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2019 DIGILAW 1095 (KAR)

Suprita v. Prashant Dattatreyarao Kulkarni

2019-06-04

S.G.PANDIT

body2019
JUDGMENT : S.G. Pandit, J. The petitioner is before this Court challenging the order dated 17.11.2018 passed on IA.No. I in M.C.No.36/2017 on the file of the I Addl. Senior Civil Judge, Bagalkot. 2. The petitioner is wife and respondent is husband. The respondent-husband filed M.C.No.3746/2016 under Section 13(1) (ia) of The Hindu Marriage Act, 1955 (for short 'the Act'). In the said proceedings, the petitioner wife filed IA.No. I under Section 24 of The Hindu Marriage Act, seeking an ad-interim maintenance of Rs.50,000/- per month for food, clothing, shelter and medical expenses and Rs.5,000/- for litigation expenses. In the affidavit filed in support of her application, she stated that prior to her marriage she was working and subsequent to marriage at the instance of respondent-husband, she left the job. As on the date of filing the petition, she had no independent source of income and she was completely dependant on her parents. From the marriage, they have a child aged about 4 years and the child is with the wife and she is taking care of the child. It is further stated that the respondent husband is an Engineer and working in Saskin Tele Communication at Bengaluru and having income of Rs.2,50,000/- per month. The parents of the husband are staying independently at Gulbarga and having their independent source of income. The husband filed objections contending that the wife is not entitled for maintenance. It is stated that petitioner wife hardly cared for respondent's health or happiness. The husband states that the wife got a job in Bengaluru and started working in Silicon Edge Technologies from 01.06.2011. Later on, she shifted to Hexad Info Soft Pvt. Limited, where she was getting very good salary than the petitioner. Now, she can do the job based on her educational qualification as well as she will become a gainful working woman. The husband in his objections states that in October 2015, petitioner wife gave birth to a baby boy. It is stated that wife deserted the husband and he tried all possibilities to bring her back. It is stated that the husband is having aged parents who are suffering from age related ailments. Further, it is stated that the parents of the husband are completely dependant on him. It is stated that wife deserted the husband and he tried all possibilities to bring her back. It is stated that the husband is having aged parents who are suffering from age related ailments. Further, it is stated that the parents of the husband are completely dependant on him. The trial Court on considering the contention of husband and wife, by impugned order dismissed IA.No.I filed by the wife, under Section 24 of The Hindu Marriage Act, 1955. Aggrieved by the same, the wife is before this Court. 3. Heard the learned counsel petitioner-wife and learned counsel for respondent-husband and perused the writ papers. 4. Learned counsel for the petitioner would submit that dismissal of IA.No.I by the trial Court is wholly erroneous and perverse. During the pendency of the petition for divorce, wife filed an application under Section 24 of the Act, seeking maintenance of Rs.50,000/- per month. He submits that the wife has no avocation of her own and she has no independent income. She has to depend on her parents for her daily needs. It is also submitted that 4 years old child is with the wife and she has to look after the child. He further submits that respondent-husband, who is an Engineer, is earning more than Rs.2 Lakhs per month. The wife who has no income of her own, is not able to maintain herself. Under Section 24 of the Act, she is entitled for maintenance as sought in IA.No.I. 5. Per contra, learned counsel appearing for the respondent-husband would submit that the petitioner-wife is not entitled for any maintenance. She is also an Engineer and she is capable of earning and maintaining herself. Further he states that the wife was working and subsequently she has left the job. It is further contended that the respondent-husband has aged parents, who are suffering from old age ailments and he has to look after his parents, which needs substantial amount. Further, he submits that respondent-husband has to pay housing loan installment of Rs.58,000/- per month. Therefore, he would not be in a position to pay any maintenance. 6. On hearing the learned counsels and on going through the writ papers, the only question which arises for consideration is: Whether the trial Court is justified in rejecting IA.No. I filed under Section 24 of the Act, seeking maintenance? The answer is in the negative for the following reasons. 6. On hearing the learned counsels and on going through the writ papers, the only question which arises for consideration is: Whether the trial Court is justified in rejecting IA.No. I filed under Section 24 of the Act, seeking maintenance? The answer is in the negative for the following reasons. 7. The marriage of the petitioner and respondent is not in dispute. Further, it is also not in dispute that the petitioner and respondent have 4 years old boy who is residing with the wife and she is taking care of the child. The marriage of the petitioner and respondent was solemnized on 24.06.2010. Subsequent to marriage, the wife left her job and at present she is not working nor she has any independent source of income. The wife in her affidavit stated that the respondent-husband is earning a handsome salary of Rs.2,50,000/- per month. The respondent husband in his objection statement has not denied the same. The entire objections would not whisper about his salary nor he has denied the averments made by the wife that he is receiving a sum of Rs.2,50,000/- per month as salary. 8. Section 24 of the Act, reads as follows; 24. Maintenance pendent lite and expenses of proceedings. - Where in any proceeding under this Act it appears to the Court that either the wife or the husband, as the case may be, has no independent income sufficient for her or his support and the necessary expenses of the proceeding, it may, on the application of the wife or the husband, order the respondent to pay to the petitioner the expenses of the proceeding, and monthly during the proceeding such sum as, having regard to the petitioner's own income and the income of the respondent, it may seem to the Court to be reasonable; [Provided that the application for the payment of the expenses of the proceeding and such monthly sum during the proceeding, shall, as far as possible, be disposed off within sixty days from the date of service of notice on the wife or the husband, as the case may be.] 9. Section 24 of the Act, entitles parties to the proceedings to seek maintenance if he or she has no independent income sufficient for her or his support, by making an application before the Court. Section 24 of the Act, entitles parties to the proceedings to seek maintenance if he or she has no independent income sufficient for her or his support, by making an application before the Court. The Court while considering the application shall take into consideration the income of the parties and decide whether the applicant is entitled for maintenance. 10. In the case on hand, wife has made an application seeking maintenance of Rs.50,000/- per month. She states that she has no avocation of her own and she has no independent income of her own, which the respondent husband admits in his statement of objections that she has no avocation of her own as on this day. But his submission is that she is capable of earning and maintaining herself being a B.E. Graduate and an Engineer. That itself is not sufficient to deny the maintenance. 11. A plain reading of Section 24 of the Act, shows that the only condition precedent for the grant of interim maintenance to any of the parties to the proceedings under the Act, is that, applicant has no independent income sufficient for her/his support. If it is found that the applicant has sufficient income for her/his support, not entitled for any maintenance. The object under the provision is to provide maintenance to sustain during the pendency of the proceedings and litigation expenses to participate in the proceedings. The object of the provision would be defeated if the interim maintenance is denied during the pendency of the proceedings on the ground that the wife is capable of earning, because she is an engineer and qualified. The only condition is that the applicant should not have independent income sufficient for her decent living. 12. The reason of the learned Family Court Judge that the respondent is an Engineer and she is a working woman and she is also having handsome salary from her job, therefore, she can have source of income, is wholly erroneous and perverse. From the material on record, it is clear that, as on the date of making application, the petitioner-wife was not working and she had no independent income. Admittedly, wife has no avocation and no income of her own. Moreover, the wife is looking after and taking care of 4 years old child. 13. From the material on record, it is clear that, as on the date of making application, the petitioner-wife was not working and she had no independent income. Admittedly, wife has no avocation and no income of her own. Moreover, the wife is looking after and taking care of 4 years old child. 13. While granting maintenance, the Court has to look into the status of the parties and the amount required for a decent living. Under Section 24 of the Act, the Court has judicial discretion to decide the quantum of maintenance taking into consideration the income of the parties. The principle of sustenance gets more heightened when the child is with the petitioner wife. In the case on hand, the wife and child require a minimum sum of Rs.20,000/- per month for a decent living. The respondent husband is getting income of more than Rs.2 Lakhs, which is not denied by the husband and wife has produced material to indicate the same. Hence, I am of the view, that the trial Court committed an error in rejecting IA.No.I filed under Section 24 of the Act. The trial Court was not right in observing that even though the documents are produced to show the income of the husband, the same will have to be considered at the time of evidence. At the time of considering interim application, prima facie the documents will have to be looked into and then decision will have to be arrived at. Hence, the following; ORDER Order dated 17.11.2018 passed on IA.No.I in M.C.No.36/2017 on the file of the I Addl. Senior Civil Judge, Bagalkot, is hereby set aside. IA.No.I filed under Section 24 of Hindu Marriage Act, is allowed. The husband is directed to pay monthly maintenance of Rs.20,000/- towards maintenance for wife from the date of making application before the trial Court. Learned counsel for respondent-husband on instructions submits that husband would deposit the arrears of maintenance within a period of 4 weeks and he would continue to pay monthly maintenance on or before 10th of every month. The wife shall furnish Bank account particulars so as to deposit the maintenance amount. On compliance of deposit of arrears of maintenance, the trial Court shall proceed to dispose of the matrimonial case expeditiously not later than 9 months from the date of deposit of arrears of maintenance. The writ petition is allowed. The wife shall furnish Bank account particulars so as to deposit the maintenance amount. On compliance of deposit of arrears of maintenance, the trial Court shall proceed to dispose of the matrimonial case expeditiously not later than 9 months from the date of deposit of arrears of maintenance. The writ petition is allowed. In view of disposal of the petition, IA.Nos.1 and 2 of 2019 would not survive for consideration.