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2019 DIGILAW 2772 (RAJ)

Mukesh v. Rekha @ Rukmani

2019-11-01

SANGEET LODHA, VINIT KUMAR MATHUR

body2019
JUDGMENT : 1. This appeal is filed by the appellant assailing the legality of the order dated 29.8.2019 passed by the Family Court, Churu in Civil Case No. 150/17, whereby while allowing an application preferred by the respondent under Section 24 of the Hindu Marriage Act, 1955 (for short "the Act of 1955") the appellant is directed to pay maintenance a sum of Rs. 2,500/- per month each to the respondent-Smt. Rekha for herself and her daughter. That apart, the appellant is directed to pay Rs. 1,000/- to the respondent for attending each date of hearing before the Family Court. 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. 10,000/- per month for herself and her daughter; Rs. 20,000/- towards the litigation expenses and Rs. 2,000/- for attending each date of hearing. The respondent averred in the application that she has no source of income whereas, the appellant is earning Rs. 50,000/- per month from the agriculture, sale of milk and the work of goldsmith. 3. The appellant filed a reply to the application contending that the respondent is operating Beauty Parlour and earning Rs. 20,000/- per month. The appellant denied that he has sources of income as alleged by the respondent. 4. After due consideration of the rival submissions, the Family Court determined the maintenance pendente-lite payable by the appellant to the respondent for herself and her daughter at Rs. 5,000/- per month and Rs. 1,000/- towards the expenses for each date of hearing. 5. Learned counsel appearing for the appellant contended that the respondent has deserted the appellant and therefore, she is not entitled for any maintenance. The Family Court has seriously erred in ignoring the fact that the respondent has her own source of income. It is submitted that without there being any cogent evidence regarding the appellant's income, the maintenance awarded by the Family Court is apparently excessive. The Family Court has seriously erred in ignoring the fact that the respondent has her own source of income. It is submitted that without there being any cogent evidence regarding the appellant's income, the maintenance awarded by the Family Court is apparently excessive. Drawing the attention of the court to the order dated 30.5.2019 passed by the Additional Chief Judicial Magistrate, Sardarsahar in proceeding under Section 125 Cr.P.C. learned counsel submitted that the competent court had already determined the maintenance payable to the respondent and the daughter Himanshi as Rs. 1500/- and Rs. 1000/- per month respectively and thus, the Family Court has seriously erred in passing the order impugned. Learned counsel submitted that while awarding the maintenance as aforesaid, the amount already being paid by the appellant as per the order passed by the competent court in proceedings under Section 125 Cr.P.C. is not directed to be adjusted and therefore, the order impugned deserves to be set aside for this reason also. 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. No hard and fast rule can be laid down for determination of the amount of interim maintenance. 8. Admittedly, no evidence was brought on record by the appellant to establish that the respondent has her own source of income. Though, the appellant had denied the sources of income as alleged by the respondent but it was not even the case of the appellant that he has no source of income whatsoever. The factum of respondent deserting the appellant cannot be a ground to deny the maintenance pendente-lite under Section 24 of the Act of 1955. 9. In the considered opinion of this court, in absence of any evidence regarding the respondent having any adequate source of income, the amount of maintenance pendente- lite a sum of Rs. The factum of respondent deserting the appellant cannot be a ground to deny the maintenance pendente-lite under Section 24 of the Act of 1955. 9. In the considered opinion of this court, in absence of any evidence regarding the respondent having any adequate source of income, the amount of maintenance pendente- lite a sum of Rs. 5,000/- per month determined by the Family Court for the respondent and her daughter and Rs. 1,000/- for attending each date of hearing, cannot be said to be excessive so as to warrant interference by us in exercise of appellate jurisdiction. 10. It is noticed that while passing the order dated 30.5.2019 in proceedings under Section 125 Cr.P.C. the court has specifically observed that amount payable under the said order shall be adjusted against the amount of maintenance determined in any other proceedings and thus, obviously, the amount of maintenance directed to be paid by the appellant to the respondent in proceedings under Section 125 Cr.P.C. shall be liable to be adjusted against the amount of maintenance payable in terms of the order impugned. 11. For the aforementioned reasons, the appeal is devoid of any merit, it is hereby, dismissed with the observations as above.