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2012 DIGILAW 24 (HP)

Kamlesh Kumari v. Aman Kishore

2012-01-09

SURINDER SINGH

body2012
ORDER The present petition has been preferred by the petitioner-wife under Article 227 of the Constitution of India against the order dated 30.5.2011 passed, in RBT CMA No.53-G/2011/2010 (RBT HMA No.65-G/III/2010), by the learned Additional District Judge-II Kangra at Dharamshala whereby application under Section 24 of the Hindu Marriage Act, 1955, was partly allowed to the extent of payment of litigation expenses to the tune of 4,000/- while declining pendente lite alimony on the ground that the respondent-husband has been directed to pay the maintenance at the rate of 2,000/- to the petitioner-wife and 500/-per month to her daughter Surbhi, under Section 125 of the Code of Criminal Procedure, in observed that the petitioner is not remediless and she could also seek enhancement under Section 127 of the Code which is otherwise pending before the Judicial Magistrate. 2. Heard and gone through the record. 3. The facts disclose that the marriage was solemnized inter se the parties on 6.2.2004 at Harchakkiyan, District Kangra. From this wedlock a female child Surbhi was born, who is presently in the care and custody of the petitioner-wife. There were certain abrasions in married life as such the respondent-husband filed petition for dissolution of marriage, on the grounds of cruelty and desertion, which is resisted and contested by the petitioner-wife. During the pendency of the main petition, she also prayed for maintenance pendente lite at the rate of 5,000/- per month and litigation expenses to the tune of 10,000/-, as she being a poor lady unable to maintain herself. 4. The respondent-husband in reply to this application submitted that she was already granted an amount of 2,500/- (2,000/- to her and 500/- to the minor child) per month by the Judicial Magistrate in the proceedings under Section 125 of the Code. Considering the case of the parties, the learned trial Court did not allow the maintenance pendente lite, but ordered to pay the litigation expenses to the tune of 4,000/-. 5. Considering the case of the parties, the learned trial Court did not allow the maintenance pendente lite, but ordered to pay the litigation expenses to the tune of 4,000/-. 5. In the present petition, the petitioner-wife claimed that the litigation expenses were too meagre and denial of the maintenance pendente lite on the aforesaid ground is wrong and incorrect also on the ground that when the maintenance under Section 125 of the Code was awarded, the minor child of the petitioner was not school going and now she is studying in U.K.G. Thus, as per the status of the respondent, he required to maintain both. It is submitted that the respondent is a Hawaldar in the Army. The details of his salary as on 1.1.2011 have been placed on record showing his pay of 26,001/- per month to which there is no denial. 6. Learned Counsel for the respondent-husband submitted that the respondent has his parents to maintain besides maintaining the petitioner and the child and they are also getting 2,500/-per month. 7. The details of the litigation expenses by the petitioner-wife have not been placed on record. Similarly the respondent has not stated the amount of other liabilities. In fact, marriage entails various rights and obligations, maintenance is one of them. 8. Section 24 of the Hindu Marriage Act, provides for maintenance pendente lite and litigation expenses. On any petition filed under the Hindu Marriage Act, the Court has power to make such interim order as it thinks just. Though, the temporary alimony is not regarded as a matter of right, but is a matter of discretion of the Court. Such discretion however, is not arbitrary, but judicial in character controlled by the more or less well established principles of law. 9. In case there is an order for paying maintenance to the wife under Section 125 of the Code, is no bar to a claim for it pending litigation in a matrimonial case. However, if the wife is given maintenance pendente lite the order under Section 125 of the Code may be kept in abeyance to survive it on ceasing of the operation of the former order. 10. While considering the matter, Courts dealing with interim maintenance may not look into the merits of the petition to assess the amount, but could use it only to assess the conduct of the parties. 11. 10. While considering the matter, Courts dealing with interim maintenance may not look into the merits of the petition to assess the amount, but could use it only to assess the conduct of the parties. 11. Where the parties are living apart and the wife— s means are insufficient to support herself and her children, she is entitled to alimony during pendency of such petition. The fact that the wife is living with her parents and is being maintained by them is no ground to deny interim maintenance. Of course, the award of any amount is only for maintenance under Section 24 of the Hindu Marriage Act and not for her luxury. 12. In the instant case, the maintenance pendente lite is wrongly denied by the learned Additional District Judge on the ground that the amount which has been awarded to the wife under Section 125 of the Code by ignoring the fact that the petition seeking divorce has been filed by the husband is an additional imposition on her in a litigation to defend. She shall have to come all alone from the place of her residence to the District headquarters at Dharamshala which entails, to and fro expenses plus two times meals, besides bus-fare. The litigation expenses awarded could only be sufficient for the witnesses, lawyer— s and typing fee etc., but the amount awarded for litigation expenses may not be sufficient to meet expenses of her travelling to Court on all dates, diet money and also for assistance of some family member to accompany her to attend the Court. Thus, I find lack of proper exercise of judicial discretion in the impugned order passed by the learned trial Court as the above facts were not taken into consideration. 13. Accordingly, for the aforestated reasons, in my opinion, in addition to the maintenance awarded in the proceedings under Section 125 of the Code, the petitioner is also held entitled to the amount of 2,000/- per month and the respondent is under obligation and has a capacity to pay, from the date of filing of the petition under Section 24 of the Hindu Marriage Act before the learned trial Court. Ordered accordingly. However, it is made clear that this monthly interim maintenance shall be effective only during the pendency of the present proceedings in a divorce petition pending inter se the parties till its termination. 14. Ordered accordingly. However, it is made clear that this monthly interim maintenance shall be effective only during the pendency of the present proceedings in a divorce petition pending inter se the parties till its termination. 14. The impugned order stands accordingly modified to the above extent and the present petition stands disposed of, so also the pending applications, if any. Order accordingly.