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Rajasthan High Court · body

2018 DIGILAW 1607 (RAJ)

Sonia Godhwani W/o Shri Hitesh Godhwani v. Hitesh Godhwani S/o Shri Anand Godhwani

2018-08-01

DINESH CHANDRA SOMANI, MUNISHWAR NATH BHANDARI

body2018
JUDGMENT : 1. By this appeal, a challenge is made to the order dated 8.1.2018 where application under Section 24 of Hindu Marriage Act, 1955 (in short the ‘Act of 1955’) was allowed but instead of granting interim maintenance of Rs.50,000/- per month, a sum of Rs.10,000/- has been allowed. It is said to be in ignorance of the income of the non-appellant of Rs.12 lacs per annum. 2. An application for condonation of delay of 53 days has also been filed after giving reasons for the delay. 3. Learned counsel for the appellant submits that the income tax return of the non-appellant was produced to show his income to be Rs.12 lacs per annum. Ignoring the aforesaid, only a sum of Rs.10,000/- per month towards interim maintenance has been awarded, which needs to be enhanced to Rs.50,000/-. 4. Learned counsel for the non-appellant has contested the appeal and submitted that the appellant is highly qualified. She is in possession of qualification of B.Tech. She can very well take an appropriate job to earn sufficient amount. She had in fact taken assignment for some time but left it in between. Taking into consideration the aforesaid, the learned Family Court has taken a balanced view to award a sum of Rs.10,000/- per month as interim maintenance. It is more so when the non-appellant is maintaining his parents while residing at Delhi. In view of the above, the appeal for challenge to the order dated 8.1.2018 may be dismissed. A reference to the judgments of other High Courts in the cases of Smt. Mamta Jaiswal Vs. Rajesh Jaiswal reported in 2001 (1) RCR (Civil) 588, Rupali Gupta Vs. Rajat Gupta reported in 2016 (4) RCR (Civil) 340 and Nisha Jain Vs. Amit Jain : Mat. Appl. (F.C.) 106/2015 decided on 24.8.2016 has been given to support the arguments. 5. We have considered the rival submissions of the learned counsel for the parties and perused the record. It is not disputed that the yearly income of the non-appellant is nearly Rs.12 lacs. 6. It is supported by the income tax return. In the light of the aforesaid, the question comes as to whether award of Rs.10,000/- per month towards interim maintenance is adequate or not. According to the non-appellant, he is maintaining his parents while residing at Delhi and otherwise the appellant is highly qualified. 7. 6. It is supported by the income tax return. In the light of the aforesaid, the question comes as to whether award of Rs.10,000/- per month towards interim maintenance is adequate or not. According to the non-appellant, he is maintaining his parents while residing at Delhi and otherwise the appellant is highly qualified. 7. Learned counsel for the appellant submits that non-appellant’s parents are pensioner thus plea about their maintenance is incorrect. It is further submitted that despite qualification, the appellant could not get a job to survive during pendency of the case before the Family Court. 8. The learned counsel for the non-appellant has referred judgments of Madhya Pradesh and Delhi High Court. The first judgment in the case of Smt. Mamta Jaiswal (supra). Section 24 of the Act has been given interpretation, which is quoted hereinbelow : “6. In view of this, the question arises, as to in what way Section 24 of the Act has to be interpreted. Whether a spouse who has capacity of earning but chooses to remain idle, should be permitted to saddle other spouse with his or her expenditure? Whether such spouse should be permitted to get pendente lite alimony at higher rate from other spouse in such condition? According to me, Section 24 has been enacted for the purpose of providing a monetary assistance to such spouse who is incapable of supporting himself Or herself in spite of sincere efforts made by him or herself. A spouse who is well qualified to get the service immediately with less efforts is not expected to remain idle to squeeze out, to milk out the other spouse by relieving him of his or her own purse by a cut in the nature of pendente lite alimony. The law does not expect the increasing number of such idle persons who by remaining in the arena of legal battles, try to squeeze out the adversory by implementing the provisions of law suitable to their purpose. In the present case Mamta Jaiswal is a well qualified woman possessing qualification like M.Sc. M.C. M.Ed. Till 1994 she was serving in Gulamnabi Azad Education College. It impliedly means that she was possessing sufficient experience. How such a lady can remain without service? In the present case Mamta Jaiswal is a well qualified woman possessing qualification like M.Sc. M.C. M.Ed. Till 1994 she was serving in Gulamnabi Azad Education College. It impliedly means that she was possessing sufficient experience. How such a lady can remain without service? It really puts a big question which is to be answered by Mamta Jaiswal with sufficient congent and believable evidence by proving that in spite of sufficient efforts made by her, she was not able to get service and, therefore, she is unable to support herself. A lady who is fighting matrimonial petition filed for divorce, can not be permitted to sit idle and to put her burden on the husband for demanding pendente lite alimony from him during pendency of such matrimonial petition. Section 24 is not meant for creating an army of such idle persons who would be sitting idle waiting for a 'dole' to be awarded by her husband who has got a grievance against her and who has gone to the Court for seeking a relief against her. The case may be vice versa also. If a husband well qualified, sufficient enough to earn, sits idle and puts his burden on the wife and waits for a 'dole' to be awarded by remaining entangled in litigation. That is also not permissible. The law does not help indolents as well idles so also does not want an army of self made lazy idles. Everyone has to earn for the purpose of maintenance of himself or herself, atleast, has to make sincere efforts in that direction. If this criteria is not applied, if this attitude is not adopted, there would be a tendency growing amongst such litigants to prolong such litigation and to milk out the adversory who happens to be a spouse, once dear but far away after an emerging of litigation. If such army is permitted to remain in existence, there would be no sincere efforts of amicable settlements because the lazy spouse would be very happy to fight and frustrate the efforts of amicable settlement because he would be reaping the money in the nature of pendente lite alimony, and would prefer to be happy in remaining idle and not bothering himself or herself for any activity to support and maintain himself or herself. That cannot be treated to be aim, goal of Section 24. That cannot be treated to be aim, goal of Section 24. It is indirectly against healthyness of the society. It has enacted for needy persons who in spite of sincere efforts and sufficient effort are unable to support and maintain themselves and are required to fight out the litigation jeopardising their hard earned income by toiling working hours.” 9. We find that Section 24 of the Act of 1955 has been worded differently. The Courts are not having power to rewrite the provision as it lies in the domain of legislature. We need to make a distinction in the powers of Court and the legislature. It cannot overlap, rather, to operate in the specified field. The High Court is not having the power to rewrite the provision though it can struck down, if it is not found constitutionally valid. With due respect to Madhya Pradesh High Court and also Delhi High Court, the Section 24 of the Act of 1955 has been virtually rewritten which we cannot accept. Thus, we are unable to accept the judgments cited by the non-appellant. 10. We find that if non-appellant’s parents are pensioner and he is otherwise earning Rs.12 lacs per annum then award of Rs.10,000/- per month cannot be said to be appropriate. Taking qualification of the appellant into consideration, we deem it appropriate to enhance the amount of interim maintenance to Rs.15,000/- per month instead of Rs.10,000/- per month. Learned counsel for the appellant has further made a prayer to allow interim maintenance from the date of application. It has been opposed by the learned counsel for the non-appellant. 11. We find that the award of interim maintenance should be from the date of application because delay in filling the reply or adjudication should not be to the prejudice of the appellant. The interim maintenance should generally be given from the date of application unless there exist exception. Accordingly, we modify the order dated 8.1.2018 of Family Court and award maintenance @ Rs.15,000/- per month from the date of application. 12. The application for condonation of delay has also been considered. There is a delay of 53 days in filing the appeal. It has been properly explained. 13. Accordingly, we modify the order dated 8.1.2018 of Family Court and award maintenance @ Rs.15,000/- per month from the date of application. 12. The application for condonation of delay has also been considered. There is a delay of 53 days in filing the appeal. It has been properly explained. 13. Taking into consideration the aforesaid and as the merit of the case should not be defeated only on the ground of delay, if it is not such, it cannot be condoned and otherwise reason exists. 14. Accordingly, the application under Section 5 of the Limitation Act is also allowed. 15. The appeal is allowed. The order dated 8.1.2018 passed by Family Court is substituted by the order of this Court.