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2016 DIGILAW 111 (HP)

Payal v. Manish Chaudhary

2016-02-25

P.S.RANA

body2016
ORDER : P.S. Rana, Judge. Present civil revision petition is filed against the order dated 15.10.2014 passed by learned Additional District Judge-II Shimla in maintenance pendente lite application No. 83-S/6 of 2014 filed in divorce petition No. HMA 71-S/3 of 2014 titled Manish Chaudhary vs. Payal Sharma. Brief facts of the case 2. Shri Manish Chaudhary filed divorce petition No. HMA 71-S/3 of 2014 titled Manish Chaudhary vs. Payal Sharma under Section 13 of Hindu Marriage Act 1955 on account of cruelty and desertion. It is pleaded that marriage between the parties was solemnised at Shimla on 27.11.2010 as per Hindu rites and customs. It is pleaded that on 19.5.2011 Smt. Payal Sharma without consent and knowledge of Manish Chaudhary shifted to her parents house at Shimla and refused to return to her matrimonial house. It is pleaded that Smt. Payal Sharma did not perform any marital obligations and also used to become violent. It is pleaded that behaviour of Smt. Payal Sharma did not improve despite best efforts on the part of Manish Chaudhary. It is pleaded that Smt. Payal Sharma also took her entire clothes and entire jewellery worth Rs.10 lacs (Rupees ten lacs only). It is pleaded that thereafter Shri Manish Chauhdary requested Smt. Payal Sharma to come to her matrimonial house but she refused to return to her matrimonial house. It is also pleaded that Smt. Payal Sharma also instituted criminal proceedings under Section 498-A of Indian Penal Code. 3. Per contra response filed on behalf of Payal Sharma pleaded therein that Shri Manish Chaudhary is estopped to file divorce petition on account of his own act conduct and acquiescence. It is pleaded that Manish Chaudhary has himself committed crulety upon Smt. Payal Sharma and further pleaded that Manish Chaudhary himself deserted Smt. Payal Sharma. It is pleaded that Manish Chaudhary cannot be allowed to take advantage of his own wrong. It is pleaded that Manish Chaudhary and his family members pressurised Smt.Payal Sharma to bring dowry. It is pleaded that Shri Manish Chaudhary always humiliated Smt. Payal Sharma in her matrimonial house. It is pleaded that Manish Chaudhary has also levelled false allegations upon the character of Smt. Payal Sharma. It is pleaded that Manish Chaudhary is dead drunkard and is womeniser. It is pleaded that Shri Manish Chaudhary always humiliated Smt. Payal Sharma in her matrimonial house. It is pleaded that Manish Chaudhary has also levelled false allegations upon the character of Smt. Payal Sharma. It is pleaded that Manish Chaudhary is dead drunkard and is womeniser. It is pleaded that Manish Chaudhary has also given beatings to Payal Sharma in her matrimonial house mercilessly without any cause of action during night period in intoxicated condition. It is pleaded that Smt. Payal Sharma also filed separate application under Section 12 of Protection of Women from Domestic Violence Act 2005. It is pleaded that Manish Chaudhary and his family members have taken forcibly Istridhan of Smt. Payal Sharma. 4. During the pendency of petition Smt. Payal filed petition under Section 24 of Hindu Marriage Act for grant of maintenance pendente lite allowance and expenses of proceedings. Learned trial Court granted maintenance pendente lite allowance to the tune of Rs.2000/- (Rupees two thousand only) to Smt. Payal Sharma till disposal of divorce petition and also granted Rs. 5000/- (Rupees five thousand only) per month as litigation expenses from the date of filing of petition. 5. Feeling aggrieved against the order passed by learned Additional District Judge-II Shimla Smt. Payal filed the present civil revision petition. 6. Court heard learned Advocate appearing on behalf of revisionist and learned Advocate appearing on behalf of non-revisionist and Court also perused entire record carefuly. 7. Following points arise for determination in civil revision petition:- 1. Whether civil revision is liable to be accepted as mentioned in memorandum of grounds of revision petition? 2. Relief. Findings upon point No.1 with reasons 8. It is well settled law that object behind Section 24 of Hindu Marriage Act providing maintenance pendente lite to a party in matrimonial proceedings is obviously to provide financial assistance to the indigent spouse to maintain herself during the pendency of proceedings and also to have sufficient funds to carry on litigation expenses so that indigent spouse would not suffer due to lack of funds. It is well settled law that a spouse unable to maintain herself is entitled to claim maintenance allowance on the principle of equal status and respect. Provision of Section 24 is beneficial in nature and such power is exercised by Court not only out of compassion but by way of judicial duty so that indigent spouse should not suffer. It is well settled law that a spouse unable to maintain herself is entitled to claim maintenance allowance on the principle of equal status and respect. Provision of Section 24 is beneficial in nature and such power is exercised by Court not only out of compassion but by way of judicial duty so that indigent spouse should not suffer. While granting maintenance pendente lite Court is under legal obligation to evaluate the income of parties. 9. In present case in response to application filed under Section 24 of Hindu Marriage Act before learned trial Court for grant of maintenance pendente lite Manish Chaudhary has admitted his monthly income at the rate of Rs. 15000/- (Rupees fifteen thousand only). Court is of the opinion that one third income is sufficient for maintenance allowance keeping in view the status of parties. 10. There is no evidence on record in order to prove that revisionist Payal is earning from other sources also. Although learned trial Court has mentioned in para 10 of order announced in application No. 83-S/6 of 2014 that income of Manish Chaudhary is Rs. 50,000/- (Rupees fifty thousand only) per month as salary but Court is of the opinion that mistake in para No. 10 of order is purely clerical in nature. There is no admission on behalf of Manish Chaudhary that his monthly income is Rs. 50,000/- (Rupees fifty thousand only) per month. On contrary Manish Chaudhary has admitted in response that his monthly income is Rs. 15000/- (Rupees fifteen thousand only). It is well settled law that facts admitted need not be proved under Section 58 of Indian Evidence Act 1872. 11. In view of the fact that Manish Chaudhary has admitted his monthly income as Rs. 15000/- (Rupees fifteen thousand only) per month when he filed response to petition under Section 24 of Hindu Marriage Act Court is of the opinion that learned trial Court has granted pentente lite maintenance allowance to Smt. Payal on lesser side. Court is of the opinion that enhancement of maintenance allowance to the extent of 1/3rd salary of Manish Chaudhary is essential in the ends of justice in present case keeping in view the status of parties. There is no material on record that Smt. Payal is gainfully employed somewhere. There is no material on record that Smt. Payal has other source of income. There is no material on record that Smt. Payal is gainfully employed somewhere. There is no material on record that Smt. Payal has other source of income. In view of above stated facts point No. 1 is answered partly in yes and partly in no. Point No. 2 (Relief) 12. In view of findings on point No.1 above revision petition is partly allowed. Maintenance pendente lite allowance granted by learned trial Court to the extent of Rs.2000/- (Rupees two thousand only) is enhanced to Rs.5000/- (Rupees five thousand only) w.e.f. from the date of filing of application under Section 24 of Hindu Marriage Act till disposal of divorce petition by learned trial Court. Order of learned trial Court is modified to this extent only. File of learned trial Court along with certified copy of this order be sent back for compliance. Civil revision petition is disposed of. Parties are directed to appear before learned trial Court on 15.3.2016. Pending miscellaneous application(s) if any stands disposed of.