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2012 DIGILAW 692 (PAT)

Prateek Prabhakar v. Prabha Devi

2012-04-27

SAMARENDRA PRATAP SINGH

body2012
ORDER Heard learned counsel for the petitioner and the learned counsel appearing for the respondent. 2. The petitioner has challenged the interim order of Maintenance dated 19.06.2010 granted under Section 24 of the Hindu Marriage Act in Divorce Case No.97 of 2008 passed by Principal Judge, Family Court, Saran at Chapra, whereby learned court directed the petitioner to pay a sum of Rs. 3,000/- (Three thousand) per month to respondent Prabha Devi and Rs.1,000/- (One thousand) per month to the minor son of the respondent besides Rs.500/- (Five hundred) per month by way of litigation cost. 3. It is not in dispute that the petitioner and the respondent are legally wedded husband and wife. It is the case of the respondent that the son was born from the wedlock. 4. During the pendency of the Divorce suit the respondent filed an application under Section 24 of the Hindu Marriage Act for grant of maintenance. Learned Family Judge, Saran at Chapra after hearing the parties directed the petitioner to pay a sum of Rs. 3,000/- (Three thousand) per month to respondent Prabha Devi and Rs.1,000/- (One thousand) per month to the minor son of the respondent besides Rs.500/- (Five hundred) per month by way of litigation cost. 5. The trial court while passing the order took notice of the submission of the respondent that petitioner is a qualified M.B.A. and is employed at Delhi and gets salary of Rs.20,000/- per month and Rs.40,000/- per year from the agricultural land and Rs. 15,000/- per month from the rental of the house. 6. The petitioner controverts the submissions of the respondent. The petitioner does not deny that he is an M.B.A. but submits that he earns only Rs.5,000/- per month besides facilities of boarding and lodging. He denies having rental income or agricultural income worth the same. He submits that in fact the respondent is B.Com. and in good employment. He submits that a Complaint case was filed against him under Section 498 A of I.P.C. at Chapra. The petitioner submits that the learned Principal Judge, Family Court, Chpara did not consider the aspect that the respondent is too in employment. The petitioner further submits that an application under Section 24 of the Hindu Marriage Act would entitle maintenance to a spouse only. Maintenance for a child can be sought only under Section 26 of the Act. The petitioner submits that the learned Principal Judge, Family Court, Chpara did not consider the aspect that the respondent is too in employment. The petitioner further submits that an application under Section 24 of the Hindu Marriage Act would entitle maintenance to a spouse only. Maintenance for a child can be sought only under Section 26 of the Act. In support of his submissions, learned counsel for the petitioner has relied upon a decision in case of Bankim Chandra Roy Vs. Smt. Anjali Roy, reported in AIR 1972 Pat 80 . 7. On the other hand, learned counsel for the respondent submits that the amount earned by way of tuition is only minimal for her survival and her son. The wife cannot sit hand on hand and allow herself and her son to starve. Such minimal earning would not save an uncaring husband from paying maintenance to enable her to lead an affordable living. Furthermore, the petitioner is the only issue of his parents, who are both retired Government servants besides having an ancestral house. The respondent has not even been provided a small space in the house. 8. So far as the first point that no maintenance can be granted to a child under Section 24 of the Hindu Marriage Act, I find substance in the submission of the learned counsel appearing for the petitioner. This Court in case of Bankim Chandra Roy Vs. Smt. Anjali Roy (supra) has held that no maintenance can be sought for children under Section 24 of the Act. Nonetheless, the same does not deprive the wife from filing the application under Section 26 of the Act separately or jointly under Section 24 of the Act for grant of maintenance for children as well. 9. I am not inclined to interfere with the impugned order granting interim maintenance of Rs.3,000/- per month to respondent. However, I strike down the order so far it has allowed additional maintenance of Rs.1,000/- by way of maintenance to the child. The order granting litigation cost of Rs.500/- per month is upheld. The trial court is directed to expedite the hearing of the divorce suit. 10. With the aforesaid modification in the order of the trial court, this application is disposed of. The petitioner would pay the entire arrears within eight months besides current payment, in equal instalments.