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2010 DIGILAW 813 (PNJ)

Indu v. Om Parkash Baghel

2010-02-05

RAKESH KUMAR JAIN

body2010
Judgment Rakesh Kumar Jain, J. 1 This order shall dispose of an application, namely, CMM No. 77 of 2009 in CMNo. 56-M of 2004 in FAO No. 4021 of 2004 for maintenance pendente lite and litigation expenses claimed under Section 151 of the Code of Civil Procedure, 1908 (for short CPC) read with Section 24 of the Hindu Marriage Act, 1955 (for short the Act). 2 In brief, the applicant/appellant and non-applicant/respondent were married as per Hindu rites on 1.12.1995 and were blessed with a son, namely, Sanket on 01.10.1997. The respondent/husband filed a petition for divorce under Section 13 of the Act in which applicant/appellant-wife was proceeded against ex-parte and their marriage was dissolved by an ex-parte decree dated 23.11.2002, passed by Additional District Judge, Hisar. An application was filed on 12.02.2003 by the applicant/appellant-wife for setting aside the ex-parte decree which was dismissed by the impugned order dated 06.08.2004. Consequently, applicant/appellant filed the present appeal, namely, FAO No. 4021 of 2004 along with an application under Section 15.1 CPC read with Section 24 of the Act in which it was alleged that the applicant/appellant does not have moveable or immovable property, gold ornaments/jewellery are with the respondent, has no independent income sufficient for her support and expenses for the litigation. It was alleged that respondent is a practicing Doctor by profession with a degree of MBBS, MS and is a famous orthopedic surgeon of Agra having monthly income not less than Rs. 2 lacs per month. It was alleged that she is facing multiple litigation, has no source of income, no dwelling house of her own and is passing her life miserably. Therefore, maintenance pendente lite to the tune of Rs. 20000/- per month and litigation expenses to the tune of Rs. 20000/- was claimed. This application was replied by the fespondent who, besides raising preliminary objections qua its maintainability has alleged that the applicant/appellant has got her own residential house No. 1265/A situated in Housing Board Colony, Sector 15-A, Hisar. It is alleged that she was allotted two houses i.e House No. 1265 and 1265- A, out of which, she has disposed of House No. 1265 but the other house No. 1265-A is still owned by her, which has been rented out. It is alleged that she was allotted two houses i.e House No. 1265 and 1265- A, out of which, she has disposed of House No. 1265 but the other house No. 1265-A is still owned by her, which has been rented out. It is further averred that applicant/appellant had filed Civil Suit No. 154 of 2000 under Section 20 of the Hindu Adoption and Maintenance Act, 1956 on 13.9.2000 in the Civil Court at Hisar on behalf of her minor son as his natural guardian for the grant of maintenance, which has been partly decreed on 21.12.2004 and her son has been held entitled to maintenance allowance of Rs. 3,000/- per month from the date of filing of the suit. It is alleged that since then minor child Sanket has been receiving the said maintenance. It is also averred that the applicant/appellant is a highly educated and having decrees of M.Sc. in Philosophy and B.Ed. who, after renting out her house No. 1265-A situated in Housing Board Colony, Sector 15-A, Hisar has shifted to house No. 1099 in the same colony and is running a coaching centre and also is serving as a school teacher. It is alleged that her monthly income was not less than Rs. 25000/- per month. It is, however, also averred that the respondent had no definite knowledge whether the applicant/appellant is still serving as school teacher or not. It is claimed that the applicant/appellant had also filed an application under Section 125 of the Criminal Procedure Code, 1973 (for short Cr.P.C) in which it was alleged that the monthly income of the respondent was not less than Rs. 5,00,000/- per month whereas in the present application, it has been alleged that it is not less than Rs.2,00,000/-. 3 While, the main application was pending in this Court, the applicant/appellant filed another application, namely, CMM No. 77 of 2009, in order to bring some more facts on record about the income and assets of the respondent/husband. In the said application, the applicant/appellant has alleged that respondent is a famous orthopedic surgeon of Agra, who has recently constructed a huge hospital in the name and style of "Ganga Devi Hospital" over a plot measuring 700 sq. yards in a commercially prime location after purchasing land for a consideration of Rs. In the said application, the applicant/appellant has alleged that respondent is a famous orthopedic surgeon of Agra, who has recently constructed a huge hospital in the name and style of "Ganga Devi Hospital" over a plot measuring 700 sq. yards in a commercially prime location after purchasing land for a consideration of Rs. 26,50,000/- The hospital is four storey building having all modern facilities such as X-ray machines, ICU unit, private wards, general ward and operation theatres. It is a multi- specialty hospital, in which a team of Doctors have been kept on the panel by the respondent in the faculty of ENT, Gynecology, Orthopedic Surgeon, Heart Specialist, Paedreatics etc. There is a paramedical staff of about 50 persons. The income from the hospital would not be less than Rs. 8 lacs per month. It is also alleged that respondent is earning Rs. 1 lac as rent from the medical shops rented out to the Chemists in the hospital compound and other medical tests are also being conducted in the Laboratory of the Hospital. Apart from these, the income is augmented through Canteen Coffee Shops etc. It is also alleged that respondent is living a luxurious life having a fleet of cars, namely, Accent Car bearing No. UP-88-BD-0105, Santro Hyundai bearing No. UP-80-AC-8821, Matiz, Motor-Bikes and 5 Ambulance. His son from the second marriage is studying in DPS School, Agra where admission fee itself is more than Rs. 80,000/-. He has obtained loan of Rs. 50 lacs from Indian Bank, Sanjay Palace, Agra and paying monthly installment of Rs. 1 lac since 2006. He has got many Insurance Policies, FDRs, Shares and Bonds and has invested in Real Estate. With these additional facts, the applicant/appellant has claimed monthly expense to the tune of Rs. 1 lac per month and litigation expenses to the tune of Rs. 50,000/-. Respondent, while replying to the application, namely, CMM No. 77 of 2009 has denied the averments made by the applicant/appellant, but admitted the following facts on an affidavit: 1. The total area of the hospital is 550 square yards. 2; Respondent owns one Accent car and one Amublance. 3. Respondent had taken loan of Rs. 30 lacs from Indian Bank and is paying installment of Rs. 85,000/- per month. The total area of the hospital is 550 square yards. 2; Respondent owns one Accent car and one Amublance. 3. Respondent had taken loan of Rs. 30 lacs from Indian Bank and is paying installment of Rs. 85,000/- per month. 4 After hearing learned counsel for the applicant/appellant-in-person, counsel for the respondent and keeping in view the case pleaded by both the parties on affidavits, I have come to the conclusion that income of the respondent is not less than Rs. 2,00,000/- per month, in any case, since, admittedly, he is paying Rs. 85,000/- per month towards Bank installment. Thus, in my view, the respondent is liable to pay and the applicant/appellant is entitled to receive a sum of Rs. 15,000/- p.m towards maintenance pendente lite from the date of application but as respondent is already paying Rs. 4,000/- per months towards maintenance in a case filed under Section 125 Cr.P.C, the applicant/appellant would be entitled to Rs. 11,000/- per month in this application as she is being held entitled to a total amount of maintenance to the tune of Rs. 15,000/-. Although, the applicant/appellant is now appearing in person yet, she had initially engaged an Advocate and has to come all the way from Agra to argue her case in person, therefore, I award a sum of Rs. 25000/- towards litigation expenses. The amount shall be paid from the date of application, namely, CM No. 56-M-2004 filed under Section 24 of the Act. With these observations, applications, namely, CMM No. 77 of 2009 and CM No. 56-M of 2004 are disposed of.