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2001 DIGILAW 338 (JK)

Mandeep Sharma v. Kiran Sharma

2001-12-24

S.K.GUPTA

body2001
Both these Revision Petitions, filed by the parties separately having arisen out of the same impugned order, shall be disposed of by a common judgment. Civil Revision No. 181/2001 as been filed by the respondent-husband, Mr. Mandeep Sharma, and Civil Revision No. 106/2001 has been filed by the petitioner-wife, Mrs. Kiran Sharma. 2. Fact relevant for the disposal of these Revisions in nutshell are that, in a petition for divorce initiated by Mandeep Sharma, husband, under Section 13 of the Hindu Marriage Act (hereinafter referred to as Act), Kiran Sharma, wife, put appearance and moved an application for the grant of pendente lite maintenance and litigation expenses both for herself and her minor male child, two-and-half-year old, in invoking the provisions of Section 30 of the Act, inter-alia pleading that she is residing with her parents along with a minor child and had no independent source of income and, thus, requires Rs. 5.000/- per month for herself and the minor child as maintenance and Rs. 15.000/- to prosecute the proceedings and defend herself in the case. It is also contended by the wife, Kiran Sharma, that her husband, Mandeep Sharma, is a Government Contractor and has an earning of Rs. 25.000/- per month and can conveniently provide maintenance to her and the minor child, besides expenses to defray the litigation charges. The wife further sought an advance of Rs. 500/- for each hearing from the husband. 3. In controverting the claim of the wife, it was alleged by the husband that Kiran Sharma, his wife, is running Sun Shine Academy with her mother at Kandoli, Nagrota and distributes the earning amongst themselves. He further pleaded that after accident, he does not have substantial income. He further pleaded to have been in great agony on behalf of desertion of his wife, which has affected his efficiency and capacity to work. The matrimonial Court, after parties let in evidence in support, in rebuttal and hearing the arguments, held as under : "Keeping in view the above discussion it is amply clear that the applicant is having her own source of income but the minor son being unable to maintain herself.It is common duty of both the parents to maintain the minor son. A minor child of the age of son of the applicant needs good care and has to be maintained as per the standard of the parties. I, therefore, find Rs. A minor child of the age of son of the applicant needs good care and has to be maintained as per the standard of the parties. I, therefore, find Rs. 1500/-sufficient for the maintenance of the son by the parties per month. The maintenance of the child shall be borne by both the parties in equal shares which comes to Rs. 750/-per month. Since the child is living with the mother, the non-applicant father is directed to pay an amount of Rs. 750/- monthly to the minor son as maintenance allowance from the date of this application. Since the applicant is an earning hand herself she can very well bear the litigation expenses, therefore, no order is made regarding the litigation expenses as claimed by the applicant. Hence disposed of and made part of the main file. 4. Heard the counsel appearing for the respective parties and perused the record. Civil Revision No. 181/2001 5. Mr. P. L. Koul, learned counsel appearing for Mandeep Sharma, petitioner, has assailed the correctness of the order impugned on twin grounds; firstly, no maintenance to the child can be granted under Section 30 of the Act and secondly, the financial incapacity of the petitioner to pay the maintenance. According to Mr. Koul, petitioners advocate, a plain reading of the provisions of Section 30 of the Act unambiguously contemplates, either wife of husband, having no independent income sufficient for her or his support and necessary expenses of the proceedings, may make a application for the grant of maintenance an pendente lite expenses of the proceedings That the Section contemplates only wife or husband as regards the grant of maintenance and pendente lite expenses and rule out the grant of maintenance to the children, who live with the wife and are dependent on her. His further contention is that the word "wife" or "husband" has to be interpreted in the strict sense as provided in Section 30 of the Act. Mr. Koul further stated that the reasons for enacting the provisions under Section 30 are obvious that a "wife� or a "husband" has no independent income sufficient for her or his support or enough to meet the necessary expenses of the proceedings may not handicap. 6. It is pertinent to point out that the maintenance granted under Section 30 of the Act is only an ad hoc arrangement during pendency of the proceedings. 6. It is pertinent to point out that the maintenance granted under Section 30 of the Act is only an ad hoc arrangement during pendency of the proceedings. The word "wife" or "husband" should not be interpreted in such a strict sense so as to rule out grant of maintenance to the child, who lives with the wife and is dependent upon her. When the child lives with the wife and in the very nature of the circumstances, the requirement of wife will include the requirement of the minor child/children dependent on her and living with her. When both husband and wife are earning, it becomes the moral duty of both to maintain the child and share the burden of maintaining the child equally, which would be fair and proper. The fact that the wife is being supported by the parents is no ground for the husband to claim discharge of his obligation or immunity from liability to pay maintenance for the child, irrespective of the fact, whether it is claimed or not in the application under Section 30 of the Act. Another leg of argument advanced by Mr. Koul was that, claim for maintenance of child cannot be considered in isolation. The wife, in this case, has claimed maintenance pendente lite both for herself and minor child, but the Matrimonial Court found that both the husband and the wife are earning and provided maintenance only to the child to be shared by them equally during the pendency of the proceedings. In such circumstances, the contention raised by Mr. P.L. Koul is devoid of any substance either factually or legally, to merit acceptance. It was next contended by Mr. P.L. Koul, learned counsel for the petitioner, that petitioner met with an accident and cannot pursue his avocation as a Contractor and, thus, does not have any source of income. Whereas the respondent-wife, on the other hand, is B.A.. B.Ed, qualified and working in the school, Sun Shine Academy, run by her mother. The wife, however, claimed to have not been working in the school of her mother as a teacher. But the fact remains that she being a trained teacher had been working in her mothers school at Nagrota as reflected in the record of the Directorate of School Education and, thus making earning. The wife, however, claimed to have not been working in the school of her mother as a teacher. But the fact remains that she being a trained teacher had been working in her mothers school at Nagrota as reflected in the record of the Directorate of School Education and, thus making earning. The Matrimonial Court, in estimating her earning, did not find the wife entitled to any maintenance allowance and pendente lite litigation expenses from her husband during the pendency of the proceedings. Section 30 of the Act. no doubt, takes care of the maintenance of the wife during the pendency of the proceedings, but this Section cannot be read in isolation and cannot be given restricted meaning to hold that it is the maintenance of the wife alone and no one else. Since the wife is maintaining the minor child, born out of the wedlock of the litigating parties, her right to claim maintenance will include the maintenance for the minor child also and this fact has to be kept in view while fixing the maintenance pendente lite, as is held in case Jasbir Kour Sehgal v. Distt. Judge Dehradun , AIR 1997 SC 3397 : (1997 All LJ 2091). It, therefore, follows that the maintenance pendente lite to wife does not mean the wife alone and includes maintenance for her dependent(s) whom she is also maintaining. 7. Since the petitioner is a Government Contractor and executing the Government work allotted to him through engaged labourers, he cannot shirk his liability to provide maintenance merely on the ground that he has met with an accident and restrained from executing the work due to physical disability, obviously temporary. It cannot, therefore, be said by any stretch of reasoning that he has no source of earning to provide maintenance to the child living with the in discharge of his obligation. Civil Revision NO. 106/2001 8. In this Revision, the main grievance of the wife is that Matrimonial Court has not estimated, assessed and appreciated the-evidence in its proper perspective and had drawn conclusion on presumptions alone. She, however, admitted to be a B.A. trained teacher and assisting her mother in running the school. Sun Shine Academy, but soon after she was ousted from the matrimonial house along with minor child, she left the job and started taking care of minor son. She, however, admitted to be a B.A. trained teacher and assisting her mother in running the school. Sun Shine Academy, but soon after she was ousted from the matrimonial house along with minor child, she left the job and started taking care of minor son. It is no doubt true that if the wife has no source of income, it is the obligation of the husband to maintain her and also children of the marriage. Her right to claim maintenance fructifies on the date of filing of the divorce petition under the Act. But where the husband claimed that the wife is a trained teacher and working in a school and earning sufficient income to maintain herself and also bear the expenses of the proceedings, in that event, the Court has to consider the diverse claims made by the parties before granting maintenance pendente lite. But where it is established by the evidence that the wife has a sufficient independent income for her support, no order for maintenance pendente lite could be granted to the wife. 9. In the instant case, the record of the Directorate of School Education revealed that Kiran Sharma remained employed as teacher in Sun Shine Academy in 1997 and thereafter her name did not find place in the record pertaining to the year 1999. The Matrimonial Court, however, found that it is unbelievable that a Matriculate woman would run a full-fledged school and a daughter, who happens to be better qualified, being B.Ed, trained teacher, stood at home. The Court further found that the truth has not come out and assuming that she is not working in her mothers school, there is no dearth of work for a trained teacher. Considering the facts and circumstances emerging out of the evidence on record, the Matrimonial Court found that wife not entitled to relief of pendente lite maintenance for herself and litigation expenses. 10. In my view, there does not appear any infirmity, much less legal infirmity or material irregularity, in the order impugned calling for interference by this Court. 11. Having considered the aforesaid facts and circumstances, both the Revisions in my opinion, are without merit and an hereby dismissed. Record shall be remitted back to the Matrimonial Court forthwith. Parties to the case are directed to appear before the Matrimonial Court on 12-2-2002: Revisions dismissed.