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2018 DIGILAW 2012 (RAJ)

Shreyans Dhadda v. Shweta Dhadda

2018-09-29

DINESH CHANDRA SOMANI, MUNISHWAR NATH BHANDARI

body2018
JUDGMENT Munishwar Nath Bhandari, J. - Both the parties are present in the court. 2. This misc appeal has been preferred against the order dated 24.11.2017 passed by the Family Court No.1, Jaipur. Cross objections have been preferred by the non-appellant-wife in this appeal. 3. The non-appellant-wife filed a petition under section 13 of the Hindu Marriage Act before the Family Court. Therein, an application under section 24 of the Hindu Marriage Act was filed for grant of interim maintenance. The appellant-husband also preferred an application under section 24 of the Act. Both the applications have been decided by the impugned order. The application preferred by the appellant husband has been dismissed while allowing the application preferred by the non-appellant wife. The Family Court has awarded a sum of Rs. 21,000/- per month as interim maintenance and Rs. 21,000/-towards cost of litigation besides Rs. 500/- per hearing for appearance of the nonappellant wife before the court. 4. Learned counsel for appellant husband submits that no document or evidence was produced to show income of the appellant other than from rent. The rental of Rs. 39078/-is arising out of a property belonging to the appellant's father. Even if the aforesaid is taken to be the income, appellant is maintaining two kids out of the wedlock and spending Rs. 1,25,000/- per year on their education apart from other amount for maintaining them. He is also paying premium of the insurance. The interim maintenance has been ordered in ignorance of the aforesaid. 5. The non-appellant has failed to prove monthly income of Rs. 3 lakh. The appellant has produced income tax returns to show his annual income but ignored by the learned court below. He is not earning Rs. 3 lakh per month. In the light of the aforesaid, impugned order dated 24.11.2017 deserves to be set aside. A reference of the judgment of this court in the case of 'Ramgopal vs. Smt Premlata & anr", SB Cr Revision Petition No.1224/2012, decided on 22.2.2013 has been given to support the argument. 6. Cross objection has been filed by the non-appellant-wife. Learned counsel for the nonappellant wife has opposed the appeal and submits that the appellant is earning not only out of the rent but also from jewellery business. His yearly income may be more than Rs. 40 lakh yet learned court below has awarded a meagre amount of Rs. 6. Cross objection has been filed by the non-appellant-wife. Learned counsel for the nonappellant wife has opposed the appeal and submits that the appellant is earning not only out of the rent but also from jewellery business. His yearly income may be more than Rs. 40 lakh yet learned court below has awarded a meagre amount of Rs. 21,000/- per month as interim maintenance. It may be enhanced by accepting cross objections. The standard of living of both the parties has been discussed by the Family Court. The appellant is having bank accounts in Indusind Bank, HDFC Bank, HSBC Bank, Bangkok Bank. He is a regular visitor to Bangkok and other places. He is possessing ATM and other cards of various banks including Bank of America. It was also stated that he has transferred Rs. 21 lakh and Rs. 7,10,000/- in the account of his father. Taking into consideration the aforesaid, amount of Rs. 21,000/- per month as interim maintenance may be enhanced and, accordingly, non-appellant wife be awarded a sum of Rs. 1 lakh per month as interim maintenance. 7. We have considered rival submissions of the parties and perused the record. 8. Perusal of the application submitted by the non-appellant wife under section 24 of the Act shows specific pleading that appellant is earning a sum of Rs. 3 lakh per month out of his business. It is apart from earning of Rs. 39078/- per month out of rent. The reply to the application has been filed at Annexure-2. In the pleading, appellant has failed to deny his earning of Rs. 3 lakh per month. In absence of denial of the pleading, it has to be taken as admission. Learned Family Court has accordingly proceeded with the matter and passed the impugned order. While filing the appeal, appellant husband did not challenge the finding of the Family Court alleging it to be in violation of the documents produced before it. No reference of the income tax returns has been given for assailing the finding of the Family Court. In view of the above, what remains is the order based on the pleadings of the parties. 9. It is also a fact that non-appellant wife is also earning Rs. 11000/- per month towards rental. She is alleged to be earning Rs. No reference of the income tax returns has been given for assailing the finding of the Family Court. In view of the above, what remains is the order based on the pleadings of the parties. 9. It is also a fact that non-appellant wife is also earning Rs. 11000/- per month towards rental. She is alleged to be earning Rs. 50,000/- per month out of her business but aforesaid was given by the appellant in the reply to the application of the non-appellant. 10. In view of the above, if we take a reasonable view in the matter, then considering the status enjoyed by both the parties, interim maintenance of Rs. 21,000/- per month awarded to the non-appellant wife cannot be said to be excessive or inappropriate. It is true that the appellant is maintaining two kids and spending amount for their education but taking into consideration his income apart from status of the non-appellant, we find no reason to cause interference in the order passed by the court below. 11. The non-appellant has maintained cross objections with a prayer to allow the maintenance as prayed in the application under section 24 of the Hindu Marriage Act. We find that non-appellant is residing in the house where she is not required to pay rent and otherwise earning Rs. 11,000/- per month towards rental. She would be getting Rs. 21,000/- per month towards interim maintenance, totalling Rs. 32,000/- per month. According to us, the interim maintenance need not to be enhanced at this stage. It is more so when non-appellant has maintained a separate application under section 125 CrPC, 1973 which would be decided after taking into consideration the evidence and over all facts of the case thus we do not find any reason to accept the cross objections, rather, maintaining the impugned order dated 24.11.2017, passed by the Family Court, appeal so as the cross objections are dismissed without causing interference therein.