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2010 DIGILAW 487 (UTT)

RAHUL SAMRAT TANDON v. NEERU TANDON

2010-07-20

NIRMAL YADAV, SUDHANSHU DHULIA

body2010
JUDGMENT Hon’ble Sudhanshu Dhulia, J. : Both these Appeals have been filed against the same order which is order dated 20.3.2010 passed by the learned Judge, Family Court, Dehradun in Misc. Case No. 123 of 2008 on an application moved under Section 24 of the Hindu Marriage Act, 1955 (from hereinafter referred to as the Act of 1955). The first Appeal i.e. A.O. No. 113 of 2010 has been filed by the husband challenging the validity of the maintenance pendentelite the suit given to the wife by the Judge, Family Court, Dehradun and the second Appeal i.e. A.O. No. 237 of 2010 has been filed by the wife challenging the same order on the ground of insufficiency of the maintenance. 2. Since common questions are involved in both the Appeals, they are being dealt and disposed with, by this common order. 3. For the sake of convenience, reference would be made to the appellant and respondent in reference to A.O. No. 113 of 2010 while referring to the dispute in issue. The respondent i.e. the wife had initially raised a preliminary objections regarding the maintainability of the Appeal under Section 19 of the Family Court Act, 1984. According to the respondent, an Appeal can be filed under Section 19 of the Family Courts Act, 1984 only against a judgment or against an order which is not of an interlocutory nature and since the order under challenge is only regarding maintenance, which is pendentelite proceedings, it is necesarily an order of interlocutory nature and therefore the Appeal is not maintainable. 4. A Division Bench of this Court, after hearing the counsel for the contending parties at length, had rejected the above preliminary objections of the respondent vide order dated 31.5.2010. The present two Appeals have been heard and are being disposed of on their merits. 5. The Judge, Family Court, Dehradun vide the said order dated 20.3.2010 had fixed the maintenance at the rate of Rs. 10,000/- per month to be given to the wife till the final disposal of the case and with arrears accumulating from 6.8.2008 i.e. from the date of filing of the Application under Section 24 of the Act of 1955 before the Court concerned. Apart from this, an amount of Rs. 25,000/- was also fixed as litigation expenses. 10,000/- per month to be given to the wife till the final disposal of the case and with arrears accumulating from 6.8.2008 i.e. from the date of filing of the Application under Section 24 of the Act of 1955 before the Court concerned. Apart from this, an amount of Rs. 25,000/- was also fixed as litigation expenses. It is this order, which has been challenged before this Court and the validity of this order is being examined. 6. Brief facts of the case are as follows : The husband had filed a Suit for dissolution of his marriage against his wife, which is still pending before the Family Court and registered as Case No. 415 of 2007 Dr. Rahul Samrat Tandon Vs. Neeru Tandon. Admittedly, the two were married as per Hindu rites and ceremonies on 8.10.1997 and out of their wedlock, a child was born on 22.9.1998, who is presently studying in Dehradun and is presently with the wife. The wife is also working as a teacher in a School in Dehradun. On an application moved by the wife for maintenance pendentelite under Section 24 of the Act of 1955, the Judge, Family Court gave a finding that the total income of the husband as per the record available is Rs. 57,018/- per month, out of which 1/3rd is liable to be given to the wife as maintenance pendentelite and 1/3 of the said amount comes to Rs. 19,000/-. Apart from this, since the child is living with the wife and is being maintained and looked after by the wife, maintenance at the rate of Rs. 11,000/- per month was also determined by the Judge, Family Court, Dehradun. The Judge, Family Court, Dehradun consequently recorded a finding that the wife needs maintenance of Rs. 30,000/- per month in order to maintain herself and her child during the pendency of the Suit. However, at the same time, the Judge, Family Court also recorded a finding that the wife is earning a sum of Rs. 20,000/- per month as a teacher, which is liable to be deducted from the maintenance amount of Rs. 30,000/- and after making this deduction, the Judge, Family Court came to the conclusion that in all fairness a sum of Rs. 10,000/- per month must be given to the wife as maintenance pendentelite under Section 24 of the Act of 1955. 20,000/- per month as a teacher, which is liable to be deducted from the maintenance amount of Rs. 30,000/- and after making this deduction, the Judge, Family Court came to the conclusion that in all fairness a sum of Rs. 10,000/- per month must be given to the wife as maintenance pendentelite under Section 24 of the Act of 1955. Apart from this, a sum of Rs. 25,000/- per month was also ordered to be given as litigation expenses. 7. Learned counsel for the appellant now contends that the parameters laid down under Section 24 of the Act of 1955 have not been followed by the Judge, Family Court, Dehradun; and he has in fact granted maintenance as if he is not granting maintenance in a pendentelite proceeding but a permanent alimony. Therefore, in short the appellant contends that there is not a proper application of mind, nor appreciation of law or fact on the subject of granting maintenance under Section 24 of the Act of 1955 by the Judge, Family Court and since the maintenance has been granted on issues which are not relevant for the purposes of disposal of an application under Section 24 of the Act of 1955, the order dated 20.3.2010 is liable to be set aside. 8. The counsel for the respondent opposing the said contention of the learned counsel for the appellant has also filed an Appeal being A.O. No. 237 of 2010, which is also presently being considered and has stated that the records, which were available with the Judge, Family Court to show that the monthly income of the husband was not Rs. 57,018/- per month, but was Rs. 1,45,000/- per month were not relied upon by the Judge, Family Court and therefore, it is contended that had the relevant records been considered, the maintenance amount would have been much higher than what has been fixed. Apart from this, he also contends that the maintenance has been fixed only for child and there is nothing in favour of the wife and therefore, this order is bad to that extent as well. 9. Heard learned counsel for both the parties and perused the order dated 20.3.2010 passed bys the learned Single Judge, Family Court, Dehradun. 10. Under Section 24 of the Act of 1955, an order of maintenance is only pendentelite proceedings. 9. Heard learned counsel for both the parties and perused the order dated 20.3.2010 passed bys the learned Single Judge, Family Court, Dehradun. 10. Under Section 24 of the Act of 1955, an order of maintenance is only pendentelite proceedings. There are no rigid rules or laws of universal applications, which have to be adhered to while disposing of an application filed under Section 24 of the Act of 1955. Here each case has to be adjudicated by the Judge, Family Court on its merit. Wide and flexible powers have been given to the Judge, Family Court to mould a relief as he thinks fit in the interest of justice. From the perusal of the order, it appears to this Court that while recording the finding of income of Rs. 57,018/- per month as salary of the husband and thereafter assigning 1/3rd of the same i.e. Rs. 19,000/- from the above amount, to the wife appears to be just, particularly in the light of the undisputed facts that their only child is living with the wife, who is also to be maintained and whose schooling and other expenses have to be taken care of by the wife. Therefore, fixing of maintenance of Rs. 11,000/- per month for the child also appears to be just. Thus the needs of the wife and the child have been accrued of Rs. 3,000/- per month. The Judge, Family Court has also taken care of the litigation expenses borne by the wife and has granted Rs. 25,000/- to the wife as litigation expenses. However, keeping in mind the fact that the wife is earning a sum of Rs. 20,000/- per month as a teacher, the Judge, Family Court has adjusted the said amount from the maintenance amount and a sum of Rs. 10,000/- per month (i.e. Rs. 30,000/- – Rs. 20,000 = Rs. 10,000) as maintenance pendentelite proceedings has been earmarked for the wife. This Court finds the determination of the maintenance and expenses to be absolutely just and fair under the facts and circumstances of the case and in the light of the available reocrds. 10,000/- per month (i.e. Rs. 30,000/- – Rs. 20,000 = Rs. 10,000) as maintenance pendentelite proceedings has been earmarked for the wife. This Court finds the determination of the maintenance and expenses to be absolutely just and fair under the facts and circumstances of the case and in the light of the available reocrds. On the same logic, this Court finds that there is no merit in the Appeal of the wife, which is for enhancement of the maintenance for two reasons; firstly, the expenses so fixed have not been finalized, which is only pendentelite proceedings and it is based on the available records, which have so far come in the proceedings before this Court. Secondly it is wrong for the wife to state that nothing has been awarded in her favour. The Judge, Family Court while fixing the maintenance has seen the needs and the expenses of both the wife and his child and has subsequently made a determination thereof and after deducting the amount, which the wife is presently earning has awarded the remaining amount to the wife as maintenance pendentelite proceedings. It is therefore wrong to say that nothing has been awarded in favour of the wife. 11. In view of the aforesaid, this Court finds no merit in both the Appeals and both the Appeals are dismissed as such. The Order dated 20.3.2010 passed by the Judge, Family Court, Dehradun is upheld. 12. No order as to costs.