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2019 DIGILAW 1285 (HP)

Yashu Priya v. Vinay Guleria

2019-09-02

SANDEEP SHARMA

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JUDGMENT : Sandeep Sharma, J. By way of the petitions at hand, order dated 11.5.2016 passed by learned District Judge, Shimla, Himachal Pradesh in Case No. 42-S/3 of 2014 titled Vinay Guleria vs. Ms. Yashu Priya has been laid challenge to by both the parties. Vide aforesaid order, a sum of Rs.23,500/- per month has been granted as maintenance pendente lite in favour of the wife besides a sum of Rs.15,000/- as litigation expenses. 2. By way of CMPMO No. 275 of 2016, wife-Yashu Priya has sought enhancement of the maintenance pendente lite to Rs.35,000/- per month besides Rs.10,000/- per month as residential charges at Shimla and Rs. 21,000/- as litigation cost under S.24 of the Hindu Marriage Act. 3. By way of CMPMO No. 482 of 2016, husband-Vinay Guleria has sought quashment of order dated 11.5.2016. 4. Having heard learned counsel for the parties and perused the material available on record, vis-a-vis reasoning assigned by the learned Court below while passing impugned order, this Court finds no illegality or infirmity in the impugned order, as such, same calls for no interference. 5. For the sake clarity, parties would be referred to as mentioned in CMPMO No. 275 of 2016. Respondent has filed a petition under S.13 of the Hindu Marriage Act, in which an application under S.24 of the Hindu Marriage Act came to be filed on behalf of the petitioner claiming that since she had no independent source of income, she may be provided maintenance pendente lite at the rate of Rs.35,000/- per month. Apart from above, she also claimed Rs.10,000/- as residential charges and Rs.21,000/- as litigation expenses. Record reveals that though petitioner made an attempt to prove on record that respondent was earning Rs.90,000/- per month but learned Court below, in the totality of evidence led on record by petitioner, arrived at a conclusion that total earning of the respondent is not more than Rs.82,619/-. Learned court below also found from the record that a sum of Rs.38,729/- out of total Rs.82,619/- is being deducted on account of statutory deductions. Learned Court below further noticed that petitioner is getting Rs.20,000/- per month from the respondent in proceedings under the Protection of Women from Domestic Violence Act, 2005, initiated at Sarkaghat and, accordingly, awarded another sum of Rs.23,500/- per month as maintenance pendente lite from the date of application. Learned Court below further noticed that petitioner is getting Rs.20,000/- per month from the respondent in proceedings under the Protection of Women from Domestic Violence Act, 2005, initiated at Sarkaghat and, accordingly, awarded another sum of Rs.23,500/- per month as maintenance pendente lite from the date of application. Learned Court below also awarded Rs.15,000/- as litigation expenses. 6. Mr. Vikrant Thakur, Advocate appearing for the respondent, strenuously argued that since there is ample evidence on record that the petitioner is a Civil Engineer and was rendering her services as Assistant Manager with Axis Bank, learned Court below ought not have awarded amount under S.24 of the Hindu Marriage Act, especially when petitioner was already in receipt of Rs.20,000/- per month in proceedings under the Protection of Women from Domestic Violence Act, 2005. Mr. Thakur further contended that though there was no occasion at all for learned Court below to award amount under S.24 of the Hindu Marriage Act, in view of the order already passed in proceedings under the Protection of Women from Domestic Violence Act, 2005, but even otherwise also, maintenance pendente lite awarded under S.24 is on higher side, as such, same needs to be modified. Mr. Thakur further contended that the petitioner has not been able to prove that at the time of filing of petition under S.13 of the Hindu Marriage Act, respondent was drawing salary of Rs.90,000/- per month, rather, it stands duly proved on record that a sum of Rs.38,729/- was being regularly deducted from monthly salary of the respondent, meaning thereby that respondent was getting Rs.43,890/- in hand at that time, out of which he was paying rent of Rs.10,000/- per month and Rs.10,000/- was being paid into loan account. Mr. Thakur argued that out of remaining amount, Rs.23,500/-has been ordered to be paid as maintenance pendente lite to the petitioner, as such, respondent is left with no money to maintain himself. 7. Mr. R.K. Bawa, learned Senior Advocate, duly assisted by Mr. Amit Kumar Dhumal, Advocate, appearing for the petitioner, while seeking dismissal of the petition filed by respondent, prayed that the petition filed by petitioner may be allowed and amount awarded by learned Court below may be enhanced. Mr. 7. Mr. R.K. Bawa, learned Senior Advocate, duly assisted by Mr. Amit Kumar Dhumal, Advocate, appearing for the petitioner, while seeking dismissal of the petition filed by respondent, prayed that the petition filed by petitioner may be allowed and amount awarded by learned Court below may be enhanced. Mr. Bawa, learned Senior Advocate strenuously argued that no material evidence ever came to be placed on record to prove the earning, if any, of the petitioner, rather, there is ample evidence, suggestive of the fact that the petitioner was compelled to leave her job by the respondent on account of matrimonial dispute. Mr. Bawa, learned Senior Advocate further contended that a sum of Rs.23,500/- awarded by learned Court below on account of maintenance pendente lite is on lower side, keeping in view total earning of the respondent, who has otherwise unnecessarily dragged the petitioner to the court for dissolution of marriage. 8. Needless to say, provisions of S.24 of the Hindu Marriage Act, empower court in any proceedings under the Act ibid to order monthly maintenance, if it appears to the Court that the party applying for the same has no independent/sufficient income for his or her support. Right of wife for maintenance under S. 24 is definitely independent of her right of maintenance under other provisions of law, but definitely while determining the amount of maintenance under S.24 of the Act ibid, courts are required to take into consideration the amount of compensation, if any, awarded under the other provisions of law. Right of wife for maintenance under S.24 of eth Act ibid is an incident of the status or estate of matrimony and since she on account of compelling circumstances is bound to live separately, it is the duty of the husband to defray the expenditure, if any, incurred by the wife for maintaining herself and towards litigation expenses. Moreover, order for maintenance pendente lite or cost of proceedings is not permanent rather, same is conditional depending upon circumstances of the applicant, who has filed application specifically stating therein that he/she has no independent source of income for his/her support and to meet necessary expenditure of the proceedings. 9. Moreover, order for maintenance pendente lite or cost of proceedings is not permanent rather, same is conditional depending upon circumstances of the applicant, who has filed application specifically stating therein that he/she has no independent source of income for his/her support and to meet necessary expenditure of the proceedings. 9. True it is that in the case at hand, respondent had been paying a sum of Rs.20,000/- per month to the petitioner in order passed under the Protection of Women from Domestic Violence Act, 2005 at Sarkaghat but learned Court below, while passing impugned order, under S.24 of the Act ibid has specifically clarified that the petitioner is entitled to get maintenance pendente lite under S.24 of the Act ibid or under provisions of the Protection of Women from Domestic Violence Act, 2005, whichever is higher, meaning thereby she would not be entitled to a sum of Rs.20,000/- awarded in her favour in proceedings under the Protection of Women from Domestic Violence Act, 2005, because, admittedly, in the proceedings under S.24 she has been awarded a sum of Rs.23,500/- per month, which is definitely higher than the amount awarded under other proceedings at Sarkaghat. 10. Apart from above, this Court finds from the record that the factum with regard to receipt of RS.82,619/- as monthly salary never came to be disputed by the respondent, rather, he failed to dispute the documents adduced on record by the petitioner, with regard to statutory deductions made out of aforesaid amount, as such, learned Court below rightly arrived at a conclusion that a sum of Rs.82,619/- is being received by respondent as salary but thereafter, learned Court below, while determining maintenance under S.24, specifically concluded that a sum of Rs.38,729/- is being deducted from the salary of the respondent on account of statutory deductions. 11. 11. Though, in the case at hand, attempt has been made by respondent to show that the petitioner was in job with Axis Bank as Assistant Manger, but that could not be a ground for the learned Court below to reject the claim of the petitioner because, admittedly, nothing came to be proved on record that at the time of passing impugned order, petitioner was in receipt of some amount as salary from any organisation, rather, factum with regard to leaving the job by petitioner has been virtually acknowledged by the respondent, who has categorically stated that the petitioner was working as an Assistant Manager. Mere acquisition of higher education by an applicant, cannot be a ground to disentitle him/her from claiming maintenance under S.24 of the Act ibid, because, in case applicant succeeds in proving that he/she has no independent source of income to maintain himself/herself, court on his/her application is bound to grant maintenance pendente lite under S.24, taking into consideration the income of the person, from whom, such, maintenance is being claimed. 12. So far claim of the petitioner is concerned, this court finds that the respondent is getting Rs.43,890/- after statutory deductions, out of which a sum of Rs.23,500/- has been ordered to be paid to her as maintenance pendente lite. Since respondent resides in Shimla in rented accommodation and he has a mother to look after, he cannot be compelled to pay the amount more than what has been awarded by learned Court below, because, in that case, respondent would be left with no amount to sustain himself. 13. In view of above, this court finds no merit in both the petitions, which are accordingly dismissed. Order passed by learned Court below is upheld. Pending applications, if any, are disposed of. Interim directions, if any, stand vacated. JUDGMENT : Sandeep Sharma, J. By way of the petitions at hand, order dated 11.5.2016 passed by learned District Judge, Shimla, Himachal Pradesh in Case No. 42-S/3 of 2014 titled Vinay Guleria vs. Ms. Yashu Priya has been laid challenge to by both the parties. Vide aforesaid order, a sum of Rs.23,500/- per month has been granted as maintenance pendente lite in favour of the wife besides a sum of Rs.15,000/- as litigation expenses. 2. Yashu Priya has been laid challenge to by both the parties. Vide aforesaid order, a sum of Rs.23,500/- per month has been granted as maintenance pendente lite in favour of the wife besides a sum of Rs.15,000/- as litigation expenses. 2. By way of CMPMO No. 275 of 2016, wife-Yashu Priya has sought enhancement of the maintenance pendente lite to Rs.35,000/- per month besides Rs.10,000/- per month as residential charges at Shimla and Rs. 21,000/- as litigation cost under S.24 of the Hindu Marriage Act. 3. By way of CMPMO No. 482 of 2016, husband-Vinay Guleria has sought quashment of order dated 11.5.2016. 4. Having heard learned counsel for the parties and perused the material available on record, vis-a-vis reasoning assigned by the learned Court below while passing impugned order, this Court finds no illegality or infirmity in the impugned order, as such, same calls for no interference. 5. For the sake clarity, parties would be referred to as mentioned in CMPMO No. 275 of 2016. Respondent has filed a petition under S.13 of the Hindu Marriage Act, in which an application under S.24 of the Hindu Marriage Act came to be filed on behalf of the petitioner claiming that since she had no independent source of income, she may be provided maintenance pendente lite at the rate of Rs.35,000/- per month. Apart from above, she also claimed Rs.10,000/- as residential charges and Rs.21,000/- as litigation expenses. Record reveals that though petitioner made an attempt to prove on record that respondent was earning Rs.90,000/- per month but learned Court below, in the totality of evidence led on record by petitioner, arrived at a conclusion that total earning of the respondent is not more than Rs.82,619/-. Learned court below also found from the record that a sum of Rs.38,729/- out of total Rs.82,619/- is being deducted on account of statutory deductions. Learned Court below further noticed that petitioner is getting Rs.20,000/- per month from the respondent in proceedings under the Protection of Women from Domestic Violence Act, 2005, initiated at Sarkaghat and, accordingly, awarded another sum of Rs.23,500/- per month as maintenance pendente lite from the date of application. Learned Court below also awarded Rs.15,000/- as litigation expenses. 6. Mr. Learned Court below further noticed that petitioner is getting Rs.20,000/- per month from the respondent in proceedings under the Protection of Women from Domestic Violence Act, 2005, initiated at Sarkaghat and, accordingly, awarded another sum of Rs.23,500/- per month as maintenance pendente lite from the date of application. Learned Court below also awarded Rs.15,000/- as litigation expenses. 6. Mr. Vikrant Thakur, Advocate appearing for the respondent, strenuously argued that since there is ample evidence on record that the petitioner is a Civil Engineer and was rendering her services as Assistant Manager with Axis Bank, learned Court below ought not have awarded amount under S.24 of the Hindu Marriage Act, especially when petitioner was already in receipt of Rs.20,000/- per month in proceedings under the Protection of Women from Domestic Violence Act, 2005. Mr. Thakur further contended that though there was no occasion at all for learned Court below to award amount under S.24 of the Hindu Marriage Act, in view of the order already passed in proceedings under the Protection of Women from Domestic Violence Act, 2005, but even otherwise also, maintenance pendente lite awarded under S.24 is on higher side, as such, same needs to be modified. Mr. Thakur further contended that the petitioner has not been able to prove that at the time of filing of petition under S.13 of the Hindu Marriage Act, respondent was drawing salary of Rs.90,000/- per month, rather, it stands duly proved on record that a sum of Rs.38,729/- was being regularly deducted from monthly salary of the respondent, meaning thereby that respondent was getting Rs.43,890/- in hand at that time, out of which he was paying rent of Rs.10,000/- per month and Rs.10,000/- was being paid into loan account. Mr. Thakur argued that out of remaining amount, Rs.23,500/-has been ordered to be paid as maintenance pendente lite to the petitioner, as such, respondent is left with no money to maintain himself. 7. Mr. R.K. Bawa, learned Senior Advocate, duly assisted by Mr. Amit Kumar Dhumal, Advocate, appearing for the petitioner, while seeking dismissal of the petition filed by respondent, prayed that the petition filed by petitioner may be allowed and amount awarded by learned Court below may be enhanced. Mr. 7. Mr. R.K. Bawa, learned Senior Advocate, duly assisted by Mr. Amit Kumar Dhumal, Advocate, appearing for the petitioner, while seeking dismissal of the petition filed by respondent, prayed that the petition filed by petitioner may be allowed and amount awarded by learned Court below may be enhanced. Mr. Bawa, learned Senior Advocate strenuously argued that no material evidence ever came to be placed on record to prove the earning, if any, of the petitioner, rather, there is ample evidence, suggestive of the fact that the petitioner was compelled to leave her job by the respondent on account of matrimonial dispute. Mr. Bawa, learned Senior Advocate further contended that a sum of Rs.23,500/- awarded by learned Court below on account of maintenance pendente lite is on lower side, keeping in view total earning of the respondent, who has otherwise unnecessarily dragged the petitioner to the court for dissolution of marriage. 8. Needless to say, provisions of S.24 of the Hindu Marriage Act, empower court in any proceedings under the Act ibid to order monthly maintenance, if it appears to the Court that the party applying for the same has no independent/sufficient income for his or her support. Right of wife for maintenance under S. 24 is definitely independent of her right of maintenance under other provisions of law, but definitely while determining the amount of maintenance under S.24 of the Act ibid, courts are required to take into consideration the amount of compensation, if any, awarded under the other provisions of law. Right of wife for maintenance under S.24 of eth Act ibid is an incident of the status or estate of matrimony and since she on account of compelling circumstances is bound to live separately, it is the duty of the husband to defray the expenditure, if any, incurred by the wife for maintaining herself and towards litigation expenses. Moreover, order for maintenance pendente lite or cost of proceedings is not permanent rather, same is conditional depending upon circumstances of the applicant, who has filed application specifically stating therein that he/she has no independent source of income for his/her support and to meet necessary expenditure of the proceedings. 9. Moreover, order for maintenance pendente lite or cost of proceedings is not permanent rather, same is conditional depending upon circumstances of the applicant, who has filed application specifically stating therein that he/she has no independent source of income for his/her support and to meet necessary expenditure of the proceedings. 9. True it is that in the case at hand, respondent had been paying a sum of Rs.20,000/- per month to the petitioner in order passed under the Protection of Women from Domestic Violence Act, 2005 at Sarkaghat but learned Court below, while passing impugned order, under S.24 of the Act ibid has specifically clarified that the petitioner is entitled to get maintenance pendente lite under S.24 of the Act ibid or under provisions of the Protection of Women from Domestic Violence Act, 2005, whichever is higher, meaning thereby she would not be entitled to a sum of Rs.20,000/- awarded in her favour in proceedings under the Protection of Women from Domestic Violence Act, 2005, because, admittedly, in the proceedings under S.24 she has been awarded a sum of Rs.23,500/- per month, which is definitely higher than the amount awarded under other proceedings at Sarkaghat. 10. Apart from above, this Court finds from the record that the factum with regard to receipt of RS.82,619/- as monthly salary never came to be disputed by the respondent, rather, he failed to dispute the documents adduced on record by the petitioner, with regard to statutory deductions made out of aforesaid amount, as such, learned Court below rightly arrived at a conclusion that a sum of Rs.82,619/- is being received by respondent as salary but thereafter, learned Court below, while determining maintenance under S.24, specifically concluded that a sum of Rs.38,729/- is being deducted from the salary of the respondent on account of statutory deductions. 11. 11. Though, in the case at hand, attempt has been made by respondent to show that the petitioner was in job with Axis Bank as Assistant Manger, but that could not be a ground for the learned Court below to reject the claim of the petitioner because, admittedly, nothing came to be proved on record that at the time of passing impugned order, petitioner was in receipt of some amount as salary from any organisation, rather, factum with regard to leaving the job by petitioner has been virtually acknowledged by the respondent, who has categorically stated that the petitioner was working as an Assistant Manager. Mere acquisition of higher education by an applicant, cannot be a ground to disentitle him/her from claiming maintenance under S.24 of the Act ibid, because, in case applicant succeeds in proving that he/she has no independent source of income to maintain himself/herself, court on his/her application is bound to grant maintenance pendente lite under S.24, taking into consideration the income of the person, from whom, such, maintenance is being claimed. 12. So far claim of the petitioner is concerned, this court finds that the respondent is getting Rs.43,890/- after statutory deductions, out of which a sum of Rs.23,500/- has been ordered to be paid to her as maintenance pendente lite. Since respondent resides in Shimla in rented accommodation and he has a mother to look after, he cannot be compelled to pay the amount more than what has been awarded by learned Court below, because, in that case, respondent would be left with no amount to sustain himself. 13. In view of above, this court finds no merit in both the petitions, which are accordingly dismissed. Order passed by learned Court below is upheld. Pending applications, if any, are disposed of. Interim directions, if any, stand vacated.