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2000 DIGILAW 1366 (PNJ)

Amarjit Kaur v. Harbhajan Singh

2000-11-10

R.L.ANAND

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JUDGMENT R.L. Anand, J. - This is a civil revision and has been directed against the order dated 10.10.1998 passed by the Addl. District Judge, Ludhiana, dismissing the application of the petitioner Smt. Amarjit Kaur under Section 24 of the Hindu Marriage Act, 1955, for the reasons given in para Nos. 6 to 10 of the impugned order : "6. It was argued by Mr. Sharma that husband petitioner is an employee and draws a salary of Rs. 9000/- p.m. and has also rental income and further submitted that respondent wife is to pay electricity and telephone bills and other charges and prayed that sufficient amount be awarded as maintenance allowance as well as for litigation expenses. Opposing this contention, it was argued by Mr. Varinder Khera, Advocate that the respondent wife is living in adultery with respondent No. 2 which is supported by affidavit filed by the mother and brother of respondent No. 1 and in these circumstances, it will not be just and proper to order the husband petitioner to pay the maintenance allowance to the respondent No. 1. I have considered the respective contentions. 7. A reading of the provision of Section 24 shows that the condition precedent if an application under Section 24 is that the spouse, either wife or husband, has no independent income, sufficient to the spouse for his or her maintenance and of necessary expenses. The purpose of this Section is to enable the financially weak party to litigate his or her rights in a matrimonial cause. 8. A perusal of the document placed on the file shows that husband petitioner was challenged (Challaned ?) under Sections 107/151 Criminal Procedure Code at the instance of the respondent wife. Again she filed civil suit No. 146 of 17.3.96 against her husband. She also filed criminal complaint 18/1 of 8.5.97 under Sections 406/498-A IPC. She also got registered a case under Section 363 IPC bearing FIR No. 15/98 at Police Station Division No. 3, Ludhiana against her husband and others and later on a Calendra was filed against her under Section 182 IPC for lodging a false report with the police. Thus, these documents shows that various litigation was filed at the instance of the respondent wife. 9. Respondent wife has herself pleaded in her application under section 24 of the Act that she has rental income of Rs. Thus, these documents shows that various litigation was filed at the instance of the respondent wife. 9. Respondent wife has herself pleaded in her application under section 24 of the Act that she has rental income of Rs. 2000/- p.m. and thus, it cannot be said that she has no source of income to maintain herself or to pay the litigation expenses. If she is to pay electric and telephone bills, she is supposed to adjust the expenditure according to her income and it cannot be held that she is unable to maintain herself. 10. Considering the litigation between the parties, started at the instance of the respondent wife and the fact that respondent wife has monthly income of Rs. 2000/- and the fact that divorce has been sought on a definite ground of adultery, it is not a fit case where maintenance allowance and litigation expenses be awarded under section 24 of the H.M.A." 2. Brief facts of the case are that husband Shri Harbhajan Singh filed a petition under Section 13 of the Hindu Marriage Act against his wife Smt. Amarjit Kaur alleging that the marriage between the parties took place on 16.1.1980 at Ludhiana. From this wedlock four children namely Gagandeep Kaur. Neelam Rani, Sandeep and Kirandeep Kaur were born. The case set up by the husband is that on 14.4.1994 at about 10.30 A.M. when he came to the house to collect some documents all of a sudden and when he opened the door of the bed room, he found his wife and respondent No. 2 Mr. Shyam Sunder Bassi in a compromising condition. On seeing him, respondent No. 2 ran away from the room. Respondent No. 1 was persuaded to sever her relations with the respondent No. 2, keeping in view the future of growing up children but she did not agree and started residing separately in House No. 211, Gali No. 5, Madhopuri, Ludhiana. It is further pleaded by the petitioner that respondent No. 1 even gave birth to fifth child from the loins of respondent No. 2. Thus, divorce was sought by the husband on the ground of adultery and mental cruelty. 3. Notice of the petition was given to the respondent who filed the application under Section 24 of the Hindu Marriage Act and she prayed that she be granted maintenance pendente lite amounting to Rs. 3000/- per month and Rs. Thus, divorce was sought by the husband on the ground of adultery and mental cruelty. 3. Notice of the petition was given to the respondent who filed the application under Section 24 of the Hindu Marriage Act and she prayed that she be granted maintenance pendente lite amounting to Rs. 3000/- per month and Rs. 6600/- by way of litigation expenses and further she may also be awarded Rs. 1000/- each for the minor children, who are in her custody. According to the respondent No. 1, she has given the house on rent in which she has been residing and gets Rs. 2,000/- as rent. She has thus no other source of income. She is maintaining three children and she also pay Rs. 100/- as house tax and Rs. 100/- as water and sewerage charges besides telephone and electricity bills. Her husband works as Cashier in Shreyans Woollen Mills, Ludhiana and gets Rs. 9,000/- per month. He own four houses and gets Rs. 2000/- by way of rental income and total income of her husband is about Rs. 12,000/-. Husband filed the reply to the application under Section 24 of the Hindu Marriage Act and denied the allegations. According to him, his wife has income of Rs. 5000/- to 7000/- per month from the rent and on the contrary he does not have any income from the rent. According to the husband, his wife is living in adultery and therefore, she cannot claim any maintenance pendetelite and litigation expenses. 4. The learned Additional District Judge, Ludhiana vide impugned order dated 10.10.1998 dismissed the application under Section 24 of the Hindu Marriage Act and in this manner, the present revision. 5. I have heard Shri Sunit Chadha, Advocate for the petitioner and Shri Viney Mittal, Senior Advocate for the respondents and with their assistance. I have gone through the records of the case. 6. Prima facie, there is no proof on the record suggest that Shri Harbhajan Singh is getting salary of Rs. 9,000/- from his employee. The lady has not produce any salary certificate to sugest that the income of her husband is 9,000/- per month. there is also no affidavit of any of the tenant regarding the rental income of the husband. Equalty, there is no prima facie proof to suggest that lady is earning Rs. 9,000/- from his employee. The lady has not produce any salary certificate to sugest that the income of her husband is 9,000/- per month. there is also no affidavit of any of the tenant regarding the rental income of the husband. Equalty, there is no prima facie proof to suggest that lady is earning Rs. 5,000/- to 7,000/- per month from the rent but the proved facts are that the respondent is working as Cashier in Sriyance Woolen Mills, Ludhiana and according to his own admission getting Rs. 65,000/- per month. So far as four children are concerned, there is no dispute. Out of four, three are the daughters and one is the son. Presently two daughters aged about 20 and 21 years and son aged about 18 years are residing with their father. Ms. Kirandeep kaur, aged about 11 years is residing with her mother. According to the petitioner, she gave birth to a son namely Samarjit Singh front the loins of her husband Shri Harbhajan Singh which fact is being disputed. Be that as it may, the marriage between the parties has not been dissolved. For the sake of arguments that the petitioner is earning Rs. 2,000/- per month, in the modern times it is difficult for her to maintain hereself and one child, admittedly, who was born out of this wedlock and one male child about whom there is dispute about the parentage. On the contary, respondent Harbhajan Singh is maintaining two young daughters and one child. He is also supposed to maintain himself being bread earner. 7. In this view of the matter, this revision stands disposed of by giving directions to the respondent Harbhajan Singh to pay Rs. 2,000/- by way of litigation expenses to the lady and he shall further pay Rs. 2,000/- by way of maintenance which amount shall be paid to the petitioner from the date of her application. 8. During the course of the submission, it was suggested to the counsel for the petitioner and his client Smt. Amarjit Kaur whether they are willing to get DNA test of the male child namely Samarjit Singh. 9. 2,000/- by way of maintenance which amount shall be paid to the petitioner from the date of her application. 8. During the course of the submission, it was suggested to the counsel for the petitioner and his client Smt. Amarjit Kaur whether they are willing to get DNA test of the male child namely Samarjit Singh. 9. Before concluding, directions are also given to the trial court to order for conducting the DNA test of the male child who is in the custody of the petitioner and if the test goes against the petitioner, she will not be entitled to get any maintenance pendente lite for herself but she will definitely get the maintenance for the girl child whose maintenance I fix at Rs. 1,000/- per month. Copy of this order be given dasti to both the parties. Order accordingly.