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Rajasthan High Court · body

2019 DIGILAW 1935 (RAJ)

Sonal Saxena v. Aseem Saxena

2019-07-10

SANGEET LODHA, VINIT KUMAR MATHUR

body2019
JUDGMENT : Sangeet Lodha, J. 1. This appeal is directed against order dated 15.6.18 passed by the Family Court, Udaipur in Civil Misc. Case No. 22/17, whereby the claim of the appellant for grant of maintenance pendente lite u/s. 24 of the Hindu Marriage Act, 1955 (in short "the Act of 1955") has been rejected observing that she is already being paid maintenance a sum of Rs. 3,000/- per month pursuant to the order passed by the Judicial Magistrate No. 2, Udaipur (South) under Section 23(1) of Protection of the Women from Domestic Violence Act, 2005 (for short "the Act of 2005"). However, the appellant has been held entitled for litigation expenses in lump sum a sum of Rs. 5000/- and travelling expenses Rs. 500/- for attending each date of hearing before the Family Court. 2. Learned counsel appearing for the appellant submitted that the respondent is earning more than Rs. 1 lac which is substantiated from his income tax returns placed on record before the Family Court. Drawing the attention of the court to the communication dated 20.6.18 sent by the Income Tax Officer (CPIO), Ward 2(1), Bikaner furnishing the information to the appellant under the Right to Information Act, 2005, learned counsel submitted that the gross income of the appellant during the assessment year 2017-18 was Rs. 15,38,491/- and net taxable income was Rs. 13,50,140/- whereas, the annual income of the appellant as per the return filed for the assessment year 2018-19 was only Rs. 2,61,544/-. Learned counsel submitted that the appellant has responsibility to up bring her daughter who is 6 years of age and thus, keeping in view the mandate of provisions of Section 24 of the Act of 1955, the Family Court was under an obligation to award reasonable maintenance to the appellant if not Rs. 64,000/- per month as claimed by her. Learned counsel urged that of course, the maintenance being paid to the appellant under the Act of 2005 deserves to be adjusted against the amount of maintenance pendente lite to be determined by the Family Court but the award of maintenance under the Act of 2005 cannot be a ground for rejection of the claim of the spouse under the provisions of Section 24 of the Act of 1955. Learned counsel submitted that amount of Rs. Learned counsel submitted that amount of Rs. 5000/- awarded to the appellant towards the litigation expenses is too meagre and therefore, the same deserves to be enhanced by this court reasonably. Learned counsel submitted that appellant deserves to be awarded maintenance from the date of application seeking maintenance filed by her. 3. On the other hand, the counsel appearing for the respondent submitted that the respondent is suffering from a disease and presently not in position to work and thus, as a matter of fact, he has no reasonable source of income to maintain himself. Learned counsel submitted that the appellant is being paid maintenance awarded by the court of competent jurisdiction under the provisions of Act of 2005 and therefore, the application preferred claiming maintenance under the provisions of Sec. 24 of the Act of 1955 has rightly not been entertained by the Family Court. Learned counsel submitted that the maintenance awarded to the appellant by the court under the Act of 2005 is adequate and therefore, the appellant is not entitled for enhancement of the amount of maintenance. Learned counsel submitted that the litigation expenses a sum of Rs. 5,000/- awarded is also adequate and therefore, the order impugned does not require any modification by this court. Learned counsel submitted that the amount of maintenance could be awarded to the appellant only from the date of order and not from the date of filing of the application. 4. We have considered the submissions of the learned counsels for the parties and perused the material on record. 5. Indisputably, the purpose behind Section 24 of the Act of 1955 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. 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. Suffice it to say that the yardstick for determination of the amount of maintenance under the provisions of Section 24 of the Act of 1955 and under Section 23 read with Section 20 of the Act of 2005 is different and thus, merely because, some interim maintenance has been awarded by the court under the Act of 2005 cannot be a ground for rejecting the application preferred by spouse under Section 24 of the Act of 1955 claiming maintenance pendente lite. Thus, the Family Court has seriously erred in rejecting the claim of the appellant solely on this ground. 6. From bare perusal of the documents on record, it is apparent that the respondent-husband is earning more than Rs. 1 lac per month whereas, the earning of appellant-wife is only about Rs. 20,000/- per month. It is also not in dispute that the appellant wife has the responsibility to maintain her minor daughter. Apparently, the source of income of the appellant-wife to maintain herself and her daughter at the level of social status of the respondent, who is earning more than Rs. 1 lac per month, is not adequate and thus, the appellant-wife deserves to be awarded reasonable maintenance to maintain herself and her minor daughter. 7. No hard and fast rule can be laid down for determination of the amount of interim maintenance. Thus, on overall consideration of the matter, keeping in view the income of both the spouses, this court is of the considered opinion that the appellant-wife is entitled for maintenance pendente lite quantified at Rs. 25,000/- per month for herself and her minor daughter. The amount of maintenance paid to the appellant by the respondent as determined by the court under the Act of 2005 deserves to be adjusted against the amount of maintenance determined by this court as aforesaid. 8. 25,000/- per month for herself and her minor daughter. The amount of maintenance paid to the appellant by the respondent as determined by the court under the Act of 2005 deserves to be adjusted against the amount of maintenance determined by this court as aforesaid. 8. Coming to the question of entitlement of the appellant to maintenance pendente lite either from the date of application or from the date of award, it is to be noticed that the purpose behind Section 24 of the Act of 1955 is to provide necessary financial assistance during the proceeding to the party to the matrimonial dispute who has no sufficient means to maintain himself/herself or to bear the expenses of the proceedings. In considered opinion of this court, the expression 'during the proceedings' appearing in Section 24 cannot be given a narrow and restrictive meaning as suggested by the counsel appearing for the respondent. It is pertinent to note that as per proviso to Section 24 of the Act, the application preferred for payment of the expenses of the proceedings and such monthly sum during the proceedings, as far as possible shall be disposed of by the court within 60 days from the date of service of notice on the wife or the husband, as the case may be. Obviously, the said proviso to Section 24 has been inserted (by Act No. 49 of 2001 w.e.f. 24.9.01) for the reason that the wife or husband, as the case may be, if entitled for maintenance pendente lite or the litigation expenses, is not denied the same for a longer period on account of delayed decision of the application. In this view of the matter, if the application preferred is not disposed of by the court expeditiously and it remains pending for a longer period, there is no reason why the applicant should be deprived of the benefits admissible for no fault on his part, merely on account of delayed disposal of the application. Thus, the harmonious construction of the provisions contained in Section 24 of the Act, makes it abundantly clear that ordinarily the maintenance has to be allowed from the date of the application and not from the date of the order. The maintenance during the period of pendency of the application u/s. 24 of the Act could be denied only for the reasons to be specifically recorded. The maintenance during the period of pendency of the application u/s. 24 of the Act could be denied only for the reasons to be specifically recorded. In this view of the matter, we are of the opinion that the appellant deserves to be awarded maintenance pendente lite from the date of application. 9. Coming to the litigation expenses, it is to be noticed that the litigation between the parties has even travelled upto this court and thus, the amount of Rs. 5,000/- determined by the Family court towards the litigation expenses also appears to be meagre and deserves to be enhanced. 10. In the result, the appeal is allowed. The order impugned dated 15.6.18 passed by the Family Court is set aside. The application of the appellant under Section 24 of the Act of 1955 is allowed. The appellant shall be entitled for maintenance from the respondent a sum of Rs. 25,000/- per month for herself and her minor daughter, from the date of application preferred by her before the Family Court. The amount of maintenance being paid to the appellant by the respondent in terms of the order passed by the court of competent jurisdiction under the Act of 2005 shall be adjusted against the amount of maintenance to be paid to the appellant in terms of this order. The amount of litigation expenses determined by the Family Court is enhanced from Rs. 5,000/- to Rs. 10,000/-. The arrear of maintenance shall be paid by the respondent to the appellant within a period of two months from the date of this order. The respondent shall continue to pay the amount of monthly maintenance to the appellant during the pendency of the proceedings before the Family Court by 7th day of every month. The appellant shall also be at liberty to make a prayer for enhancement of the amount of maintenance if the proceedings before the Family Court remains pending for a long. No order as to costs.