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Maitenance under HMA24 cannot be denied on the ground that wife is below 18 years

Kolkata High Court (Appellete Side)
3349/2010 on 24 January, 2012
Author: Dipankar Dutta
1

24.01.2012

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

Niranjan Kumar Sinha vs Reena Devi on 17 August, 2011

IN 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/

Categories: Judgement

Gujrat HC: Husband can buy a car so can afford 17500 per month also !!!

Dharmeshbhai vs Hetal on 1 August, 2011
Author: 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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Categories: Judgement

HC: Husband PM income 32000, wife PM Salary 16000, HC awarded 10000 PM to wife, son with husband, daughter with wife

Smt. Sanyogita Pundir vs Parth Singh Pundir on 14 July, 2011

1

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

R/o 196, Indira Nagar Colony,

P.S. Vasant Vihar, Dehradun

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

R/o 196, Indira Nagar Colony,

P.S. Vasant Vihar, Dehradun

District Dehradun

……..Appellant

Versus

2

Parth Singh Pundir

S/o Shri Laxmi Chand Pundir

R/o 196, Indira Nagar Colony,

P.S. Vasant Vihar, Dehradun

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

Categories: Judgement

HC: Husband showed monthly income as 10000 and Family court/HC fixed monthly maintenance as 20000!!!

Mumbai HC

Mr Harish S/O Nandlal Gaba vs Smt. Monica Harish Gaba on 19 July, 2011
Bench: R. M. Savant

1

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

Categories: Judgement

PUNJAB AND HARYANA HC: Maintenance in one case to be set off against another case

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