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2019 DIGILAW 1920 (RAJ)

Harendra Kumar Kumhar v. Vijay Laxmi Kumhar

2019-07-08

SANGEET LODHA, VINIT KUMAR MATHUR

body2019
JUDGMENT : SANGEET LODHA, J. This appeal is directed against order dated 30.4.19 passed by the Family Court No. 1, Jodhpur, in Civil Original Case No. 730/17, whereby an application preferred by the respondent u/s 24 and 26 of the Hindu Marriage Act, 1955(in short “the Act of 1955”) has been allowed and the appellant has been directed to pay a sum of Rs. 10,000/- per month as maintenance pendente lite to the respondent-wife and Rs. 5,000/- each for her three children i.e. two daughters and a son and further to pay a sum of Rs. 5000/- in lump sum as litigation expenses. 2. Learned counsel for the appellant submitted that the respondent has independent income sufficient for her support and necessary expenses of the proceeding yet the Family Court without there being any documentary evidence regarding income of the appellant, has passed the order directing appellant to pay the maintenance to the respondent to the tune of Rs. 25,000/- per month. Learned counsel submitted that the respondent filed an application under Section 12 of Protection of Women from Domestic Violence Act, 2005 (for short “the Act 2005”) of before the Metropolitan Magistrate No. 5, Jodhpur Metropolitan and the learned Magistrate directed payment of maintenance of Rs.5,000/- per month, which was enhanced to Rs. 15,000/- per month by the Sessions Judge, Jodhpur Metropolitan, however, on a miscellaneous petition being filed, this court while disposing of the petition greeted the trial court to decide the application under Section 12 of the Act of 2005 and the appellant has been directed to pay the maintenance Rs. 5,000/- per month as directed by the trial court and thus, the maintenance to the tune of Rs. 25,000/- awarded by the Family Court is highly excessive and deserves to be set aside. 3. Indisputably, the purpose behind Section 24 of the Act is to provide necessary financial assistance to the party to the matrimonial dispute who has no sufficient means to maintain himself/herself or to bear the expenses of the proceedings. While considering the application for award of interim maintenance, the relevant consideration is the inability of the spouse to maintain himself or herself for want of independent income or inadequacy of the income to maintain at the level of social status of other spouse. 4. While considering the application for award of interim maintenance, the relevant consideration is the inability of the spouse to maintain himself or herself for want of independent income or inadequacy of the income to maintain at the level of social status of other spouse. 4. No hard and fast rule can be laid down for determination of the amount of interim maintenance under Section 24 of the Act. Though, the appellant has attempted to project that he is an employee in Sharda Mahila College but the documents on record apparently show that the appellant is the Managing Director of the said College. As observed by the Family Court, this fact is admitted by the appellant in his application filed under Section 9 of the Act and thus, the conclusion drawn by the Family Court regarding the appellant having sound financial status cannot be faulted with. It is pertinent to note that the respondent-wife has responsibility to upbring three children, out of them, two are studying in the middle school. Thus, taking into consideration the totality of the facts and circumstances of the case, the interim maintenance payable to the respondent determined by the Family Court as aforesaid cannot be said to be excessive. In the proceeding under the Act of 2005, the monthly maintenance being awarded as Rs. 5,000/- per month has no bearing in the matter inasmuch as, the yardstick for determination of interim maintenance under Section 24 is absolutely different. Moreover, the Family Court has specifically observed that if the respondent is receiving the amount of maintenance in any other proceeding, the same shall be adjusted in the amount payable under the order impugned. 5. For the aforementioned reasons, in considered opinion of this court, the order impugned passed by the Family Court does not suffer from any illegality or irregularity warranting interference by this court in exercise of its appellate jurisdiction. 6. The appeal is dismissed accordingly.