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Rajasthan High Court · body

2019 DIGILAW 1014 (RAJ)

Ashok v. Bharti

2019-04-03

ALOK SHARMA, GOVERDHAN BARDHAR

body2019
JUDGMENT Bardhar, J. -Challenge in the instant appeal filed by the appellant-husband under section 19(1) of the Family Court, 1984 has been made to the order dated 20.02.2019 passed by the learned Judge, Family Court, Bharatpur, whereby the learned Family Court while allowing the application filed by the respondent- wife under section 24 of the Hindu Marriage Act, 1955 ('the Act of 1955' for short) awarded Rs. 8,000/- per month as pendente-lite maintenance, Rs.100/- as expenses for attending the Court for each date and Rs.2500/- as legal expenses to her.Brief facts of the case are that the respondent-wife filed an application under section 24 of the Hindu Marriage Act, 1955 ('the Act of 1955' for short) in the Family Court, Bharatpur against the appellant-husband mentioning therein that her marriage was solemnized with the appellant-husband on 09.05.2005 in Village Gurira, District Bharatpur as per Hindu Rites. The appellant-husband is working as Sales Manager in A.C.E. Fork Sales & Marketing Company, Pinnacle Tower, Suraj Kund, Faridabad and his annual income is Rs.8 lac. In the application the respondent-wife prayed to make payment of Rs. 11,000/- as fee to the Amicus Curiae, Rs. 5000/- expenses towards litigation, Rs. 500/- for attending the court on each date and Rs. 30,000/- per month as maintenance to her. The appellant-husband has filed petition under section 13 of the Act of 1955 against the respondent-wife. Thus, the respondent-wife filed an application under section 24 of the Act of 1955 for pentente-lite maintenance. 2. The appellant-husband filed reply to the application wherein he admitted the factum of solemnization of marriage but denied other allegation levelled against him and his family members. 3. Learned counsel for the appellant argued that respondent-wife concealed the fact in the application filed by her under section 24 of the Act of 1955 that she is receiving Rs. 1500/-per month from 04.06.2011 in the light of order dated 08.06.2012 which was increased to Rs. 2,000/- per month vide order dated 30.03.2016 passed under section 125 Cr.P.C. No evidence was adduced by the respondent- wife that the appellant -husband was working as Manager on the date of filing the application under section 24 of the Act of 1955. The appellant-husband submittedspecific reply wherein he stated that he is unemployed but the learned Family Court erred in misinterpreting the reply and awarded Rs. The appellant-husband submittedspecific reply wherein he stated that he is unemployed but the learned Family Court erred in misinterpreting the reply and awarded Rs. 8,000/- per month as pendente-lite maintenance from the date of submission of the application i.e. 05.07.2018. The order passed by the learned Family Court, Bharatpur is a non-speaking one as no reasons have been assigned for awarding Rs.8,000/- per month pendente-lite maintenance. In support of his submission learned counsel placed reliance upon the judgment of the High Court of Jharkhand delivered in the case of Sangeeta Kumari vs. State of Jharkhand & Anr. 2018 (2) Cr.C.C. 809 and argued that the claimant shall not be entitled to get maintenance simultaneously, rather, he / she would be entitled to get only the higher amount of maintenance out of both the provisions. 5. Heard learned counsel for the appellant-husband, perused the impugned order passed by the learned Family Court and carefully scanned and scrutinized the material made available to us. 6. The appellant-husband has filed the divorce petition under section 13 of the Act of 1955 against the respondent-wife being divorce case no.40/2018 before the learned Judge, Family Court, Bharatpur. The respondent-wife filed an application under section 24 of the Act of 1955 in the aforesaid divorce petition and claimed from the appellant-husband pendente-lite monthly maintenance for herself. 7. In the case of Sanjay Kumar Singh vs. Asha Kumari & Another, (2018) 5 SCC 333 in para no. 9.2 the Hon'ble Apex Court has held ad-infra:- "9.2. Second, consequent upon passing of the maintenance order dated 15.7.2016 under Section 24 of the Act by the Family Court, the order passed by the Family Court, Samastipur under Section 125 CrPC stands superseded and now no longer holds the field. Indeed, this fact was conceded by the learned counsel appearing for the respondent-wife." 8. Indisputably, the respondent-wife is getting maintenance of Rs.2000/- p.m. on the application filed by her under section 125 Cr.P.C. Consequent upon passing of the maintenance order dated 20.02.2019 under section 24 of the Act of 1955 by the learned Family Court, the order passed under section 125 Cr.P.C. stands superseded. The provisions of Section 24 of the Act of 1955 provide for support to be given by the earning spouse in favour of non-earning spouse during the pendency of the proceedings before the Court. The provisions of Section 24 of the Act of 1955 provide for support to be given by the earning spouse in favour of non-earning spouse during the pendency of the proceedings before the Court. The order passed on an application under section 24 of the Act of 1955, is an interim order and discretionary in nature. The impugned order passed by the learned Family Court reveals that there shall be set-off regarding the amount of maintenance received by the respondent-wife under any other provision of law. 9. In view of above, the appeal filed by the appellant-husband is devoid of any merit and accordingly stands dismissed. 10. However, the learned Family Court, Bharatpur is directed to decide the main case No. 40/2018 pending before it preferably within a period of six months on merits.