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2019 DIGILAW 271 (RAJ)

Neeraj Singh v. Ankita Singh w/o Neeraj Singh

2019-01-22

DINESH MEHTA, SANGEET LODHA

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JUDGMENT : 1. This appeal is directed against order dated 23.3.18 passed by the Family Court, Bhilwara, directing the appellant to pay maintenance pendente lite a sum of Rs.10,000/- to the respondent for herself and Rs.5,000/- for her minor daughter. That apart, the appellant has been directed to pay a sum of Rs.21,000/- towards the litigation expenses and further a sum of Rs.500/- for expenses on each date of hearing. 2. The facts relevant are that during the pendency of the proceedings between the parties under Section 9 of Hindu Marriage Act, 1955 (for short "the Act"), the respondent-wife preferred an application under Section 24 of the Act claiming maintenance pendente lite a sum of Rs.20,000/- per month stating that the appellant employed as Teacher in Panchayat Samiti, Bhadesar is drawing monthly salary a sum of Rs.30,000/-. The application was contested by the appellant stating that as a matter of fact he is drawing honorarium of Rs.6,000/- only. In this regard, the respondent placed on record copy of the order dated 20.5.17 issued by the Gram Panchayat, Leswa, Panchayat Samiti, Bhadesar. The Family Court while observing that during the course of argument, it is revealed that elder brother and sister in law of the respondent herein run a school wherein the appellant is member of Management Committee and thus, it would not be appropriate to accept that his monthly income is only Rs.6,000/- and proceeded to entitlement of the appellant for maintenance as aforesaid. Hence, this appeal. 3. Learned counsel appearing for the appellant contended that the Family Court has failed to consider the provisions of Section 24 of the Act in correct perspective. It is submitted that the finding recorded by the Family Court regarding the appellant's source of income on the basis of assumption and presumption is ex facie erroneous. Learned counsel submitted that no facts were brought on record regarding the school being run by the respondent's brother and the appellant having any pecuniary interest therein yet, on the basis of whatever stated by the respondent during the course of arguments, the finding recorded by the Family Court is ex facie perverse. 4. Learned counsel submitted that no facts were brought on record regarding the school being run by the respondent's brother and the appellant having any pecuniary interest therein yet, on the basis of whatever stated by the respondent during the course of arguments, the finding recorded by the Family Court is ex facie perverse. 4. On the other hand, the counsel appearing for the respondent submitted that the appellant is employed as Teacher in the Panchayat Samiti and as a matter of fact, drawing salary a sum of Rs.30,000/- and thus, the amount of maintenance as determined by the Family Court for the respondent herself and her minor child, cannot be said to be excessive so as to warrant interference by this court. Learned counsel submitted that the appellant being member of the Management Committee of the school run by his brother, the presumption regarding he having a reasonable income there from cannot be faulted with. 5. I have considered the rival submissions and perused the material on record. 6. Indisputably, in the application filed, the appellant employed as Teacher in the Panchayat Samiti, Bhadesar is drawing a salary of Rs.30,000/- per month. Admittedly, no proof whatsoever was produced by the respondent before the Family Court regarding the appellant's monthly salary. To the contrary, the appellant had placed on record the order issued by his employer showing that he was drawing honorarium of Rs.6,000/- per month only. It was not the case set out in the application by the respondent that the appellant has yet another source of income i.e. from the school run by her brother wherein the appellant is member of Management Committee. In the considered opinion of this court, solely on the basis of the submissions made by the respondent during the course of hearing, the Family Court has seriously erred in holding that it would not be justified to accept the monthly income of the appellant as Rs.6,000/- per month. 7. Apparently, 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. 7. Apparently, 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. But then, while determining the amount of maintenance payable to the spouse who is unable to maintain himself/herself, the income of the spouse found to be liable for payment of maintenance must be assessed on the basis of the material on record. In the instant case, in the considered opinion of this court, the Family Court has seriously erred in awarding maintenance to the respondent as aforesaid without first quantifying the income of the appellant appropriately while taking into consideration the material on record. 8. In this view of the matter, the matter deserves to be remanded to the Family Court to pass an appropriate order afresh after assessing the income of the appellant on the basis of the material on record. 9. Accordingly, the appeal is allowed. The order impugned dated 23.3.18 is set aside. The matter is remanded to the Family Court, Bhilwara for decision afresh, after due consideration of the material on record. The parties shall be at liberty to place additional material, if any, on record, for the purpose of just determination of the maintenance payable.