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2010 DIGILAW 1613 (PNJ)

Sudhir Chandna v. Anju Bajaj Chandna

2010-05-07

RAKESH KUMAR GARG

body2010
JUDGMENT Rakesh Kumar Garg, J. CM No.11511, 11220 & 11221-CII of 2010 Applications are allowed subject to all just exceptions. CR No.2767 of 2010 These revision petitions i.e. 2767 and 2768 of 2010 have arisen out of an order dated 10.3.2010 passed by the District Judge, Rohtak, on an application under Section 24 of the Hindu Marriage Act, 1955 (hereafter referred to as the “Act”) filed by the respondent-wife claiming maintenance pendente lite for the children from the petitioner-husband and a counter claim filed by the petitioner-husband against the respondent-wife claiming maintenance from her. As per the averments, the petitioner-husband filed a petition under Section 13 of the Hindu Marriage Act, 1955 on 8.4.2004 for dissolution of marriage by a decree of divorce. Respondent-wife filed an application on 2.7.2004 under Section 24 of the Act, inter alia, stating therein that the petitioner-husband was working as a Scientist and his gross salary was Rs.25,000/-approximately. Both the children of the parties were living with her and she alone was maintaining, educating and bringing them up out of her own income/resources. It was further pleaded that the petitioner-husband was contributing a sum of Rs.5,000/-per month as per the orders passed by the Delhi High Court whereas the expenses of the children come to Rs.18,455/-per month as per her affidavit dated 19.10.2002 submitted in the maintenance case. The above expenses have escalated since then, due to inflation and ever rising costs of education and living. The amount of Rs.5,000/-was ordered in May, 2001 and since then, there was no enhancement to it. It was further submitted that the gross salary of the respondent was Rs.24,301/-per month (at the time of filing of the application i.e. July, 2004) and she was not having sufficient income to meet the expenses of present litigation and also for proper maintenance and up bringing of both the children. Accordingly, it was prayed that the petitioner be directed to pay the maintenance of the above said expenses of proceedings and also sufficient amount towards maintenance pendente lite for the children. Upon notice in the said application, the petitioner filed detailed reply stating therein that the respondent-wife was not entitled to any relief. It was further submitted that salary of the petitioner-husband was Rs.22,904/-and he was getting Rs.13,722/-per month after compulsory deductions. Upon notice in the said application, the petitioner filed detailed reply stating therein that the respondent-wife was not entitled to any relief. It was further submitted that salary of the petitioner-husband was Rs.22,904/-and he was getting Rs.13,722/-per month after compulsory deductions. Further, an amount of Rs.5,000/-per month was being paid by him to his two children in compliance of the Court orders passed under Section 20 of the Hindu Adoption and Maintenance Act, 1956. Along with this reply, the petitioner-husband also put forth his counter claim stating that he was also entitled to get maintenance allowance as well as litigation expenses from the respondent-wife as his parents are old and unable to meet out their daily needs and their medical expenses and the petitioner has to render financial help to them which is obligatory on his part. It was reiterated that his last drawn salary for the month of April, 2004 was husband with respondent-wife, it was crystal clear that she was earning more than three times the disposable income in the hands of the petitioner. Accordingly, it was prayed that the respondent-wife be directed to pay a sum of Rs.15,000/-per month as maintenance to the petitioner-husband and also litigation expenses as deemed appropriate by the Hon'ble Court. The District Judge, Rohtak, after taking into consideration that an amount of Rs.7500/-was being paid as interim maintenance to both the children vide order dated 19.12.2006 passed by the Delhi High Court in RFA No.227 of 2005 titled as Sudhir Chandna v. Mst. Vividh Chandna & another and affirmed by the Hon'ble Apex Court while dismissing the Special Leave to Appeal (Civil) No.5303/2007, vide impugned order dated 13.4.2007 held that keeping in view the income of the husband and the wife, the children were entitled to a sum of Rs.10,000/-per month over and above the amount being paid to them by way of interim order dated 19.12.2006 passed by the Delhi High Court in RFA No.227 of 2005. The counter claim of the petitioner claiming maintenance pendente lite for himself against the respondent-wife was dismissed. The counter claim of the petitioner claiming maintenance pendente lite for himself against the respondent-wife was dismissed. Challenging the impugned order in these petitions, learned counsel for the petitioner has vehemently argued that the amount determined by the District Judge, Rohtak, under Section 24 of the Hindu Marriage Act for providing maintenance to both the children of the parties was absolutely contrary to the provisions of well settled principle of law as the law does not permit double maintenance and a party cannot claim double maintenance amount. It was further argued by the learned counsel for the petitioner that the law provides for determination of the maintenance allowance at the time of filing of application for grant of maintenance and the relevant period in this case was July, 2004 i.e. when the application for interim maintenance under Section 24 of the Act was filed,hereas while passing the impugned order, the District Judge has erred in holding that the maintenance can be granted on the basis of income of the petitioner-husband in the year 2009. It was further pleaded by the learned counsel for the petitioner that the impugned order is in direct conflict with the order of the Delhi High Court passed in RFA No.227 of 2005 and affirmed by the Hon'ble Apex Court, therefore, the District Judge had no jurisdiction to increase the amount of maintenance which had already been fixed by the Hon'ble Apex Court and the impugned order was liable to be set aside. In support of his case, learned counsel for the appellant has cited judgments reported as Shanti Devi v. Mathura Lal 1995 (2) HLR 126 (Rajasthan), Bharat Hegde v. Saroj Hegde 2007(4) RCR (Civil) 402 Sanjay Chopra v. Shyama Chopra 2001 (1) HLR 481. I have heard learned counsel for the petitioner and perused the impugned order as well the other documents attached with this petition which was initially filed under Article 227 of the Constitution of India but vide order dated 4.5.2010 was treated as a revision petition under Section 115 of the CPC. Admittedly, the petitioner is a scientist working in Defence Research and Development Organization and the respondent is a Judicial Officer working at Delhi. Parties to this petition are having two grown up children who are residing with the respondent-mother. Admittedly, the petitioner is a scientist working in Defence Research and Development Organization and the respondent is a Judicial Officer working at Delhi. Parties to this petition are having two grown up children who are residing with the respondent-mother. It is also not in dispute that on an application under Section 20 of Hindu Adoptions and Maintenance Act filed at Delhi, the petitioner was paying w.e.f. May, 2001, a sum of Rs.5,000/-per month for both the children as maintenance during the pendency of that suit. However, the trial Court vide decree dated 7.2.2005 awarded maintenance of Rs.5,000/-per month for each of the child (i.e. Rs.10,000/-). The petitioner-husband challenged the aforesaid judgment and decree by filing RFA No.227 of 2005 in Delhi High Court. Vide interim order dated 20.4.2005, the petitioner was directed to pay an interim maintenance @ Rs.10,000/-as awarded by the trial Court and was also granted visiting rights. Vide its order dated 19.12.2006, the Delhi High Court directed the petitioner to pay a sum of Rs.7500/-per month on account of maintenance to both the children w.e.f. 1.1.2007. Feeling aggrieved therefrom the respondent-wife preferred a Special Leave Petition. However, the appeal bearing Special Leave to Appeal (Civil) No.5303 of 2007 was dismissed by the Hon'ble Apex Court vide order dated 13.4.2007. It may also be added here that vide order dated 17.3.2009 passed in RFA No.227 of 2005, the Delhi High Court had directed the petitioner to pay a sum of Rs.60,000/-in lump sum towards education of both the children. However, there is nothing on record of this petition to suggest that RFA No.227 of 2005 filed by the petitioner against the decree of the trial Court granting maintenance to the children @ Rs.5,000/-per month for each child (totalling Rs.10,000/-) has been decided or that the aforesaid decree has been set aside. However, there is nothing on record of this petition to suggest that RFA No.227 of 2005 filed by the petitioner against the decree of the trial Court granting maintenance to the children @ Rs.5,000/-per month for each child (totalling Rs.10,000/-) has been decided or that the aforesaid decree has been set aside. It is also not in dispute that the respondent-wife has not claimed any maintenance pendente lite from the petitioner-husband despite the fact that petition under Section 13 of the Hindu Marriage Act, for dissolution of marriage by decree of divorce was filed by the petitioner in April, 2004 and the present application has been filed for getting the maintenance only in the year April, 2009 submitting that no doubt, the maintenance of Rs.7500/-was being paid to the children in the proceedings under the Hindu Adoptions and Maintenance Act by way of interim measure but keeping in view the escalation in the expenses due to inflation and ever rising costs of education and living and the growing age of the children, the petitioner be directed to pay the sufficient amount towards maintenance pendente lite for the children. Learned counsel for the petitioner has very fairly submitted that the object of Section 24 of the Act is to support the spouse and the children and the proceedings for grant of maintenance pendente lite to the children under Section 24 of the Hindu Marriage Act are independent and separate from the proceedings for grant of maintenance under the provisions of Hindu Adoptions and Maintenance Act and the Court is competent to grant maintenance pendente lite under Section 24 of the Hindu Marriage Act for maintenance of the children independently, keeping in view the income of the parents. It is also not in dispute that keeping in view the escalation in the facts and circumstances of each case, the Court can vary the amount already fixed by taking note of the rise in prices of commodities and income of the parties, however, the quantum of maintenance is to be fixed after having regard to the income of both the spouses. Learned counsel for the petitioner has also submitted that the Court was competent to grant maintenance pendente lite either from the date of order or from the date of application. Learned counsel for the petitioner has also submitted that the Court was competent to grant maintenance pendente lite either from the date of order or from the date of application. It is also not in dispute that the gross-salary of the petitioner-husband with effect from April, 2009 is Rs.58,680/-per month whereas the gross salary of the respondent-wife from April, 2009 is Rs.39,857/-and thus, the income of the petitioner-husband is higher than the income of wife by Rs.20,000/-per month approximately. The judgments cited by the learned counsel for the petitioner do not help him in any manner to advance his argument as in all these judgments, it has been held that the amount awarded under Section 125 Cr.P.C under Hindu Adoptions & Maintenance Act, etc. is adjustable against the amount of award under Section 24 of the Act. There is no dispute with the aforesaid ratio of law as enunciated in these judgments. This Court is also of the aforesaid view that the amount of maintenance awarded under any other proceedings are to be adjusted and taken care of while granting maintenance pendente lite under Section 24 of the Hindu Marriage Act. However, the argument raised by the learned counsel for the petitioner that vide impugned order double maintenance has been granted to the children is fallacious. A perusal of the impugned order would show that the amount of maintenance pendente lite of Rs.10,000/-to both of the children has been granted over and above the amount of Rs.7500/-granted by the Court in the proceedings under the Hindu Adoptions and Maintenance Act. From the order itself, it is clear that the Court has taken care of earlier amount of Rs.7500/- per month granted to the children and it is not a case of grant of double maintenance. Keeping in view the averments made by the parties, the Court has found, as a matter of fact, that the children need more maintenance because of their growing age and the escalation in prices of the commodities and education. The amount of Rs.10,000/-as granted by the District Judge, Rohtak has been granted in addition to the earlier amount. The petitioner has not argued the case on the premise that the amount of maintenance granted to the children under the provisions of Hindu Adoptions and Maintenance Act at Rs.7500/-and Rs.10,000/-(totalling Rs.17,500/-) granted under these proceedings is excessive and on the higher side. The petitioner has not argued the case on the premise that the amount of maintenance granted to the children under the provisions of Hindu Adoptions and Maintenance Act at Rs.7500/-and Rs.10,000/-(totalling Rs.17,500/-) granted under these proceedings is excessive and on the higher side. Rather the argument raised before this Court was that the grant of maintenance of Rs.10,000/-over and above the amount of Rs.7500/- amounts to double maintenance. The other argument of the petitioner that the maintenance could be determined only on the basis of income at the time of filing of the application which in this case was filed in July 2004, is also erroneous. Once it is not disputed that the Court can vary/increase the maintenance pendente lite keeping in view the facts and circumstances of the case, the argument raised by the learned counsel for the petitioner does not survive. This Court does not find any error of jurisdiction in the impugned order passed by the District Judge who while determining the maintenance has taken the income of the parents on the basis of monthly income of the petitioner in April, 2009, as the maintenance pendente lite has been ordered to be paid w.e.f. April, 2009, only and no arrears have been ordered to be paid with effect from any retrospective date. Keeping in view the sufficient income of both the parties, the District Judge, in my view, has rightly held that both the wife and husband were not entitled to maintenance from each other and thus, I find no merit in Civil Revision No.768 of 2010 filed by the petitioner-husband against the order dismissing his counter claim for grant of maintenance pendente lite to him from the respondent-wife. For the reasons recorded above, I find no merit in these petitions and the same are hereby dismissed.