marriage Act which is quoted below:–’24. Maintenance, pendente lite and expenses of proceedings: — Where inany proceeding under this Act is appears to the Court that either the wife orthe husband, as the case may be, has no independent income sufficient for her orhis support and the necessary expenses of the proceeding, it may on theapplication of the wife or the husband, order the respondent to pay thepetitioner the expenses of the proceeding such sum as, having: regard to thepetitioner’s own income and the income of the respondent, it may seem to theCourt to be reasonable.”

5. From the aforesaid provision, it is manifest that the object of thissection is to enable the husband or wife, as the case may be, who has noindependent income sufficient for his or her maintenance or for him the expensesof any legal proceeding under the Act to obtain maintenance and the expensespendente lite, so that the proceeding may be conducted without any hardship.6. I wish to first discuss the point raised by Mr. Farooque Ahmad Khanlearned counsel for the opposite party-husband that by reason of the disposed ofthe main suit, the petition claiming maintenance pcndente lite and, legalexpenses does not survive and has become infructuous. The learned counselsubmitted that the plaintiff opposite party filed the suit for decree ofrestitution of conjugal right and in the event of failure on the part of thepetitioner-wife to, resume conjugal life, marriage was dissolved by decree ofdivorce and in the concilialion proceeding the petitioner refused to live withhim on the ground that her husband was not in service. According to the learnedcounsel, the suit has been ultimately disposed of by the judgment whereby adecree for restitution of conjugal right has been passed in favour of theopposite party husband and the petitioner was directed to resume matrimonialcohabitation. Under sick circumstances, the petitioner would not be entitled topendente lite alimony and legal expenses. 1 have occasion to go through a copyof the judgment passed in the suit which was supplied by the counsel. Fromperusal of the judgment, it appears that the learned Principal Judge, FamilyCourt has considered the evidence in detail and came to the finding that therespondent wife failed to return back to her in-laws’ home despite repeatedrequests and even after legal notice. The reason for not coming back to herhusband’s house is obvious from the order passed by the Court below on the datewhen the suit was fixed for reconciliation. The order passed by the Court belowon 8-12-1995 is worth to be quoted hereunder:-“8-12-95. Since the suit is fixed for reconciliation and the parties arepresent, I took up reconciliation matter. The petitioner-husband is ready tokeep the respondent-wife but the latter says that since the petitioner is notdoing any service, she does not want to live at her Sasural and that she willnot live with the petitioner until he does some job. The petitioner says that heis a student and the respondent should cooperate with him so that he mayprosecute, his study properly but this entreaty of the petitioner did not seemto have any effect on the respondent. It is, therefore, obvious that thereconciliation has failed.”7. From the aforesaid order, it is clear that since beginning, the petitionerwife was not ready to live with her husband as he is not doing any service andis having no independent income. The Court below while passing the impugnedorder held that the opposite party husband has no independent source of incomeand is still prosecuting his study and is dependent on his father. “It is truemat even the husband has no independent source of income or earning, but iscapable of earning being an able-bodied person lit enough to work is liable tomaintain his wife and cannot deny payment of maintenance pendente lite. But inmy considered opinion, in the facts and circumstances of the present case, thiscivil revision application is not fit to be allowed. As noticed above knowingfully well that the opposite party husband was prosecuting his study, themarriage was solemnized, but the petitioner refused to live in the matrimonialHouse on the ground that the opposite party husband is not doing any service. Itis also evident that the opposite party repeatedly requested the petitioner tolive with him in his parents house, but she refused to do so. Ultimately, theopposite party instituted the suit for restitution of conjugal right and thesuit was decreed, but even then the petitioner did not resume conjugal right. Insuch circumstances, the decisions upon which the petitioner put reliance doesnot apply.8. It is well settled that the allowance of temporary alimony is not regarded

as a matter of right, but is a matter within the judicious discretion of theCourt and this Court in revision interferes only when the discretion has beenperversely exercised by the Court below.9. Having regard to the facts and circumstances of the case, and particularlythe finding arrived at by the Court below while disposing of the suit finally, Ido not find any reason to interfere with the impugned order passed by the Courtbelow.10. This civil revision application is, accordingly, dismissed.


No maintenance to well qualified wife December 1, 2010Fighting Legal Terror 1 comment

IN THE COURT OF MS. MADHU JAIN : ADDL. DISTRICT JUDGE : ROHINI COURT : DELHI

M No. 28/07

Sh. Neeraj Aggarwal – PetitionerVs.Mrs. Veeka Aggarwal – RespondentORDER

1.. This is an order on application under Section 24 of Hindu Marriage Act filed by the applicant/ wife, respondent in the main case (hereinafter referred to as the applicant) against the non-applicant/ husband, petitioner in the main case (hereinafter referred to as the non-applicant) for grant of maintenance pendentelite and for litigation expenses.

2.. In the application it is stated that the applicant/ wife has no independent source of income and she is not given any kind of maintenance by the non-applicant/ husband to live her life properly and therefore she is facing much hardship in the life. The non-applicant/ husband has flatly refused to maintain her. The non-applicant/ husband is working in a private sector as a Senior Software Engineer HPC in STM Microelectronics Pvt. Ltd., Plot No.1 A, Knowledge Park-2 (near LG Gol Chakkar), Greater Noida and is earning about Rs. 80,000/-pm. He has no other liability and he is not discharging his responsibilities towards the applicant/ wife with ulterior motives to harass and humiliate the applicant/ wife. The applicant/ wife is the legally wedded wife of the non-applicant/ husband and, thus, being a husband, he is bound to maintain the applicant/ wife. The applicant/ wife is fully dependent on the mercy of her parents, who are having other liabilities also and she has no independent source of income to maintain herself. It is, therefore, prayed that the non-applicant/ husband be directed to pay a sum of Rs. 30,000/-pm as maintenance allowance pendentelite to the applicant/ wife and expenses of proceedings.

3.. The application has been contested by the non-applicant/ husband, who in his reply has stated that the applicant/wife is a well qualified graduate Engineer in the field of information Technology and just after the marriage she had joined the service of a private firm and was drawing a handsome salary as initially she was taking Rs. 5000/-pm. Now-a-days she is competent and qualified to earn thousands of rupees per month. She is a qualified trained engineer and she is self stand financially in all respects. The non-applicant/ husband has never neglected or refused to maintain her in any manner and she was dulymaintained during her stay in her matrimonial home. The non-applicant/ husband is still ready and willing to provide financial assistance or maintenance if required or needed by her for any purpose in any manner. It is not denied that the non-applicant/ husband is also a qualified engineer and is employed in Greater Noida, U.P. but the actual amount of monthly salary being drawn by him is Rs. 45,000/-pm. It is stated that he has to maintain his retired father and ailing, diabetic mother and old grandmother and also to treat his two married sisters and to look-after his younger unmarried under-education sister of marriageable age as his younger sister is doing B.Ed. from a regular college. He is also paying loan premiums and other household expenses. The applicant/ wife has herself deserted her matrimonial home without any threats or atrocities caused to her by her in-laws and she is not returning to her matrimonial home despite the petition for restitution of conjugal rights filed by the non-applicant/ husband. It is stated that the non-applicant/ husband is publicly and openly as well as warmly welcoming the applicant/ wife to her matrimonial home but she has started demanding maintenance sitting in her parental home to feed her greedy parents and selfish relatives instead of returning to her matrimonial home and to assist the non-applicant/ husband and her other in-laws in her matrimonial home at the time of need. It is stated that the conduct, attitude and nature of the applicant/ wife is of such type that she is not entitled for any maintenance. Further more, she has also filed a separate petition U/s

125Cr. P.C. for maintenance only with a view to get the non-applicant/ husband harassed in a criminal court. It is stated that the applicant/ wife is not a helpless or poor lady and she is not incapable to maintain herself as she is a well qualified engineer and is already an earning hand. She is handing over all her income to her parents. She does not require any monastery assistance from the non-applicant/ husband as she is already having a good bank balance in State Bank of Bikaner & Jaipur at Rohini, Sector-5, Delhi, bearing A/c No. 61005521399 and several other bank accounts also. She also has some immovable properties in her name. It is denied that she requires Rs. 30,000/- as maintenance and other charges as prayed. It is, therefore, prayed that the application be dismissed with heavy cost.4.. I have heard the Ld. Counsel for both the parties and have carefully perused the record.

5.. During the course of arguments it has not been denied by the Counsel for the applicant/ wife that the applicant/ wife herself is an engineer graduate in the field of Information Technology. Ld. Counsel for the applicant/ wife submitted that the applicant/ wife submitted that the applicant/ wife joined the job for some time after the marriage but thereafter due to the marital disputes she is not in a position to pursue her job and has left the same. In her entire application the applicant/ wife has no where stated that she is also an engineer graduate in the field of Information Technology and that she also joined the job after her marriage. Those seeking justice and equity from the Court must come to the court with clean hands. It seems that for obvious reasons and to extract money the applicant/ wife has not disclosed her true qualifications in the Court. The applicant/ wife is an engineer graduate and, therefore, can very well maintain herself and there is no need for her to depend upon the mercy of her parents or on the non-applicant/ husband. The purpose of Section 24 of H.M. Act is not to extract money from the other party and the court should not be a forum to extract the money or to blackmail the other party. In II (2000) DMC 170 titled as Mamta Jaiswal Vs. Rajesh Jaiswal, the Hon’ble Madhya Pradesh High Court has observed as under:-“Section 24 – Pendente Lite Alimony : Purpose of Enactment : Not meant for supporting idle (Qualified) spouses waiting for ‘Dole’ to be Awarded by her husband – Section 24 has been enacted for purpose of providing monetary assistance to such spouse who is incapable of supporting himself/ herself in spite of sincere efforts – Spouse well qualified to get service immediately with less efforts is not expected to remain idle to squeeze out his/her purse by cut in nature of pendent elite alimony – Wife well qualified woman possessing qualification like M.Sc., M.C. M.Ed – How can such a lady remain without service – lady who is fighting matrimonial petition filed for divorce, cannot be permitted to sit idle and put her burden on husband for demanding – pendente lite alimony from him during pendency of matrimonial petition.”6.. In I (2001) DMC 19 titled Sangitaben Rasiklal Jaiswal Vs. Sanjay Kumar Ratilal Jaiswal, Mehsana, the Hon’ble Gujarat High Court has held that the wife is entitled for Free Legal Aid and therefore, the Court should keep in mind that wife is entitled for free legal services also.

7.. In the present case the applicant/ wife is a well qualified engineer and, therefore, there is no need for her to sit idle at home waiting for the maintenance from the non-applicant/ husband. In the peculiar facts and circumstances of the case since the applicant/ wife is well qualified and, therefore, can earn handsome amount by working and there is no need for her to be financially dependent upon her parents or on the non-applicant/ husband, she is not entitled for any maintenance. While hearing arguments on the application it was ordered that the maintenance shall be granted to the wife till the disposal of the petition. This sentence in order sheet dated 27.08.2007 only means that the wife is entitled for the maintenance from the date of filing of the application till the disposal of the main petition and not thereafter. It no where reflects that the wife shall be entitled to maintenance I every case come what may.

8.. Therefore, in view of the above said discussion, the application U/s 24 Hindu Marriage Act of the applicant/ wife is dismissed. There shall be no orders as to cost. File be consigned to Record Room.

Announced in Open CourtDated : 19.09.2007Categories:Judgement

Husband cannot take shelter of the payment of the insurance policy and loan amount September 20, 2010Fighting Legal Terror 1 comment

IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH

Civil Revision No. 2877 of 2010

Date of Decision: September 17, 2010

Gurminder Singh.

Petitioner

Versus

Amrita Kaur

Respondent

CORAM: HON’BLE MR. JUSTICE ALOK SINGH

1. Whether reporters of local news papers may be Allowed to see judgment?

2. To be referred to reporters or not?

3. Whether the judgment should be reported in the Digest?

Present: Mr. Vishal Gupta, Advocate, for the petitioner.

Mr. Raman Mahajan, Advocate,

for the respondent.

Alok Singh, J.

Present petition is filed by the husband-petitioner challenging the order dated 08.04.2010 passed by the learned Additional District Judge, Mohali, thereby allowing the application moved by the wife-respondent under Section 24 of the Hindu Marriage Act, directing the husband-petitioner C.R.2877 of 2010 2 herein to pay Rs.15,000/- per month to the applicant-wife from the date of application as maintenance pendente-lite and also to pay Rs.6600/- towards litigation expenses. Learned counsel for the petitioner vehemently argued that although the gross salary of the petitioner- husband is Rs.30,000/- per month, however, after deductions of PPF, it comes to Rs.25,586/- per month and petitioner- husband is paying installments amounting to Rs.5450/- per month and is also paying rent of the accommodation to the tune of Rs.3,000/- per month and paying insurance premium amounting to Rs.4,000/- per month, hence, he is getting only Rs.12,500/- per month, thus, the petitioner husband is not in a position to pay Rs.15,000/- per month to the wife- respondent. It is further argued by the learned counsel for the petitioner that wife-respondent is a well educated lady and was earlier employed as Deputy Manager with HDFC Bank and was earning Rs.30,000/- per month and now also she is doing some private job earning handsome amount. It is further argued that the car purchased by the husband- petitioner from his savings i.e. Hyundai I-10 is with the respondent wife and is in her custody and she is illegally using the same and FDRs to the tune of Rs. three lacs drawn in the name of the respondent wife out of the amount withdrawn from the account of the petitioner, is in the custody of the wife.

C.R.2877 of 2010 3 Learned counsel for the respondent states that at present, wife-respondent is not doing any job and although FDRs of Rs.three lacs made by the petitioner is in the custody of the wife, however, it is the duty of the husband petitioner to pay maintenance as per the status of the family to the wife as well as to the minor child who is with the wife. Having considered totality of the circumstances and after taking consideration that there is a cut off PPF from the salary of the petitioner and he is paying the house rent, hence, I find that total income would be approximately Rs.22,000/- per month and the petitioner husband cannot take shelter of the payment of the insurance policy and loan amount. Considering the total facts and circumstances of the case, this Court feels that instead of Rs.15,000/- per month maintenance pendente-lite should be at the rate of Rs.12,000/- per month. The impugned order shall stand modified to that extent.

Petition shall stand disposed of accordingly. September 17, 2010 ( Alok Singh ) vkd Judge

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