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2017 DIGILAW 381 (UTT)

RASHMI v. ANURAG MALKOTI

2017-07-13

RAJIV SHARMA, SHARAD KUMAR SHARMA

body2017
JUDGMENT Per Hon’ble Sharad Kumar Sharma, J. The Legislature in its wisdom, while incorporating Section 24 of the Hindu Marriage Act (hereinafter referred to as ‘Act”), provides for granting subsistence for survival to either of the party to the marriage to avail maintenance and expenses of the proceedings pendente lite. The basic ingredients which are required to be considered by the Court for the grant of pendente lite maintenance are : 1. They are spouse. 2. They have no independent income 3. The income is insufficient to maintain herself or himself. 2. Section 24 of the Act could be invoked on an application to be filed either by wife or husband before competent court seeking direction to the either party to pay to the applicant a monthly maintenance from his or her own income, which the Court feels to be reasonable looking to the respective living conditions of either of spouse. 3. Heard Mr. Karan Anand, learned counsel for the appellant and Mr. R.K.S. Verma, learned counsel for the respondent. 4. This Court on earlier occasion, based on the statement of counsel, expressing their willingness to make an attempt for mediation. The parties were called upon to appear before the Court, in person, and, thus, the Court by the order dated 12th April, 2017, directed the parties to the present Appeal from Order to appear before this Court. 5. The case has been listed today. Both the parties alongwith their counsel are present. But looking to the allegations and counter allegations amongst one another and the attitude as reflected by the parties, who are present in person, apparently, shows that there was no possibility of cutting short the controversy inter se between them by settling the dispute amicably so that they can either live or separate permanently. 6. Later, we also felt that since the Appeal from Order has questioned the adjudication which is to made by the Court is to an application under Section 24 of the Act, for the grant of pendente lite maintenance, which partakes shape of an interlocutory order. That means to say that the principle proceedings under Section 13 of the Act for dissolution of marriage is yet to be decided by the Court below and it has been informed that day after tomorrow date is fixed before the Court below. That means to say that the principle proceedings under Section 13 of the Act for dissolution of marriage is yet to be decided by the Court below and it has been informed that day after tomorrow date is fixed before the Court below. But since the suit before the Court below is at a very initial stage, we, with the consent of the parties proceed to decide the present Appeal from Order only, without effecting the proceedings of the Regular Suit. 7. The parties to the instant appeal, where the wife is questioning the order dated 4th August, 2016, is the order by which the appellant’s Application Paper No. 14-A, filed under Section 24 of the Act, in Original Suit No. 317 of 2013, Anurag Malakoti Vs. Rashmi has been rejected. This Court too initially at the admission stage had not granted any interim order, by way of any direction for the payment of amount as pendente lite maintenance. 8. The facts of the case are that plaintiff /respondent, admittedly, are said to have solemnized the marriage with the appellant according to the Hindu rights and rituals on 13th April, 2008. At the time of marriage, according to the appellant, the husband who is MBA was working in Afia International Company in Dubai as Senior Regional Manager, Sales. According to the appellant, she alleges that he has an earning of Rs. 5 lacs p.m. Wife’s case is that at the time of the marriage, he was working with Syntel Company, Pune and, thereafter, he switched over the job at Dubai According to the wife, it is because of the shifting of the husband to Dubai, they seldom used to keep in touch and communicate with one another. It is due to this reason, misunderstanding increased amongst them. On account of various grounds of cruelty and desertion, Section 13 was filed. The ground of Section 13 is not being dealt or touchedin the present judgment as it will have an effect on the proceedings under Section 13 of the Act pending before the Court below., which is yet to be decided 9. According to the husband, in his objection to paper No. 14-Ga, which was numbered as paper No. 16-A, he submitted that he is not receiving Rs. 5 lacs salary p.m. rather he is receiving 16,960 Dirham, which is equivalent to Rs. According to the husband, in his objection to paper No. 14-Ga, which was numbered as paper No. 16-A, he submitted that he is not receiving Rs. 5 lacs salary p.m. rather he is receiving 16,960 Dirham, which is equivalent to Rs. 2,71,360 of the Indian Currency only, which after deduction being made, the cash, in hand, which comes to him is Rs.2,36,512/-, out of which, he has to make various expenditure as rent, tax, telephone bills, insurance, expenditure of gas and water, etc. Whereas, he stated that his wife, i.e. appellant is working as a P.O. in Bank of Baroda and she was getting a salary of Rs. 22,000/- p.m. at the time of induction into the services, now the salary has increased a lot, hence, she is not entitled for any maintenance as she has sufficient resources to sustain herself. 10. The learned Family Court Dehradun on 4th August, 2016, by the impugned order rejected the application. The Court took into consideration the fact that the wife has got her own earning and also because of the fact that taking into consideration the pay slips submitted by the respondent andalso because of the fact that the respondent had purchased a land valuing Rs. 9,03,100/- on 31st April, 2010, and has giftedthe same to the appellant. Subsequently, the said property was transacted by appellant. However, the learned Court below, taking into consideration the fact that the appellant’s financial condition is not so precarious that she cannot sustain herself, in the light of the provisions contained under Section 24 of the Act, rejected the application. 11. The Hon’ble Apex Court in the case of Gurmail Singh Vs. Bhuchari reported in AIR 1980 P&H 120 has held in paragraph 5 as under :- “5. The learned counsel for the petitioner is under the wrong impression that the husband is required to pay maintenance pendente lite etc only it he has independent income of his own: This is not warranted by the language of Section 24 The words independent income’ therein are applicable at the time when the application for claiming maintenance is made and not subsequently at the time when the same is to be granted. Thus, it will be a question of fact in each case to be decided by the Court as to the income of the husband or the wife against whom the maintenance is going to be awarded. Thus, it will be a question of fact in each case to be decided by the Court as to the income of the husband or the wife against whom the maintenance is going to be awarded. It is nowhere provided that if a person is working with his father’s or any other relation’s farm or any other kind of establishment, he is. not to pay the maintenance pendente lite on the ground that he has no independent income of his own. Even while a person is working with his own family members and relations, it cannot be said that he is having no income as such within the meaning of S. 24 of the Act.” 12. Looking to the facts that the appellant is already working and she is functioning as P.O. in the Bank of Baroda, her claim for pendente lite maintenance will not come under Section 24 of the Act. Do not fall within the ambit of Section 24 of the Act itself. Hence, she is not entitled for any pendente lite maintenance. As the institution of U/S 24 application is to tide away financial crisis during pendency of proceedings under Hindu Marriage Act. 13. The counsel for the appellant placed reliance on the judgment reported in 2010 (12) SCC 242 , Neeta Prakash Jain Vs. Rakesh Jaithmal Jain, wherein, the Hon’ble Apex Court has held that while considering the interim maintenance, when the Court exercising its discretion, it must be guided by the criteria contemplated under Section 24 of the Act, the avenue of resources to either of the parties for survival, has to be considered and should not act for generating income. The Hon’ble Apex Court held out social status has also to be one of the criteria which is to be taken into consideration, which relates to the background from which both the parties have hailed, their economic dependence but in the instant case, the aforesaid ratio would not be applicable because it is not a case which was developed and argued and substantiated by the appellant before the Family Court, Dehradun. Besides this, both are earning. 14. Besides this, both are earning. 14. Owing to the fact that since wife is well placed and is working as PO with Bank of Baroda and has got sufficient resources to maintain herself, this Court feels that the impugned judgment passed by the Family Court rejecting the application under Section 24 of the Act do not suffer from any vices, hence, the same is rejected. Appeal from Order is dismissed confirming the impugned order. 15. Since the Legislature under Section 21 (B) of the Hindu Marriage Act has provided that the proceedings before theFamily Court to be held within stipulated time frame, this Court request the Family Court, Dehradun to decide theOriginal Suit No. 317 of 20013, Anurag Malkoti Vs. Rashmi within a stipulated time frame without grantingunnecessarily adjournment and under no set of circumstance not beyond the period of four months from the date of order, as case is pending since 2013. 16. Subject to the above observation, the appeal fails and is dismissed.