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Rajasthan High Court · body

2019 DIGILAW 2719 (RAJ)

Harishankar Dhakad v. Sushila

2019-10-21

SANGEET LODHA, VINIT KUMAR MATHUR

body2019
JUDGMENT 1. This appeal is filed by the appellant assailing the legality of the order dated 5.3.19 passed by the Family Court, Bhilwara in Civil Case No.55/17, 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. The appellant has been directed to pay maintenance pendente lite a sum of Rs.5,000/- per month to the respondent. The appellant has also questioned legality of yet another order dated 5.3.19 passed by the Family Court, whereby the application preferred by him under Order XXVI Rule 10A seeking direction for DNA test of the child alleged to have been born out of the wedlock between the appellant and the respondent, has been dismissed. 2. The appellant filed a petition against the respondent for restitution of conjugal rights under Section 9 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 from the appellant a sum of Rs.15,000/- per month and Rs.750/- towards 'to and fro' expenses to attend each date of hearing. The respondent averred in the application that she has no source of income whereas, the respondent is employed as Teacher Gr.II and earning monthly salary Rs.40,000/- per month. That apart, he is having joint khatedari land measuring 31.7 bighas, wherefrom he is earning Rs.30,000/- per month. 3. After due consideration of the rival submissions, the Family Court determined the maintenance pendente lite payable by the appellant to the respondent as Rs.5,000/- per month. 4. At the outset, learned counsel appearing for the appellant submitted that the appellant does not want to press the appeal against the order dated 5.3.19 rejecting the application preferred under Order XXVI Rule 10A read with Section 151 CPC with liberty to avail the appropriate remedy. 5. Arguing the appeal against the order awarding maintenance, learned counsel appearing for the appellant contended that the appellant never entered into marriage with the respondent and thus, the provisions of Section 24 of the Act of 1955 which provides right to claim maintenance to the spouse is not attracted in the matter. Learned counsel submitted that the appellant's marriage was solemnized with one Smt. Manju on 3.7.94 and out of the wedlock, one son Yogesh was born on 19.5.95. Learned counsel submitted that the appellant's marriage was solemnized with one Smt. Manju on 3.7.94 and out of the wedlock, one son Yogesh was born on 19.5.95. Learned counsel submitted that unless the factum of marriage between the appellant and the respondent is established on the basis of some evidence, the directions issued by the Family Court granting maintenance, cannot be sustained. 6. We have considered the submissions of the learned counsel and perused the material on record. 7. 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. 8. It is true that the appellant has denied the factum of marriage but the fact remains that the case set out by the respondent is that the marriage between the parties was solemnized in the childhood and later, out of the wedlock, a son Kailash was born, who is presently 21 years of age. Obviously, the issue sought to be raised regarding the solemnization of marriage shall be decided by the Family Court on the basis of the evidence to be led by the parties at the time of final decision of the petition seeking restitution of conjugal rights filed on behalf of the respondent. At this stage, on account of the factum of marriage being disputed by the appellant, the application seeking maintenance could not have been rejected by the Family Court. 9. It is pertinent to note that the appellant has not disputed the factum of his being employed as Teacher Gr.II and having joint khatedari land of 31.7 bighas. Admittedly, nothing was brought on record to show that the respondent has her own source of income. 10. 9. It is pertinent to note that the appellant has not disputed the factum of his being employed as Teacher Gr.II and having joint khatedari land of 31.7 bighas. Admittedly, nothing was brought on record to show that the respondent has her own source of income. 10. Thus, on the facts and the circumstances of the case, the order impugned passed by the Family Court determining a meagre amount of Rs.5,000/- as maintenance pendente lite payable to the respondent by the appellant cannot be said to be excessive so as to warrant interference by us in exercise of appellate jurisdiction. 11. The appeal is therefore, dismissed.