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2019 DIGILAW 2576 (RAJ)

Surendra Singh Tanwar v. Heemani Purohit

2019-09-24

SANGEET LODHA, VINIT KUMAR MATHUR

body2019
JUDGMENT : 1. This appeal is filed by the appellant assailing the legality of the order dated 1.8.19 passed by the Family Court, Churu in Divorce Petition No.64/17, whereby an application preferred by the respondent under Section 24 of the Hindu Marriage Act, 1955 (for short "the Act of 1955") has been allowed and the appellant has been directed to pay maintenance pendente lite a sum of Rs.3,000/- per month each to the respondent and her two children. 2. The respondent filed a petition against the appellant seeking divorce under the provisions of Section 13 of the Act of 1955. During the pendency of the petition, the respondent filed an application under Section 24 of the Act of 1955, claiming maintenance pendente lite a sum of Rs.10,000/- per month from the appellant for herself and her two children. 3. The respondent averred in the application that she has no source of income, whereas the appellant who is an Ayurvedic doctor holding the qualification of BAMS, is earning Rs.50,000/- per month. It was averred that appellant has deserted the respondent and therefore, she is residing with her parents. The respondent having no source of income, is not in position to maintain the two children. The respondent, who herself is also an Ayurvedic doctor, averred that presently, she is pursuing her studies of Post Graduation in a private college and not even earning the stipend whereas, the appellant herein is running his own clinic at Indore. 4. The application was contested by the appellant by filing a reply thereto. The appellant had taken a categorical stand that the respondent is also a practising BAMS doctor and has sufficient source of income to maintain herself and the children. The appellant also placed on record income tax return of the respondent of the assessment year 2015-16 showing annual gross income of the respondent as Rs.2,93,050/- whereas, as per the income tax return of the appellant for the assessment year 2015-16, he had gross total income of Rs.3,16,607/-. According to the appellant both the spouses were having equal source of income and thus, the respondent is not entitled to claim any maintenance whatsoever. 5. The Family Court after due consideration of the material on record found that the appellant has admitted his monthly income as Rs.40,000/-. According to the appellant both the spouses were having equal source of income and thus, the respondent is not entitled to claim any maintenance whatsoever. 5. The Family Court after due consideration of the material on record found that the appellant has admitted his monthly income as Rs.40,000/-. The court observed that the respondent has taken admission in Tatia University to pursue her Post Graduation course and there is nothing on record suggesting that she is being paid monthly stipend. The return filed by the respondent is of the Assessment Year 2015-16 and there is nothing on record that she has filed the return for subsequent assessment years as well. The court observed that the appellant is under an obligation to maintain the respondent as also two minor children and accordingly, determined the maintenance pendente lite payable to the respondent and her two children, a sum of Rs.3,000/- each. Hence, this appeal. 6. Learned counsel appearing for the appellant contended that the Family Court has seriously erred in arriving at the conclusion that the respondent has no source of income. It is submitted that the evidence produced on record showing that the respondent, a Gynaecologist, is regular practising doctor, has altogether been ignored by the Family Court. Learned counsel submitted that even if the appellant had not produced the income tax return of the respondent for the assessment years subsequent to 2015-16, the Family Court could not have drawn an inference that the respondent has no source of income whatsoever. Learned counsel submitted that the respondent is having adequate source of income to maintain herself and minor children and thus, she is not entitled for any maintenance in terms of provisions of Section 24 of the Act of 1955. 7. On the other hand, counsel appearing for the respondent reiterating the stand taken before the Family Court submitted that the respondent is pursuing her studies for PG and at present, she has no source of income and therefore, the appellant is under an obligation to maintain the respondent and her two children. Learned counsel submitted that amount of maintenance determined by the Family Court is too meagre and does not warrant any interference by this court in exercise of the appellate jurisdiction. 8. We have considered the submissions of the learned counsel and perused the material on record. 9. Learned counsel submitted that amount of maintenance determined by the Family Court is too meagre and does not warrant any interference by this court in exercise of the appellate jurisdiction. 8. We have considered the submissions of the learned counsel and perused the material on record. 9. 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 independent income of his own sufficient for her or his support 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. 10. No hard and fast rule can be laid down for determination of the amount of interim maintenance. It is pertinent to note that besides the return of the income filed by the respondent for the assessment year 2015-16, the appellant had also produced on record the material showing that the respondent is a practising Gynaecologist. Merely because, the appellant is pursuing the studies of PG, no inference can be drawn that she has stopped practising as Gynaecologist altogether. Suffice it to say that on the basis of material on record, conclusion drawn by the Family Court that the respondent has no source of income of her own does not appear to be justified. But then, even if the appellant and the respondent have equal source of income, the appellant cannot shirk from his responsibility to share the expenditure to be incurred by the respondent towards maintenance of children and therefore, the amount of maintenance determined by the Family Court a meagre amount of Rs.3,000/- per month for each of the children, keeping in view the admitted income of the appellant cannot be said to be excessive. 11. In the result, the appeal is partly allowed. The order impugned passed by the Family Court awarding maintenance pendente lite a sum of Rs.3,000/- to the respondent is set aside. However, the order passed by the Family Court directing appellant to pay maintenance to the respondent a sum of Rs.3,000/- each for two minor children is maintained. No order as to costs.