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2002 DIGILAW 449 (PNJ)

Iqbal Singh v. Jaswinder Kaur

2002-04-26

M.M.KUMAR

body2002
Judgment M.M.Kumar, J. 1. This is an application filed under Section 24 of Hindu Marriage Act, 1955 (for brevity to be referred as the Act) for grant of maintenance pendente lite to the wife-respondent and to her two minor daughters namely Mandeep Kaur and Manpreet Kaur. The prayer made is that an amount of Rs. 5,000/- per month be paid as maintenance pendente lite and Rs.11,000/- be paid as litigation expenses. 2. Brief facts of the case are that the non-applicant filed a petition under Section 13 of the Act seeking dissolution of his marriage by a decree of divorce. It was alleged that the marriage between the parties was solemnized in November, 1983 at Malout in accordance with Sikh rites. From their wed-lock two children were born. One of the children Sandeep Singh allegedly fell ill in August, 1994 and was admitted in Jindal Hospital Muktsar. A team of doctors deputed by Civil Surgeon, Faridkot, had taken blood samples of the entire family of the non-applicant-appellant and it was found that the applicant-wife and the minor son Sandeep Kumar were suffering from HIV + Aids, which is incurable veneral disease. Therefore, non-applicant-appellant alleged that it is dangerous to his life to live and co-habit with the applicant wife. The Additional District Judge, Muktsar dismissed the petition of the non-applicant appellant that he was unable to prove the facts that the non-applicant-wife was suffering from Aids + HIV positive and dismissed the petition filed under Section 13 of the Act. 3. Feeling aggrieved against the order dated 03.8.1999, the non-applicant- appellant filed the appeal which was admitted on 18.1.2000. During the pendency of the aforementioned appeal, the applicant-wife has filed the present application under Section 24 of the Act, claiming maintenance for herself and for minor children along with litigation expenses. 4. In the application, it has been averred that she has no independent source of income and his family is dependent upon her parents, whereas the non-applicant-appellant has huge landed property and drawing Rs. 15,000/- per month as income from the landed property as well as other sources. She has further averred that the non-applicant-appellant has filed an appeal in this Court. Therefore, to oppose the appeal, he has engaged a counsel and has also been appearing personally from time to time. 5. 15,000/- per month as income from the landed property as well as other sources. She has further averred that the non-applicant-appellant has filed an appeal in this Court. Therefore, to oppose the appeal, he has engaged a counsel and has also been appearing personally from time to time. 5. In response to the notice of the application, reply has been filed by the non-applicant-appellant raising a preliminary objection that the application under Section 24 is not maintainable because the applicant-wife had filed a regular suit claiming maintenance under Sections 18 and 20 of the Hindu Adoption and Maintenance Act, 1956. It has further been averred that the suit has been decreed on 29.4.2000 and first appeal filed before this Court already stand admitted. It has further been argued that a Division Bench of this Court has passed ad-interim order directing that Rs. 1000/- as maintenance be paid to the applicant-wife. Learned counsel has further pleaded that one of the children has expired on 20.11.2001. However, it is candidly admitted that the non-applicant-appellant has an income of Rs.14000/- from his land measuring 47 Kanals-14 Marias. 6. Mr. Surinder Garg, learned counsel for the applicant-wife has argued that Rs. 1000/- to be paid under the decree by the non-applicant-appellant is to meager amount for two persons to make both ends needs. Therefore, he had submitted that some amount should be fixed under Section 24 of the Act. He has further submitted that litigation expenses in any case has to be paid and the decree passed by the Civil Judge in the suit filed under Sections 18 and 20 of the Hindu Adoption and Maintenance Act, 1956 would have no bearing on the claim for litigation expenses. 7. Having heard learned counsel for the parties and perusing the record, 1 am of the considered view that this application merits acceptance. The income of the non-applicant-appellant cannot be considered less than Rs.25,000/- because even an able body labourer would not be earning less than Rs.2400/- per month as his minimum wages in Rs. 80/- per day. The non-applicant-wife who, as per the allegation of the non-applicant-appellant, is suffering from some illness has no source of income. In my opinion, it would meet the ends of justice if the non-applicant-appellant is directed to pay Rs.500/-per month to the applicant-wife under Section 24 of the Act. 80/- per day. The non-applicant-wife who, as per the allegation of the non-applicant-appellant, is suffering from some illness has no source of income. In my opinion, it would meet the ends of justice if the non-applicant-appellant is directed to pay Rs.500/-per month to the applicant-wife under Section 24 of the Act. This amount of maintenance is over and above the amount that has already been ordered by this Court to be paid to the wife and the daughter. The daughter shall also be entitled to Rs. 5007- as maintenance pendente life which would be over and above the order passed by any other Court. An amount of Rs. 10,000/- is awarded as litigation expenses. Before parting, it is appropriate to deal with the preliminary objection raised by learned counsel for the non-applicant-appellant concerning maintainability of the present application or the ground that a suit for maintenance filed under Sections 18 and 20 of the Hindu Adoptions and Maintenance Act, 1956 stand already decreed and this Court has directed by ad-interim order passed in the first appeal payment of Rs. 1,000/- as maintenance to the applicant-wife. In the case of Om Parkash v. Smt. Chanderwati, (1991-1) P.L.R. 13, this Court has taken the view that ground of maintenance under Section 125 of the Criminal Procedure Code would not create a bar for filing an application under Section 24 of the Act. The only limitation could be that the order should be passed keeping in view the maintenance awarded in any other proceedings. It is a case of an earlier order of maintenance directing he non-applicant-appellant to pay Rs. 1,0007- and maintenance that a meager sum of Rs. 500/- as maintenance has been awarded to each one of the applicant-wife and the child. Therefore, I have no hesitation in rejecting the preliminary objection and holding that the application under Section 24 is maintainable. 8. The application stands disposed of in the above terms. The amount shall be paid from the date of application and non-applicant shall continue to pay the amount during the pendency of the appeal. It is further directed that the amount shall be paid within a period of two months from the date of receipt of the copy of the order.