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Madhya Pradesh High Court · body

2014 DIGILAW 1284 (MP)

Vihang Salgat v. Nidhi Bule

2014-10-09

PRAKASH SHRIVASTAVA

body2014
ORDER 1. Heard finally with consent. 2. This writ petition under Article 227 of the Constitution is at the instance of the applicant husband challenging the order of the Family Court dated 20.12.2013 whereby the Family Court while allowing the respondent's application under section 24 of the Hindu Marriage Act has awarded the interim maintenance and the litigation expenses. 3. In a suit for divorce filed under section 13 of the Hindu Marriage Act, the application for interim maintenance under section 24 of the Act was filed by the respondent wife and the Family Court has allowed the said application by order dated 20.12.2013 and directed the petitioner to pay a sum of Rs.5,000/- per month as interim maintenance to the respondent till the disposal of the suit and further directed payment of lumpsum litigation expenses of Rs.5,000/- in two installments. 4. Learned counsel for petitioner submits that the respondent is the National level athlete and is employed as Junior T. C. in the Railways having independent source of sufficient income, therefore, the Family Court has committed an error in awarding the interim maintenance without considering the income of the respondent. 5. Learned counsel for respondent submits that the Family Court has awarded the interim compensation considering the relative financial position of both the parties and keeping in view the income of the petitioner. 6. Having heard the learned counsel for parties and on the perusal of the record, it is noticed that the Family Court while passing the impugned order has not taken note of the material which was produced by both the parties in respect of the income of the respective parties. The Family Court has only mentioned that the interim maintenance is being awarded keeping in view the standard of living, family circumstances and the income of the parties without even mentioning about their relative standard of living and family circumstances and the respective income and relevant financial position of both the parties. 7. Counsel for petitioner has drawn the attention of this Court to the salary slip of the respondent showing her net income as Rs.18,000/-. As against this, learned counsel for respondent has referred to the salary slip of the petitioner at page 118 of the paper book showing his net earning as Rs.31,125/-. 8. 7. Counsel for petitioner has drawn the attention of this Court to the salary slip of the respondent showing her net income as Rs.18,000/-. As against this, learned counsel for respondent has referred to the salary slip of the petitioner at page 118 of the paper book showing his net earning as Rs.31,125/-. 8. The Supreme Court in the matter of Neeta Rakesh Jain v. Rakesh Jeetmal Jain reported in 2010(III) MPWN 25 (SC) = AIR 2010 SC 3540 has held that although the discretion conferred on the court to grant the interim maintenance is wide, the section provides guidelines 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 the present case, without prima-facie ascertaining the relative income of the parties the Family Court could not have proceeded with awarding the interim maintenance. That apart, the Family Court is also required to look into the incidental and other relative factors like social status, the background from which both the parties come from and the economical dependence of the petitioner and after taking into account all these relevant factors, the court has to arrive at the amount to be awarded as interim maintenance. On the perusal of the impugned order passed by the Family Court, it is found that the above exercise has not been done by the Family Court . 9. Accordingly, the impugned order of the Family Court is set aside with a direction to the Family Court to decide the respondent's application under section 24 of the Hindu Marriage Act afresh in accordance with law. 10. The writ petition is accordingly allowed.