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Himachal Pradesh High Court · body

2013 DIGILAW 21 (HP)

Neelam Kalia v. Rajesh Kalia

2013-01-03

V.K.Sharma

body2013
JUDGMENT V.K. Sharma, Judge (Oral) The parties to the present petition are wife and husband, respectively. Owing to marital discord between them, the husband has filed a petition for grant of divorce, which is pending in the court of the learned Addl. District Judge, Una, H.P., though further proceedings therein stand stayed, vide order dated 8.10.2007, passed by this court in this petition. 2. It was during pendency of the aforesaid divorce proceedings being HMA No. 3 of 2005, titled Rajesh Kalia Vs. Neelam Kalia that the wife moved an application under Section 24 of the Hindu Marriage Act, 1955 for grant of maintenance pendente lite @ Rs.20,000/- per month, besides claiming a sum of Rs.50,000/- as expenses of the proceedings. However, the learned trial Judge, vide order dated 19.8.2006, though allowed a sum of Rs.5,000/- as litigation expenses, yet declined the prayer for maintenance pendente lite on the ground that the wife was already getting monthly maintenance of Rs.3,000/- under Section 125 of the Code of Criminal Procedure, 1973 (in short ‘Cr.P.C.’), as per orders of the learned Metropolitan Magistrate, Delhi. 3. While moving the application for maintenance pendente lite, the wife stated that at the relevant time monthly income of the husband from all sources as per details given in para 3 of the application, was Rs.77,500/-. Though notice of the application was issued to the husband, yet he failed to file any reply. 4. It was during pendency of the present petition in this court that efforts for amicable settlement between the parties were made by a coordinate Bench of this court. However, the same could not succeed. Vide order dated 9.5.2011 the husband was directed to file an affidavit with regard to his income and allied matters. The affidavit stands filed. In rebuttal, the wife has also filed counter affidavit. 5. Without going into an elaborate discussion of the respective contentions on behalf of the parties with regard to the income of the husband, suffice it to say that the petitioner, who is a married lady, is living separately in the National Capital City of Delhi alongwith minor daughter of the parties, who is stated to be aged 14 years and a student of 10th standard. The husband as per available records, besides being a ‘Baridar’ of Chhinmastika Temple, Chintpurni, District Una, H.P., is also possessed of other movable and immovable properties. 6. The husband as per available records, besides being a ‘Baridar’ of Chhinmastika Temple, Chintpurni, District Una, H.P., is also possessed of other movable and immovable properties. 6. In the facts and circumstances of the case and on an overall view of the matter, I am more than satisfied that the impugned order dated 19.8.2006 cannot be sustained, as it is by now fairly settled that even if maintenance is being paid under Section 125 Cr.P.C. the same though can be taken into consideration while granting maintenance pendente lite under Section 24 of the Hindu Marriage Act, yet it cannot be the sole ground for declining such maintenance. The learned trial Judge has overlooked this aspect, which goes to the root of the matter. 7. Accordingly, while taking all the relevant factors into consideration and on an overall view of the matter, the husband is directed to pay monthly pendente lite maintenance of Rs.5,000/- each to the petitioner and minor daughter of the parties, totaling Rs.10,000/- per month w.e.f. 1.1.2013. However, since admittedly the wife and the child are already getting monthly maintenance of Rs.3,000/- per month, as per orders of the learned Metropolitan Magistrate, Delhi, as noticed hereinabove, the same would be adjustable against the amount of monthly maintenance pendente lite of Rs.10,000/- payable under this judgment, meaning thereby that in addition to the said sum of Rs.3,000/- payable under the orders of the learned Metropolitan Magistrate, Delhi, the wife and the minor daughter of the parties shall get Rs.3,500/- each from the husband as maintenance pendente lite on and w.e.f. 1.1.2013. In addition to the above, the wife shall also be paid an additional sum of Rs.5,000/- by the husband towards expenses of the proceedings. 8. The petition stands disposed of. As a result, all interim orders shall stand vacated. The parties through their learned counsel are directed to appear before the learned.