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2018 DIGILAW 687 (RAJ)

PUSHPKANT v. DEEPTI @ PINKI

2018-03-06

GOPAL KRISHAN VYAS, RAMCHANDRA SINGH JHALA

body2018
JUDGMENT : Gopal Krishan Vyas, J. In this misc. appeal filed under Section 19 of the Family Courts Act, 1984, the appellant-husband Pushpkant is challenging the order dated 8.1.2018 passed by the learned Judge, Family Court, Jalore in Civil Misc. Case No.77/2017 whereby an application filed under Section 24 of the Hindu Marriage Act, 1955 (hereinafter referred to as the HM Act for short) by the respondent wife, is partly allowed by the learned trial court and allowed a sum of Rs.4,000/- as maintenance in favour of the respondent-wife. 2. As per the facts of the case, the appellant filed an application under Section 13 of the HM Act for divorce on the ground of cruelty alleging therein that after his marriage on 3.7.2003 they lived together and from their wedlock, three daughters were born. 3. It is further stated that after birth of 2 twines baby girls on 27.10.2012, the respondent wife started harassing him and committed cruelty time and again and also, false and fabricated FIR at Police Station Jalore was also filed in which serious false allegations were levelled against him. During the pendency of the said application for divorce, an application was moved by the respondent wife Smt. Deepti under Section 24 of the HM Act for expenses and prayed for litigation expense and the expenses for food with direction to the appellant to pay Rs.7,000-8,000/- per month to her. 4. After considering all aspects of the case, the learned Judge, Family Court, Jalore passed an order dated 8.1.2018 whereby maintenance of Rs.4,000/- was allowed in favour of the respondent from the date of filing of the application. 5. In this appeal while challenging the said order, the learned counsel for the appellant argued that there was not specific prayer in the application filed under Section 24 of the HM Act for granting monthly maintenance. The only prayer was made for expenses of Rs.7,000-8,000/-, therefore, in absence of any specific prayer for maintenance, no order was to be passed by the learned Judge, Family Court, but contrary to the prayer, the order has been passed to pay Rs.4,000/- per month, therefore, the order impugned may be quashed. 6. The only prayer was made for expenses of Rs.7,000-8,000/-, therefore, in absence of any specific prayer for maintenance, no order was to be passed by the learned Judge, Family Court, but contrary to the prayer, the order has been passed to pay Rs.4,000/- per month, therefore, the order impugned may be quashed. 6. It is also argued that appellant is earning only Rs.6,700/- out of which he is making payment of Rs.4,800/- per month as per the order passed under Section 125 of the Cr.P.C. and therefore, the learned Judge, Family Court was under obligation to consider said aspect of the matter while passing the order impugned. 7. According to learned counsel for the appellant, the order dated 8.1.2018 is illegal, therefore, same may be quahed. 8. After hearing learned counsel for the appellant, we have perused the order impugned. Admittedly, the appellant has accepted that from the wedlock with respondent wife three daughters were born and all the three minor daughters are living with the wife-mother and admittedly, application under Section 13 of the HM Act was filed by the appellant for divorce on the ground of cruelty, therefore, obviously during the pendency of proceedings under Section 13 of the HM Act, the wife is entitled to get maintenance under Section 24 of the HM Act, so also, to get litigation expenses. It is true that there is no specific prayer for grant of monthly maintenance, but prayer is made for expenses of Rs.7,000-8,000/- and therefore, the learned Judge, Family Court after considering the fact that three minor daughters were living with the respondent wife exercised its jurisdiction under Section 24 of the HM Act so also pass an order that maintenance of Rs.4,000/- be given to the respondent wife. 9. In our opinion, the appellant cannot be permitted to take advantage of hyper-technical ground to deny the maintenance to wife who is maintaining three minor daughters born from their wedlock. It is also worthwhile to observe that proceedings under Section 125 Cr.P.C. is altogether different than the proceedings under Section 24 of the HM Act. It is also true that appellant has taken a ground that he is earning only Rs.6710/- but no documentary evidence is produced by him to show that his earning is only Rs.6710/-. 10. It is also worthwhile to observe that proceedings under Section 125 Cr.P.C. is altogether different than the proceedings under Section 24 of the HM Act. It is also true that appellant has taken a ground that he is earning only Rs.6710/- but no documentary evidence is produced by him to show that his earning is only Rs.6710/-. 10. In view of above admitted facts, we are of the opinion that there is no substance in the argument of learned counsel for the appellant that error has been committed by the learned Family Court, Jalore so as to pass an order for maintenance of Rs.4,000/- per month under Section 24 of the HM Act, therefore, while considering all the aspects of the case including the fact that respondent wife is maintaining three minor daughters and facing proceedings under Section 13 of the HM Act initiated by the appellant for divorce, no case is made out for interference in the order impugned. Hence, this misc. appeal is hereby dismissed.