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2007 DIGILAW 1027 (PAT)

Alpana Kumari v. Ujjwl Kumar Dutta

2007-05-31

RAMESH KUMAR DATTA

body2007
Judgment 1. Heard learned Counsel for the parties. 2. The petitioner has filed this Revision application against the order dated 29.11.2006 passed by Principal Judge, Family Court, Bhagalpur in Matrimonial Case No. 8/2006 by which the petition filed by the petitioner for maintenance pendente lite of Rs. 10,000/- per month and litigation cost of Rs. 7,000/- has been rejected. The aforesaid Matrimonial Case was filed by the petitioner on the ground of claiming dissolution of marriage with the Opposite Party on the ground of cruelty. After the Opposite Party had appeared on 2.6.2006, the petitioner filed an application under Section 24 of the Hindu Marriage Act for maintenance pendente lite and litigation cost which has been rejected. In the said application, the petitioner had claimed that the Opposite Party was earning from Stationery shop with S.T.D Booth at Mohalla Shastrinagar, Bandarjori, Dumka and besides that also owns a house and agricultural land of his family at Dumka and also works as an agent of Sahara India and his total income from the aforesaid works is stated to be Rs. 25,000/- besides agricultural land. On the basis of the same, the amount of Rs. 10,000/- was claimed as maintenance pendente lite for the purposes of the petitioner and her minor son. 3. Rejoinder was filed on behalf of the Opposite Parties in which it was claimed that the petitioner was never driven out from the place of her husband and she is residing with her parents at her will and she also asked her husband to reside with her at Bhagalpur by leaving his old mother and handicapped brother at Dumka. It was further stated that the petitioner has a small S.T.D. Booth and his income is hardly Rs. 800/- per month from which he has to maintain himself, his old and diseased mother and handicapped brother and also his wife when she was living there before a few day of 14.12.2003. It was further alleged in the said application that the petitioner was earning a good source of income from the Beauty Parlour shop running at Laluchak, Bhagalpur and her income was about Rs. 2,000/- per month. The fact of owning stationery shop and having agricultural land was denied. It is stated that the petitioner was earning hardly Rs. 800/- per month. 4. 2,000/- per month. The fact of owning stationery shop and having agricultural land was denied. It is stated that the petitioner was earning hardly Rs. 800/- per month. 4. In the impugned order dated 29.11.2006, the Court below has recorded the said submission of the parties but instead of considering the application on the basis of well established proposition of law has dismissed the same on the sole ground that inconsistent statement has been made by the petitioner which stands to support the allegation of the Opposite Party that She is living with her father at her own will and has not started the litigation with clean hand and thus was not entitled to get pendente lite maintenance amount from the Opposite Party. On the said ground, the application was rejected. 5. It is evident from the decision of the Supreme Court in the case of Amarjit Kaur vs. Harbhajan Singh and Anr. (2003)10 SCC 229, that the only consideration at the stage of an application under Section 24 of Hindu Marriage Act is whether there is a subsisting marriage between the parties in question and further whether the party who has applied under Section 24 of the Act has any independent income sufficient to support herself or himself. Once it is found by the Court that the applicant does not have sufficient independent means to support herself then the only consideration is as to the quantum of the interim maintenance to be paid which depends upon the income of the other spouse. 6. In the present matter, no such attempt has been made by the Court to arrive at a prima facie conclusion with respect to the income of the Opposite Party which is admitted to be Rs. 800 per month. Moreover, without any specific evidence, the Court below has merely recorded the said allegation of the other side that the petitioner is earning Rs. 2,000/- per month from the Beauty Parlour being run at Laluchak, Bhagalpur. In my opinion, the Court below was required to examine the said facts and come to prima facie conclusion for the purpose of granting of ad interim maintenance. The same has not been done. 7. In view of the aforesaid facts, this Court is of the view that the order dated 29.11.2006 cannot stand and it is accordingly set aside. In my opinion, the Court below was required to examine the said facts and come to prima facie conclusion for the purpose of granting of ad interim maintenance. The same has not been done. 7. In view of the aforesaid facts, this Court is of the view that the order dated 29.11.2006 cannot stand and it is accordingly set aside. The Revision application is thus allowed and the Court below is directed to examine the matter afresh in the light of the stands of the parties in this regard and also any evidence that they have to produce in support of their respective stand. Let the matter be decided afresh within a period of 2 months from today. It is made clear that even if the final judgment is passed in the matrimonial case, the same shall not stand in the way of the petitioner being granted an ad interim maintenance pendente lite and litigation expenses, if it is so found by the Court below.