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2018 DIGILAW 1553 (JHR)

Vijay Kumar @ Vijay Kumar, son of late Saju Prasad v. Nilu Kumari, W/o Dr. Vijay Kumar

2018-07-13

AMITAV K.GUPTA

body2018
JUDGMENT : The petitioner has preferred this revision petition challenging the order dated 07.12.2016 passed under Section 24 of the Hindu Marriage Act, 1955 whereby the learned Additional Principal Judge, Family Court, Dhanbad, has granted ad interim maintenance of Rs.30,000/-, to be paid to the O.P. by the petitioner, in T.M. Suit no.436/2013. 2. Learned counsel for the petitioner has assailed the impugned order contending that the awarded ad-interim maintenance is exorbitant. It is argued that the court below has ordered for payment of the excessive amount without appreciating the fact that the Supreme Court, in the case of Kalyan Dey Chowdhury vs. Rita Dey Chowdhury Nee Nandy; AIR 2017 SC 2383 , has observed that 1/4th of the income should be granted as maintenance. 3. It is submitted that the court below has failed to appreciate that the petitioner, who was working as a doctor in Jalan Hospital, was compelled to quit the job on account of the incessant disturbance created by the O.P. at his work place. It is argued that O.P. has filed a case under the Domestic Violence Act against the O.P., therefore she is not entitled to any maintenance. It is canvassed that no material evidence or document has been brought on record, by the O.P./wife, to establish the factum of actual income of the petitioner and the court below has passed the order only on the basis of the statement and allegation made by the O.P. It is urged that since the order has been passed without recording any evidence, hence it is fit to be set aside. 4. The O.P. has appeared in person and submitted that her daughter, aged about 10 years, is under her care. That she has to pay for the educational and other incidental expenses of her daughter and meet the expenses for herself and her daughter’s daily needs. That she does not have any independent source of income, whereas the petitioner is a well reputed doctor having handsome earning from his medical practice. 5. Heard. That she has to pay for the educational and other incidental expenses of her daughter and meet the expenses for herself and her daughter’s daily needs. That she does not have any independent source of income, whereas the petitioner is a well reputed doctor having handsome earning from his medical practice. 5. Heard. At the outset it is evident to take note that provision of Section 24 envisages that in any proceeding under the Act, the spouse who has no independent income sufficient for her or his support may apply to the court to direct the respondent to pay the monthly maintenance as the court may think reasonable, regard being had to the petitioner’s own income and the income of the respondent. The language and words as incorporated in the Section indicates that a wide discretion has been conferred on the court in the matter of an order granting interim maintenance. Although the discretion conferred on the court is wide, the section provides the guideline that while fixing the interim maintenance the court has to give due regard to the income of the respondent and the petitioner’s own income. 6. In this context it is relevant to emphasize that since an order for interim maintenance by its very nature is temporary therefore, a detailed and elaborate exercise by the court is not necessary, but, at the same time, the court while passing an order under Section 24 has to be guided by taking into account all the relevant factors, namely, the income of the petitioner, the social and economic status of the parties. 7. In the case of Rajesh Burman vs. Mitul Chatterjee (2009) 1 SCC 398, the Supreme Court has deliberated and elaborately discussed the meaning of the words ‘maintenance’ and ‘support’. The term “maintenance” is defined in Black’s Law Dictionary (6th Edn., pp. 953-54) thus: “ … The furnishing by one person to another, for his or her support, of the means of living, or food, clothing, shelter, etc. particularly where the legal relation of the parties is such that one is bound to support the other, as between father and child, or husband and wife.” Likewise, the word “support” as defined in the said dictionary (p. 1439) reads as under: “That which furnishes a livelihood; a source or means of living; subsistence, sustenance, maintenance, or living. particularly where the legal relation of the parties is such that one is bound to support the other, as between father and child, or husband and wife.” Likewise, the word “support” as defined in the said dictionary (p. 1439) reads as under: “That which furnishes a livelihood; a source or means of living; subsistence, sustenance, maintenance, or living. In a broad sense the term includes all such means of living as would enable one to live in the degree of comfort suitable and becoming to his station of life. It is said to include anything requisite to housing, feeding, clothing, health, proper recreation, vacation, traveling expense, or other proper cognate purposes; also, proper care, nursing, and medical attendance in sickness, and suitable burial at death.” 8. Thus Section 24 of the Act no doubt talks of maintenance of the wife during the pendency of the proceedings however, it is settled proposition that it cannot be read in isolation and cannot be given restricted meaning to hold that it is the maintenance of the wife alone and no one else. In the instant case it is not disputed that the minor daughter is living with the petitioner consequently, the claim of maintenance by the petitioner will be inclusive of her own maintenance as well as of her daughter. 9. For better appreciation it may be useful to take note of the definition of ‘maintenance’ under Section 3 of the Hindu Adoptions and Maintenance Act, 1956 (for short ‘the Act of 1956’). On reading of Section 3 it is explicit that ‘maintenance’ includes (i) in all cases, provision for food, clothing, residence, education and medical attendance and treatment; (ii) in the case of an unmarried daughter also the reasonable expenses of and incident to her marriage. 10. Learned counsel for the petitioner has relied on the decision rendered in the case of Kalyan Dey Chowdhury Vs. Rita Dey Chowdhury Nee Nandy; AIR 2017 SC 2383 , wherein the matter was regarding the grant of maintenance under Section 25(2) of Hindu Marriage Act. However, in the instant case it is evident, from the exposited facts that the impugned order has been passed under Section 24 of the Hindu Marriage Act. Therefore, the judgment relied upon by the petitioner is of not much help to the petitioner in view of the obtaining facts of the instant case. 11. The petitioner is a practicing doctor. However, in the instant case it is evident, from the exposited facts that the impugned order has been passed under Section 24 of the Hindu Marriage Act. Therefore, the judgment relied upon by the petitioner is of not much help to the petitioner in view of the obtaining facts of the instant case. 11. The petitioner is a practicing doctor. There is no material on record to show that the O.P/wife is gainfully employed. The petitioner has himself admitted that till date he has paid Rs.4,50,150/- as maintenance to the O.P. This shows that the petitioner /husband is a man of means having sufficient income. The court below has considered the entire aspect while granting interim maintenance of Rs.30,000/- p.m. to the O.P. 12. Therefore, in view of the discussions made hereinabove, and reasons assigned, in the considered opinion of this Court, the grant of interim maintenance of Rs.30,000/- per month is neither exorbitant nor excessive consequently, the impugned order does not require any interference by this Court. 13. In the result, this revision is hereby dismissed. 14. Since the matrimonial suit is of the year 2013, the court below shall ensure expeditious disposal of the suit preferably within a period of six months from the date of receipt or production of this order. The parties shall co-operate in expeditious trial of the suit and the court below shall not grant any unnecessary adjournments to either of the parties. Revision dismissed.