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2013 DIGILAW 2285 (ALL)

Keerti Shukla v. Deepak

2013-09-12

RAJIV SHARMA, SATISH CHANDRA

body2013
Satish Chandra, J.— The present first appeal has been filed by the appellant under Section 19 of the Family Courts Act, 1984 against the judgment and order dated 27.08.2004, passed by the Family Court, Faizabad rejecting the application filed by the appellant under Section 24 of the Hindu Marriage Act, 1955. On 25.11.2004, a Coordinate Bench of this Court has admitted this appeal by observing that - "In view of a Full Bench decision of this Court in First Appeal No. 17 of 2000 - Smt. Kiran Bala Srivastava vs. Jai Prakash Srivastava - decided on 10.09.2004, an appeal would lie under Section 19, Family Courts Act, 1984, against an order passed under Section 24 of the Hindu Marriage Act for grant of maintenance." This appeal was filed in the year 2004 and it was listed from time to time. List has been revised, but nobody is present on behalf of the respondent, though the name of Sri Manoj Kumar Mishra, Advocate is printed in the cause list. Sri I.D. Shukla, learned counsel for the appellant submits that on 04.02.2001, his client was married with the respondent as per the Hindu rites and rituals. Later, on 09.02.2001, the couple went to Kanpur. On 25.11.2001, the appellant gave birth to a son, which was born out of the wedlock of the couple. It is also alleged by the learned counsel that the respondent has maltreated the appellant and in the year 2003, she was forced to live with her parents. The father of the appellant is a retired person, who is surviving only on the pension. The litigation under Section 9 of the Hindu Marriage Act is pending in the Family Court at Faizabad. Due to financial constrained, the appellant cannot pursue her litigation. So, she has moved an application under Section 24 of the Hindu Marriage Act, which was rejected by the learned trial Court by its impugned order. So, he made a request that the maintenance for litigation may be awarded by looking status of the respondent and his family background. After hearing learned counsel for the appellant and on perusal of the record, it appears that the appellant is an educated, but unemployed lady. So, she has no job in her hand and presently, she is living with her parents along with her child. After hearing learned counsel for the appellant and on perusal of the record, it appears that the appellant is an educated, but unemployed lady. So, she has no job in her hand and presently, she is living with her parents along with her child. The father of the appellant is a retired person, who is surviving only on the pension. There is no other source of income and if other source of income is available to the parents, even then the same is for the entire family including other members of the family. The appellant has no independent source of income. Hence, we are of the view that the Family Court has wrongly rejected the application moved by the appellant, under Section 24 of the Hindu Marriage Act by giving the findings which are general in nature. The appellant was thrown out from the house, as alleged by the learned counsel. So, she was forced to live with her parents. After marriage, no lady would like to live with her parents and brothers. Needless to mention that pendente lite means during the litigation or pending litigation. While considering the application for pendente lite maintenance, the only consideration is inability of the spouse to maintain herself for want of financial means or inadequacy of financial means to maintain at the level of social status of the other spouse from when interim maintenance is sought and not the misconduct of the spouse, as per the ratio laid down in the case of Bigal Parag Dave vs. Parag Labhashankar Dave, AIR 1999 Bom 237 . The same view has been expressed by the Apex Court in the case of Amarjeet Kaur vs. Harbhajan Singh, 2003 (21) LCD 748 (SC). In the instant case, the trial court has refused to grant the interim maintenance to the applicant but without having any proof that she is earning amount, the observations are general in nature. It may be mentioned that Section 24 does not provide any guidelines for determining alimony except the essential reflections, "Such sum as, having regard to the petitioner's own income and the income of the respondent, followed by the expression, "reasonable". Thus, the word "income" and "reasonable" play a dominating part in ascertaining the quantum to be awarded. It may be mentioned that Section 24 does not provide any guidelines for determining alimony except the essential reflections, "Such sum as, having regard to the petitioner's own income and the income of the respondent, followed by the expression, "reasonable". Thus, the word "income" and "reasonable" play a dominating part in ascertaining the quantum to be awarded. Income is measured in terms of money or other benefit periodically received, as per the ratio laid down in the case of Delhi Cloth and General Mills Ltd. vs. S. Paramjit Singh, (1990) 4 SCC 723 . In the case of Dev Dutt Singh vs. Rajni Gandhi, AIR 1984 Del. 320 , it was observed that "the section is not a code of rigid and inflexible rules, arbitrarily ordained to be blindly obeyed, it does not enact any mathematical formulae, it gives wide powers, flexible and elastic to do justice in a given case and leaves everything to the judge's discretion." Finally, the Court has awarded interim maintenance @ Rs.2,000/- per month till the disposal of the suit. In the case of Rita Dutta vs. Subhendu Dutta, AIR 2006 SC 189 , the interim maintenance allowance was awarded @ Rs.3,000/- per month for the appellant and Rs.5,000/- for the son. In the case of Dwarika Prasad Satpathy vs. Bidyut Prava Dixit, (1999) 7 SCC 675 , it was observed that the provisions under Section 125 Cr.P.C. is not to be utilized for defeating the rights conferred by the Legislatures on the destitute women, children or parents who are the victims of the social environment. She is independently entitled to have maintenance for litigation under Section 24 of the Hindu Marriage Act. In the case of Anup Avinash Varad Pande vs. Anusha Anup Varadpande, (2010) DMC 3 (Bom), it was observed that income of the wife means she derives her own independent, separate income or otherwise earns income by way of investments rents, profits or the like from any settled source of income. The sufficiency or otherwise of such income is required to be seen and calculated to grant or reject her claim to maintenance. The sufficiency or otherwise of such income is required to be seen and calculated to grant or reject her claim to maintenance. It would be unjust and reasonable to disallow a woman her claim to maintenance when it is seen that she did not pursue a career or be in service during the subsistence and continuation of her marriage and had taken up a job or service only when the parties are separated. In the case of Amit Kumar Sharma vs. VIth Additional District and Sessions Judge, Bijnour, this Court has held that on an application by wife for maintenance, children can be included by Court. This Court has, while holding that, has relied upon an Apex Court decision reported in AIR 1997 SC 3379, in which the Apex Court has held that "Section 24 no doubt talks of maintenance of wife during pendency of proceedings but the section cannot be read in isolation and cannot be held that it is the maintenance of the wife alone and no one else". In view of above, we set aside the impugned order dated 27.08.2004, passed by the Family Court, Faizabad in Case No. 141/2003 and by looking the status and family background, direct the respondent to pay a sum of Rs.6,000/- as fee of the counsel and Rs.1,000/- per date, towards the conveyance and other expenses as the appellant will have to appear in the Court along with her child. The respondent is also directed to pay Rs.5,000/- per month as an interim maintenance to the appellant and Rs.2,000/- per month for her son from the date of application till the final disposal of the case under Section 9 of the Hindu Marriage Act. With the aforesaid direction, the appeal is allowed, as stated above. _____________