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Rajasthan High Court · body

2012 DIGILAW 45 (RAJ)

Sunita Tasera v. Lalit Kumar Jagrawal

2012-01-03

PRASHANT KUMAR AGARWAL

body2012
Judgment : 1. This order shall dispose of the application filed by appellant-wife under Section 24 of the Hindu Marriage Act, 1955 (hereinafter to be referred ‘the Act’) by which the appellant has prayed that interim maintenance amount @ Rs.15,000/- per month and other sums as mentioned in the application including litigation expenses may be granted to her from respondent-husband. 2. It is an admitted fact that marriage according to Hindu Rules took place between the parties on 23.5.91 and thus, appellant and respondent are legally married wife and husband and out of their wedlock a son was born, who at present is of the age 9 years and is residing with his mother-appellant. The parties, are living separately since the year 2002. 3. The respondent-husband filed a petition for divorce under Section 13 of the Act against the appellant on the ground of cruelty and desertion. The appellant filed written reply to that petition and the learned trial Court after considering the evidence available on record and hearing the parties allowed the petition by passing impugned judgment and decree dated 29.11.2008 and the marriage between the parties was ordered to be dissolved. Against that judgment and decree, the appellant has preferred this appeal which at present is pending. 4. During the pendency of the appeal, the present application was filed with the averment that the appellant has no source of earning so as to maintain herself and her son, whereas the monthly income of the respondent from various sources is about Rs.2,00,000/-. It was also averred that atleast Rs.15,000/- per month as maintenance, Rs.3,000/- for medicines, Rs.250/-for school fee, Rs.250/-for books and other incidental expenses, Rs.2,500/- per month as rent, counsel’s fee Rs.11,000/- and litigation expenses Rs.1,000/- are required. It was further averred that although Rs.2,000/-per month has been awarded by a competent court under Section 125 Cr.P.C. to the appellant but that amount is not sufficient for the proper maintenance of the appellant and her son and that the respondent is not paying that amount regularly. In support of the application, the appellant filed her affidavit. 5. It was further averred that although Rs.2,000/-per month has been awarded by a competent court under Section 125 Cr.P.C. to the appellant but that amount is not sufficient for the proper maintenance of the appellant and her son and that the respondent is not paying that amount regularly. In support of the application, the appellant filed her affidavit. 5. Reply to the application was filed with the averment that the appellant is residing with her parents and she is earning Rs.20,000/- per month by doing a business of diamond-cutting and, therefore, she is capable to maintain herself and her son, whereas the respondent, who is a lawyer, is earning Rs.5,000/- per month only and he has no other source of income. It was also averred that in compliance of the order made under Section 125 Cr.P.C., the respondent is regularly paying Rs.2,000/- per month as maintenance to the appellant and that amount is sufficient for the proper maintenance of the appellant and her son. The respondent also filed affidavit in support of the reply. 6. I have considered the submissions made on behalf of the respective parties and also gone through the record made available for my perusal as well as the relevant legal provisions and the relevant case law. 7. In the facts and circumstances of the case and more particularly in the light of the admitted facts and the relevant legal position, it has to be considered whether the application filed by the appellant is liable to be allowed and if yes, to what extent? First of all the relevant legal provision i.e. Section 24 of the Act is to be considered which is as below:- “S.24.-Maintenance pendent lite and expenses of proceedings.—Where in any proceeding under this Act it appears to the court that either the wife or the husband, as the case may be, has no independent income sufficient for her or his support and the necessary expenses of the proceeding, it may, on the application of the wife or the husband, order the respondent to pay to the petitioner the expenses of the proceeding, and monthly, during the proceeding such sum as, having regard to the petitioner’s own income and the income of the respondent, it may seem to the court to be reasonable. Provided that the application for the payment of the expense of the proceeding and such monthly sum during the proceeding, shall, as far as possible, be disposed of within sixty days from the date of service of notice on the wife or the husband, as the case may be.” Section 24 of the Act thus provides that in any proceeding under the Act, the spouse who has no independent income sufficient for her or his support may apply to the court to direct the respondent to pay the monthly maintenance as the court may think reasonable, regard being had to the petitioner’s own income and the income of the respondent. 8. It was contended on behalf of the respondent that as the appellant did not move an application under Section 24 of the Act to claim maintenance and litigation expenses before the trial Court, therefore, she is not entitled to file such an application for the first time during the pendency of this appeal. It was contended that during the pendency of an appeal maintenance and other expenses can be claimed by a party only when for that purpose an application was filed during trial and same was allowed in favour of that party. In this regard it was also submitted that as the appellant did not move such an application during trial, it indicates that she was having sufficient means for her and her son’s proper maintenance and therefore, she is not entitled to claim maintenance etc. during the appeal unless it is shown by her that the circumstances have changed. 9. I am of the opinion that application filed under Section 24 of the Act cannot be rejected only on the ground that such an application was not moved during trial. This provision clearly states that where in any “proceeding” under the act it appears to the Court that any of the party to the proceeding is entitled to get maintenance, the Court may allow application filed for that purpose. Thus, the word used is “proceeding”. I am of the view that the word “proceeding”, also includes an appeal filed under the provisions of the Act. The term “proceeding” is a very comprehensive term and generally speaking means a prescribed course of action for enforcing a legal right. Thus, the word used is “proceeding”. I am of the view that the word “proceeding”, also includes an appeal filed under the provisions of the Act. The term “proceeding” is a very comprehensive term and generally speaking means a prescribed course of action for enforcing a legal right. It is not a technical expression with a definite meaning attached to it but one the ambit of whose meaning will be governed by the statute. It indicates a prescribed mode in which judicial business is conducted. In the journey of litigation, there are several stages one of which an appeal. A party to the litigation cannot be deprived from getting benefit under Section 24 of the Act only by the reason that party failed to move such an application during trial. Therefore, the appellant-wife cannot be deprived of getting maintenance, if she is otherwise eligible, only on the ground that she failed to move such an application during trial. Similarly, only by that reason it cannot be presumed that she did not apply for getting maintenance as she has sufficient means to maintain not only herself but her son also. 10. Similarly, the application for maintenance cannot be disallowed by the reason that it has been filed about one year after the filling of the appeal as no time limitation has been provided within which such an application is to be made. A look to Section 24 of the Act makes it clear that such an application can be filed any time during the pendency of the proceedings. 11. It was also contended by learned counsel for the respondent that as the appellant and her son are already getting Rs.2,000/- per month as maintenance in compliance of an order passed under Section 125 Cr.P.C. and, therefore, the appellant is not entitled to again claim interim maintenance under the provisions of the Act. It was contended that if a party has same remedy under different provisions of law, it can seek that remedy under one of them only and not under more than one or under all of them and as the appellant has already chosen a remedy under Section 12 Cr.P.C., she is not entitled to claim further remedy under Section 24 of the Act. It was further submitted that if for any reason, the appellant considers that the amount of Rs.2,000/- per month is not sufficient for her and her sons’ proper maintenance, the proper remedy is under sub-section (3) of Section 125 Cr.P.C. and not to move a separate application during the pendency of this appeal. It was also contended that as no claim for enhancement has been made under that provision, it is a clear indication of the fact that the amount of Rs.2,000/- per month is sufficient for their requirements. 12. No doubt the appellant has a remedy in moving an application under Section 125 (3) Cr.P.C. for enhancement of the maintenance amount which she is already getting but that does not prevent her to file an application under Section 24 of the Act. The two provisions are separate and independent and their scope is different and relief given under one provision cannot deprive a person from getting the same or similar relief under other legal provision if he is otherwise entitled to get that relief under other provision. It is clear that scope of both the provisions is different. Whereas under Section 125 Cr.P.C. wife and minor child are entitled to obtain maintenance only whereas under Section 24 of the Act not only maintenance but also counsel’s fees and litigation expenses can also be obtained. Therefore, the present application cannot be held not maintainable on the ground that the appellant has an alternative remedy to get enhanced maintenance under Section 125 (3) Cr.P.C. 13. It was further contended on behalf of the respondent that under Section 24 of the Act only the spouse can obtain maintenance and not any other person including the child of the parties whereas the appellant has sought maintenance for herself as well as for her son. According to the learned counsel for the appellant maintenance for son of the appellant cannot be granted under Section 24 of the Act. 14. Although, the wordings of Section 24 of the Act do not specifically show that maintenance for child may also be awarded under this provision, but I am of the view that looking to the object of the provision it cannot be restricted to the wife or husband alone. 14. Although, the wordings of Section 24 of the Act do not specifically show that maintenance for child may also be awarded under this provision, but I am of the view that looking to the object of the provision it cannot be restricted to the wife or husband alone. If child of the parties is residing with the party for whom the maintenance has been claimed and that party is maintaining the child of the parties, the Court is competent to award maintenance even under this provision for the child also. Hon’ble Supreme Court in the case of Smt. Jasbir Kaur Sehgal v. District Judge, Dehradun & Ors. reported in AIR 1997 SC 3397 has held that Section 24 of the Act no doubt talks of maintenance of wife during the pendency of the proceedings but this section cannot be read in isolation and cannot be given restricted meaning to hold that it is the maintenance of the wife alone and no one else. Under the provisions of Hindu Adoption and Maintenance Act, 1956, it is the obligation of a person to maintain his minor son if he is unable to maintain himself. Thus, as it is the legal obligation of the respondent to maintain his minor son, but at present he is residing with his mother the appellant, the Court is entitled to award maintenance amount even for son of the parties under Section 24 of the Act. In the case before Hon’ble Supreme Court the un-married daughter of the parties was residing with her mother and in an application filed under Section 24 of the Act, maintenance amount was awarded for un-married daughter of the parties under Section 24 of the Act. In the present case also as son of the parties is residing with the appellant and she is maintaining him, therefore, maintenance amount can be granted for him also under Section 24 of the Act. 15. Now it is to be considered what amount has to be awarded as maintenance to the appellant for herself and her son and also as counsel’s fee and the litigation expenses. 15. Now it is to be considered what amount has to be awarded as maintenance to the appellant for herself and her son and also as counsel’s fee and the litigation expenses. Section 24 of the Act provides that in any proceeding under the Act, the spouse who has no independent income sufficient for her or his support may apply to the court to direct the respondent to pay the monthly maintenance as the court may think reasonable, regard being had to the petitioner’s own income and the income of the respondent. The very language in which the section is couched indicates that wide discretion has been conferred on the court in the matter of an order for interim maintenance. Although the discretion conferred on the court is wide, the section provides the guideline inasmuch as while fixing the interim maintenance the court has to give due regard to the income of the respondent and the petitioner’s own income In other words, in the matter of making an order for interim maintenance, the discretion of the court must be guided by the criterion provided in the section, namely, the means of the parties and also after taking into account incidental and other relevant factors like social status; the background from which both the parties come from and the economical dependence of the petitioner. Since an order for interim maintenance by its very nature is temporary, a detailed and elaborate exercise by the court may not be necessary, but, at the same time, the court has got to take all the relevant factors into account and arrive at a proper amount having regard to the factors which are mentioned in the statute. In the present case there is no material on record to show that the appellant has an independent source of income (except the amount of Rs.2,000/- per month awarded under Section 125 Cr.P.C.) for her and her son’s support and maintenance. Mere assertion by the respondent that the appellant is earning Rs.20,000/-per month by doing a business of diamond cutting is not sufficient to come to a conclusion that she is having a regular source of income. The amount of Rs.20,000/- per month cannot be said to be sufficient looking to the fact that the child is of the age of nine years and he must be studying in a good school. The amount of Rs.20,000/- per month cannot be said to be sufficient looking to the fact that the child is of the age of nine years and he must be studying in a good school. Therefore, the appellant cannot be deprived of from getting the above amounts on ground of her own income. Although, no evidence regarding actual monthly income of the respondent has been produced, but it is an admitted fact that the respondent is a practicing lawyer of at least nine years’ standing and therefore, the stand of the respondent that his monthly income is Rs.5,000/- is inherently improbable. The sum of Rs.2,000/- awarded to the appellant and her son as maintenance under Section 125 Cr.P.C. cannot be said to be sufficient and adequate in view of today’s price index and cost of living. The son of the appellant is a school going boy and he is pursuing his studies in a city like Tonk, therefore, the appellant needs more money to meet several day to day requirements and medical expenses etc. Therefore, an order is required to be passed permitting maintenance allowance to the appellant during the pendency of this appeal. A further order is required to be passed regarding counsel’s fee and litigation expenses. In my view it would be in the interest of justice if an amount of Rs.3,000/- per month is granted as interim maintenance and a lump sum of Rs.5,000/- is awarded as counsel’s fee and litigation expenses. 16. Consequently, the application filed under Section 24 of the Hindu Marriage Act is, partly allowed and it is ordered that the respondent shall pay Rs.3,000/- per month an interim maintenance to the appellant during the pendency of the appeal and that amount shall be payable from the date of filing of the application. Apart from that, a lump sum amount of Rs.5,000/- shall also be paid by the respondent to the appellant as counsel’s fee and litigation expenses. The arrears for the month of ‘February 2010, when the application was filed, to the month of December 2011 and the aforesaid lump sum amount shall be paid on or before 31.01.2012. The respondent is also directed to pay the monthly maintenance allowance @ Rs.3,000/- per month by the 5th of every month from the month of January, 2012 till the final disposal of the appeal. Petition partly allowed.