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Rajasthan High Court · body

2013 DIGILAW 1959 (RAJ)

Manju : Ashok Kumar v. Ashok Kumar : Manju (Smt. )

2013-11-08

SANGEET LODHA

body2013
JUDGMENT 1. - These writ petitions are directed against order dated 01.10.2013 passed by the Family Court, Sri Ganganagar, whereby an application preferred by application-Smt. Manju (wife) under Sec. 24 of the Hindu Marriage Act, 1955 (in short "the Act of 1955") has been allowed and non application-Ashok Kumar (husband) has been directed to pay a sum of Rs. 5000/- each as the maintenance pendente lite to the applicant-wife and the child and further to pay her the expenses a sum of Rs. 500/- on each date of hearing. According to the applicant-wife, the amount of interim maintenance awarded by the Family Court is too meagre and not sufficient for her to maintain herself and her child. In these circumstances, she has preferred the writ petition No. 13107/13 seeking enhancement of the amount of maintenance pendente lite. 2. On the other hand, the non application-husband has preferred the writ petition No. 13000/13 aggrieved by the maintenance pendente lite awarded by the Family Court in favour of the applicant-wife as aforesaid. 3. Learned counsel appearing on behalf of the applicant-wife submitted that the Family Court has seriously erred in awarding a meagre amount of Rs. 5000/- each as interim maintenance to the applicant-wife and her son Ashutosh. Learned counsel submitted that the non applicant-husband is an advocate by profession and belongs to a prosperous joint Hindu family having irrigated agriculture land ad measuring 17.353 hectares. It is submitted that the non applicant-husband has the professional income a sum of Rs. 25,000/- per month. That apart, it is submitted that he is also earning the rental income a sum of Rs. 10,000/- per month from the house let out at Purani Abadi, Sri Ganganagar. Learned counsel submitted that the child Ashutosh is studying at Birla Public School, Pilani and his school expenses are more than Rs. 2 lacs per year. Accordingly, it is submitted that the amount of maintenance awarded by the Family Court is too meagre and therefore, deserves to be enhanced adequately. Learned counsel submitted that the amount of maintenance as determined by the Family Court has not been paid by the non applicant-husband till this date and therefore, appropriate directions deserve to be issued for the payment of arrears of maintenance as well. 4. Learned counsel submitted that the amount of maintenance as determined by the Family Court has not been paid by the non applicant-husband till this date and therefore, appropriate directions deserve to be issued for the payment of arrears of maintenance as well. 4. On the other hand, the counsel appearing for the non applicant-husband submitted that the Family Court has failed to consider the documents produced by the non applicant-husband which show that the applicant-wife is earning a sum of Rs. 7,000/- per month. Learned counsel submitted that there was no evidence on record to establish that the non applicant-husband is earning a sum of Rs. 25,000/- per month as professional income. Learned counsel submitted that the non applicant-husband does not own any agriculture land and therefore, the presumption regarding the agriculture income is ex facie erroneous. Learned counsel submitted that the alleged rental income of the non applicant-husband was also not established by producing any evidence on record. Learned counsel submitted that agriculture land so also the residential house belong to Joint Hindu Family and therefore, the income derive therefrom could not have been taken into consideration while determining the amount of maintenance pendente lite. Learned counsel submitted that the order impugned passed by the Family Court solely relying upon the affidavit filed on behalf of the applicant-wife is not sustainable in the eyes of law. Learned counsel submitted that the Family Court has erred in awarding compensation from they date of the application filed on behalf of the applicant-wife ignoring the fact that the matter was pending before the trial Court for mediation since 2008. 5. I have considered the rival submissions and perused the material on record. 6. Indisputably, the purpose behind Section 24 of the Act of 1955 is to provide necessary financial assistance to the party to the matrimonial dispute who has no sufficient means to maintain himself/herself or to bear the expenses of the proceedings. While considering the application for award of interim maintenance, the relevant consideration is the inability of the spouse to maintain himself or herself for want of independent income or inadequacy of the income to maintain at the level of social status of other spouse. 7. Admittedly, the non application-husband is an advocate by profession. It was specifically stated by the applicant-wife in the application preferred that the non applicant-husband is earning a sum of Rs. 25,000/- as professional income. 7. Admittedly, the non application-husband is an advocate by profession. It was specifically stated by the applicant-wife in the application preferred that the non applicant-husband is earning a sum of Rs. 25,000/- as professional income. The averment made as aforesaid was denied by the non applicant-husband in the counter filed, however, the actual monthly income was not disclosed. The existence of the irrigated agriculture land and the house at Purani Abadi, Sri Ganaganagar is also not disputed, however, the stand taken was that the same are ancestral properties. It is pertinent to note that in support of the averments made in the application, the applicant-wife had filed her own affidavit whereas, the non applicant-husband has not filed any counter thereto. 8. No hard and fast rule can be laid down for determination of the amount of interim maintenance. Thus, on overall consideration of the matter, in the opinion of this Court, the interim maintenance a sum of Rs. 5000/- each for applicant-wife and her child determined by the Family Court is just and adequate, which by no stretch of imagination can be said to be excessive in these days of high inflation. 9. Coming to the contention of the learned counsel appearing for the non applicant-husband that the amount of maintenance could have been awarded to the applicant-wife only from the date of the order and not from the date of filing of the application, it is to be noticed that the purpose behind Section 24 of the Act of 1955 is to provide necessary financial assistance during the proceeding to the party to the matrimonial dispute who has no sufficient means to maintain himself/herself or to bear the expenses of the proceedings. In considered opinion of this Court, the expression 'during the proceedings' appearing in Section 24 cannot be given a narrow and restrictive meaning as suggested by the counsel appearing for the respondent that ordinarily the maintenance in terms of the said provision could be allowed only from the date of order. It is also pertinent to note that as per proviso to Section 24 of the Act, the application preferred for payment of the expenses of the proceedings and such monthly sum during the proceedings, as far as possible shall be disposed of by the Court within 60 days from the date of service of notice on the wife or the husband, as the case may be. Obviously, the said proviso to Section 24 has been inserted (by Act No. 49 of 2001 w.e.f. 24.09.2001) for the reason, that the wife or husband, as the case may be, if entitled for maintenance pendente lite or the litigation expenses, is not denied the same for a longer period on account of delayed decision of the application. In this view of the matter, if the application preferred is not disposed of by the Court expeditiously and it remains pending for a longer period, then there is no reason why the applicant should be deprived of the benefits admissible for no fault on his part, merely on account of delayed disposal of the application. Thus, the harmonious construction of the provisions contained in Section 24 of the Act, makes it abundantly clear that ordinarily the maintenance has to be allowed from the date of the application and not from the date of the order. The maintenance during the period of pendency of the application under Sec. 24 of the Act could be denied only for the reasons to be specifically recorded. This Court is of the opinion that pendency of a mediation proceeding cannot be a ground for denying the maintenance to the applicant-wife from the date of filing of the application and therefore, the order impugned passed by the Family Court awarding maintenance from the date of filing of application cannot be faulted with. In the result, both the writ petitions fail, the same are hereby dismissed. The arrear of interim maintenance to be computed in terms of the monthly interim maintenance determined by the Court as aforesaid, shall be paid by the non applicant-husband to the applicant-wife within a period of two months from the date of this order. The non applicant-husband shall continue to pay the maintenance pendente lite to the applicant-wife in terms of the order passed by the Family Court latest by 7th of every month. No order as to costs.Petition dismissed. *******