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2012 DIGILAW 1566 (JHR)

Ashim Ghosh v. Seema Ghosh

2012-11-01

P.P.BHATT

body2012
Order In the writ petition being W.P. (C) No. 455/2012, the Petitioner-Husband prayed for setting aside the order dated 03012012 passed by the Court of Principal Judge, Family court, Ranchi in M.T.S No.19/2011 whereby & whereunder the learned Family Court has granted an ad interim maintenance of Rs.7000/- to the Respondent-Wife U/s 24 of the Hindu Marriage Act. In the other Writ Petition being W.P. (C) No. 3390/2012 the Petitioner-Wife prayed for enhancement of the ad interim maintenance granted by the order dated 03012012 in M.T.S No. 19 of 2011. 2. Since, the petitioner in both the petitions have challenged the order dated 3rd January, 2012 passed by the court of Principal Judge, Family Court, Ranchi in M.T.S. No. 19 of 2011, it would be just and proper for this Court to dispose of both the writ petitions by a common judgment. In a petition being W.P. (C) No. 455 of 2012, the petitioner-Husband has challenged the said order mainly on the ground that amount of interim maintenance fixed by the court below is excessive and the same has been without taking into consideration the independent income of the petitioner-Husband, whereas, in a petition being W.P. (C) No. 3390 of 2012, the petitioner-Wife has challenged the said order mainly on the ground that the amount of interim maintenance fixed by the court below is not adequate, looking to the responsibility of maintaining herself as well as minor son and, therefore, she has prayed for enhancement of the interim maintenance so fixed by the court. 3. Learned counsel for the Petitioner Husband has challenged the impugned order mainly on the ground that the learned court below has not properly considered the provision of section – 24 of the Hindu Marriage Act, while passing the impugned order and thereby committed an error in fixing the amount of interim maintenance of Rs. 7,000/- to the Respondent-Wife. In support of his contention learned counsel for the petitioner-Husband submitted that the interim maintenance can be granted on the basis of the independent income of the husband but the learned court below has taken into consideration the fact that the petitioner-Husband is proprietor of firm namely “Safety First” at Jamshedpur. 7,000/- to the Respondent-Wife. In support of his contention learned counsel for the petitioner-Husband submitted that the interim maintenance can be granted on the basis of the independent income of the husband but the learned court below has taken into consideration the fact that the petitioner-Husband is proprietor of firm namely “Safety First” at Jamshedpur. However without proper justification and proof by documentary evidences, the court below has passed an order of interim maintenance, which is contrary to section 24 of the Hindu Marriage Act and, therefore the said order is required to be quashed and set aside. 4. Learned counsel for the petitioner in support of her argument cited following judgments: (i) AIR 1958 Raj 322 ; (ii) AIR 1965 HP 12 ; (iii) AIR 1987 Cal 153 ; (iv) AIR 1988 Cal 83 ; (v) AIR 1989 Del 10 ; and (vi) AIR 1964 SC 1317 Learned counsel for the petitioner submitted that in view of the ratio laid down in aforesaid judgments, the court below ought to have considered the facts as described in above judgments and more particularly the income of the petitioner was required to be considered by the court below, but the court below has not taken into consideration the rational amount and, therefore, the court below has committed an error in fixing the interim maintenance. 5. On the other hand, the learned counsel for the Respondent-Wife submitted that the Husband-Petitioner is running a business of fire extinguish known as “Safety First” and he is also maintaining a car bearing No. JH9527 and the same fact is not controverted by the petitioner-Husband before the court below. He further submitted that the petitioner also running a family business a “Sweet Meat Shop” at RIT campus, Jamshedpur. It is further submitted that the interim maintenance, which has been fixed by the court below, is not sufficient for maintenance of Respondent-Wife and her child as her child is admitted at convent school for which sufficient amount is required. In this context, leaned counsel for the Respondent-Wife has referred paragraph 15 of the order, wherein, the relevant discussion has been made with regard to assessment of maintenance. 6. In this context, leaned counsel for the Respondent-Wife has referred paragraph 15 of the order, wherein, the relevant discussion has been made with regard to assessment of maintenance. 6. Learned counsel for the Respondent-Wife has also cited following judgments in support of his argument: (i) AIR 1975 Punjab & Haryana 241; (ii) AIR 1970 M. P. 14; (iii) AIR 1983 Raj 229 ; (iv) AIR 1975 H. P. 18; (v) AIR 1980 Punjab and Haryana 120; (vi) AIR 1976 Kant 215; and (vii) AIR 1972 Pat. 81 7. Considering the aforesaid rival submissions and from perusal of the impugned order as well as the materials produced on record, it appears that the court below has passed an order U/s 24 of the Hindu Marriage Act on a petition filed by the Respondent – Wife for getting interim maintenance. From perusal of the impugned order, it appears that the court below has taken into consideration various aspects, in detail and social and financial status of the Petitioner –Husband while passing the order of interim maintenance. In paragraph 15 of the order, the court below has taken into consideration that the petitioner is a proprietor of a firm ‘Safety First’. Moreover, the petitioner is also having sweet shop, situated at R.T.I. Campus at Jamshedpur, which belongs to his father. It also appears that the court below has also taken note of the fact that the petitioner is also having a vehicle No. – JH9527 that is being used by him. On the basis of these materials, the court below has reached to the conclusion that it is just and proper to pass an order of Rs. 7,000/- for interim maintenance to be paid to the Respondent-Wife. 8. I have perused the judgment cited by the learned counsel for the petitioner-Husband and also the judgment cited by the learned counsel for the Respondent-Wife. From perusal of the said judgments, it appears that while passing the order U/s 24 of the Hindu Marriage Act the court has to exercise the discretion depending upon the circumstances of each particular case and also due weightage is required to be given to the income of the husband for interim maintenance. 9. I have also perused a judgment of Hon’ble Apex Court in the case of Jasbir Kaur Sehgal v. Distt. Judge, Dehradun, reported in (1997) 7 SCC 7 . 9. I have also perused a judgment of Hon’ble Apex Court in the case of Jasbir Kaur Sehgal v. Distt. Judge, Dehradun, reported in (1997) 7 SCC 7 . In Para 8 of the said judgment, it has been held that: “8. ………....no set formula can be laid for fixing the amount of maintenance. It has, in the very nature of things, to depend on the facts and circumstances of each case. Some scope for leverage can, however, be always there. The court has to consider the status of the parties, their respective needs, the capacity of the husband to pay having regard to his reasonable expenses for his own maintenance and of those he is obliged under the law and statutory but involuntary payments or deductions. The amount of maintenance fixed for the wife should be such as she can live in reasonable comfort considering her status and the mode of life she was used to when she lived with her husband and also that she does not feel handicapped in the prosecution of her case. At the same time, the amount so fixed cannot be excessive or extortionate.” 10. The Court cannot be bogged down to intricacies of a protracted trial for fixing maintenance pendente lite and expenses of the proceedings. Otherwise, the very object of the section would be frustrated which is that a party is not handicapped in prosecuting his or her case. But, then in deciding the application under Section 24 of the Act, the court has to act in accordance with sound judicial principles and cannot act in an arbitrary fashion to the prejudice of either of the parties. The following principles would appear to be relevant for the purpose: (1) position and status of the parties; (2) reasonable wants of the claimant (towards food, clothing, shelter, medical attendance and treatment, education and the like); (3) income of the claimant; (4) income of the opposite party; (5) number of persons opposite party is obliged to maintain. 11. In this background, it appears that the court below has rightly and properly considered the evidence at para 15 and reach to the conclusion that the petitioner is a businessman and he is also having motor car No. – JH 9527, which clearly establish the financial status and capability of the petitioner-Husband. Therefore the court below ordered interim maintenance to the tune of Rs. Therefore the court below ordered interim maintenance to the tune of Rs. 7,000/- p.m. to the Respondent-Wife and son. 12. I am of the considered opinion that according to the status of the petitioner-Husband, who is also maintaining a car and also having established business vizaviz the status of the Respondent-Wife, who is also having responsibility to maintain minor son, the amount of interim maintenance of Rs.7000/- fixed by the court below appears to be just and reasonable. In view of above position, the intervention of this Court is not needed, in any of the petition. 13. In view of the above discussion, both the writ petitions {W.P.(C) No.455/2012 and W.P.(C) No.3390/2012} are dismissed without any order as to cost.