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2001 DIGILAW 1062 (PNJ)

Deepti Rishi v. Vipin Rishi

2001-09-28

BAKHSHISH KAUR

body2001
JUDGMENT Bakhshish Kaur, J. - A petition under Section 13 of the Hindu Marriage Act (in short the Act) for dissolution of the marriage was filed by Dr. Vipin Rishi. 2. In the wake of petition for divorce, the wife Miss Deepti Rishi moved an application under Section 24 of the Act for maintenance pendente lite and litigation expenses. The learned District Judge has dismissed the application on the ground that she has failed to prove that she has got no sufficient income for her support and necessary expenses of litigation. Hence the order dated 27.8.1998 is under challenge in this revision petition. 3. I have heard Shri R.D. Vinayak learned counsel for the petitioner. None has appeared on behalf of the respondent. Earlier, he was duly represented by his counsel. 4. The respondent is doctor by profession. The petitioner is also qualified in the teaching profession. Though the petitioner had specifically averred that she has got no source of income to maintain herself and her minor daughter yet her contention in this regard was not accepted, may be for the reason that respondent in the reply has averred that she is posted as Principal in the Head Office of D.A.V. Management Committee and is drawing Rs. 8500/- per month as salary, which is sufficient to meet her needs. Further that she also owns movable and immovable property. 5. As regards his income, he has admitted that his monthly income is Rs. 6000/-. His carry home salary is Rs. 5370/-. But he has to discharge his family obligations, including the maintenance of his widowed mother, grandmother and other dependent members of the family. 6. The factor which weighed with the learned District Judge is that both the petitioner and respondent are practising Ayurvedic and Herbal Medicine, therefore, she is in a position to earn for the support as well as to meet the litigation expenses, as she is drawing salary of Rs. 8500/- per month from the College. 7. A bare persual of the impugned order would reveal that the matter has been decided purely on the basis of statements of the parties. There is no reference to any document having been brought on the record. 8500/- per month from the College. 7. A bare persual of the impugned order would reveal that the matter has been decided purely on the basis of statements of the parties. There is no reference to any document having been brought on the record. For instance, under para 8 of the judgment, it is observed :- "Coming to the brass tacks, the first question to be determined by this court is whether the wife has no independent income sufficient for her support and necessary expenses of the proceedings. As demonstrated above, the first party is also practising Herbal and Ayurvedic medicine. At least as per her own admission, she is competent to practice the same. In these days of health fads it would not be difficult for any practitioner of Herbal and Ayurvedic medicine worth her name to eke out a respectable living. In addition to this, the applicant is admittedly an employee of the D.A.V Managing Committee at its Head Office at New Delhi. It is not denied that she is a Principal or an academic of that rank. The second party has stated that her salary is Rs. 8500/- per month. Her plea is that she has been on leave without pay since September, 1995. It is not suggested that her leave without pay is related to health problem or any circumstance beyond her control. Rather on the totality of the facts and circumstances of this case, it appears that she is on leave without pay of her own choice for which she has not explained any justifiable cause or reason. One possible reason suggested by the learned counsel for the second party is that she is on leave without pay because she is practising Herbal and Ayurvedic medicine. This explanation appears to be quite reasonable and probable." 8. Whether the petitioner remained on leave by way of her choice or because of the circumstances beyond her control ? In this context, reference has to be made to the grounds taken up in the revision petition. Under para 10, it is averred that though at the time of filing the application under Section 24 of the Act, she was employed but she was not assigned any post. She was on leave without pay commencing from March, 1995. Thereafter, her services were terminated by the employer w.e.f. 02.01.1998. Since then, she is unemployed. Under para 10, it is averred that though at the time of filing the application under Section 24 of the Act, she was employed but she was not assigned any post. She was on leave without pay commencing from March, 1995. Thereafter, her services were terminated by the employer w.e.f. 02.01.1998. Since then, she is unemployed. She has also not been paid salary or allowances even for a single day since March, 1995. 9. The application under Section 24 of the Act was pending before the learned District Judge since 1995. It was decided in August, 1998. Whether the petitioner was paid any salary during the period commencing from March, 1995 to August, 1998 ? It was imperative upon the respondent to summon the record of the College where the petitioner was allegedly serving. The said record would have been enough to controvert the case set up by the petitioner that she was on leave without pay. 10. On the contrary, certain documents placed on record by the petitioner go a long way to show that during the leave period she was not paid any amount Later on her services were terminated vide letter dated 2.1.1998 under cover of Managing Committees letter bearing reference No. PS/PL/3/98/14826 dated 31.3.1998, which finds mention in Annexure P-5. It is an additional affidavit filed by the petitioner. Annexure P-3 is a letter dated 20.9.1996 issued by the D.A.V. College Managing Committee, wherein it is mentioned that she was asked to join the stations during the period i.e. April, 1995 to June, 1995, but she was reluctant to go to rural areas, therefore, the Managing could not release any salary for services of the period from 9.3.1995 to 15.10.1995. As regards her maternity leave of the period 16.10.1995 to 15.1.1995, she was informed that she has been granted leave without pay for the period 16.1.1996 to 15.12.1996. As far as the salary for the period during which she remained on maternity leave from 16.10.1995 to 15.1.1996, the matter was under consideration. Thus, it makes clear that not only she remained on leave without pay but her services were also terminated. 11. As far as the salary for the period during which she remained on maternity leave from 16.10.1995 to 15.1.1996, the matter was under consideration. Thus, it makes clear that not only she remained on leave without pay but her services were also terminated. 11. Again, under para 11 of the grounds of revision, she has given the reasons and the circumstances for remaining on leave and that she was not paid salary during the period, which is detailed as under :- "That the learned District Judge has totally overlooked the fact of the termination of service of the petitioner herein and also ignored the very important fact that even before that the respondent was in no position to join duty, and had been without any income whatsoever, due to the following reasons, which are on record :- I. Initially her pRegulation ncy (she delivered a baby girl on 16.10.1995) II. Delivery and maternity leave from 16.10.1995 to 15.1.1996, for which she was subsequently denied her salary. III. Lactation and the care of the small baby, who was barely 4-1/2 months at the time of her moving the application for maintenance etc., and 2 years and 2 months at the time of the termination of her service, all by herself without any help from the Respondent husband or his family. IV. Litigation thrust upon her by the respondent husband which had to be followed up by frequent appearances in courts at Chandigarh. V. Humiliation and loss of reputation because of the very grave allegations levelled against her, and her character assassination by the respondent." 12. The learned District Judge under para 4 of the judgment has also observed that, "from the averments made in his written reply, it appears that the second party has also denied the paternity of the female child which was born to the first party." Nothing more can be humiliating to the wife where the father denies the paternity of a child. Such an allegation is the gravest allegation of its kind. 13. The respondent, according to his own saying, is working as Senior Assistant, CITCO, as mentioned in reply to the application under Section 24 of the Act. He is getting salary of Rs. 6000/- per month besides allowances, but his carry home salary is only Rs. 5370/-. Such an allegation is the gravest allegation of its kind. 13. The respondent, according to his own saying, is working as Senior Assistant, CITCO, as mentioned in reply to the application under Section 24 of the Act. He is getting salary of Rs. 6000/- per month besides allowances, but his carry home salary is only Rs. 5370/-. It is significant to note that the respondent in his reply has not given the details of the allowances admissible to him nor he has stated about the details of the deductions being made from his salary. 14. On the contrary, the petitioner has placed on record the salary certificate of the respondent which is Annexure P-7. As per the certificate, he is drawing salary of Rs. 9511/- per month and after deductions, it comes to Rs. 8009/-. 15. In addition to salary as above, the fact that he is practising Ayurvedic and Herbal Medicine cannot be ignored. It has been so observed by the learned District Judge in para 7 that, "the wife says that the clinic had initially been installed and started by her which is now being run by the husband." The respondent has not specifically denied that he is practising Ayurvedic and Herbal Medicine. The income of the respondent from all sources might be between Rs. 12,000/- to Rs. 15,000/- per month. 16. A somewhat similar situation arose in Neeta Khurana v. Sunder Lal Khurana, 1990(1) DMC 267, wherein the wife had produced the certificate that she was no more in employment and the certificate was not controverted by the husband. The wife was, therefore, held entitled to maintenance pendente lite and litigation expenses. 17. Considering the aforesaid facts and circumstances of the case, I am of the considered view that by denying the litigation expenses and maintenance pendente lite the trial Court has not properly exercised the discretion vested in it under Section 24 of the Act in accordance with the sound judicial principles. In the case herein the petitioner who has no source of income has not only to maintain herself but she has to maintain her minor child who is living under her care and custody. 18. For the aforesaid reasons, this revision petition is allowed. The impugned order is set aside. The petitioner is allowed Rs. 2500/- as maintenance pendente lite from the date of filing of the application under Section 24 of the Act. 18. For the aforesaid reasons, this revision petition is allowed. The impugned order is set aside. The petitioner is allowed Rs. 2500/- as maintenance pendente lite from the date of filing of the application under Section 24 of the Act. She is also allowed litigation expenses of Rs. 10,000/-. Petition allowed.