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2020 DIGILAW 26 (ALL)

Geeta Devi v. Sushil Kumar Yadav

2020-01-03

BALA KRISHNA NARAYANA, SHAMIM AHMED

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JUDGMENT : Shamim Ahmed, J. 1. Heard learned counsel for the defendant-appellant and perused the impugned judgment and order. 2. This appeal is directed against the impugned judgment and order dated 21.11.2019 passed by the Principal Family Judge, Jaunpur, by which, the application-18ga moved by the defendant-appellant, under Section 24 of the Hindu Marriage Act, 1955 in Case No.943 of 2015 (Sushil Kumar Yadav Vs. Geeta Devi) has been rejected. 3. It is contended by the learned counsel for the defendant-appellant that the marriage of defendant-appellant was performed with plaintiff-opposite party on 27.11.2004 according to Hindu Rites and Rituals and after the marriage, both of them were living peacefully and from the aforesaid wed-lock, two daughters namely, Vishanavi and Pragati were born. It is further contended that prior to the marriage, both the parties were appointed on the post of assistant teacher and they were posted in different places. 4. It is further contended by the learned counsel for the defendant-appellant that the plaintiff/opposite party started treating the defendant-appellant with cruelty but the defendant-appellant kept mum and tried to negotiate the matter but plaintiff-opposite party did not pay any heed and threw the defendant-appellant out from his house, and thereafter, the defendant-appellant and her two minor daughters are living separately and the plaintiff-opposite party is not taking care and not paying any amount for their expenditure. 5. Learned counsel for the defendant-appellant further contended that the plaintiff-opposite party has filed a petition before the learned Trial Court, under Section 13 of the Hindu Marriage Act bearing Case No.943 of 2015 on 19.12.2015. Notices were issued and when the defendant-appellant got the information he was shocked by the conduct of the plaintiff-opposite party and she tried to negotiate the matter but the plaintiff-opposite party did not pay any heed and refused to live jointly. 6. Learned counsel for the defendant-appellant further contended that the defendant-appellant's financial condition was not good, therefore, she filed an application under Section 24 of Hindu Marriage Act with the prayer that she is unable to maintain herself and her two daughters, therefore, she needs an interim maintenance for Rs.5,000/- per month for herself and Rs.5,000/-for filing written statement and Rs.500/-per month for conveyance charges to attend the Court. 7. 7. Learned counsel for the defendant-appellant further contended that the plaintiff-opposite party filed his objection 19-Ga and submitted that the defendant-appellant is working as Headmistress in Primary School, Bara Deeh, Chhota Deeh, Gyanpur and after deduction she is getting a total sum of Rs.63,056/-per month and she has already filed an application, under Section 125 Cr.P.C, by which the Court below vide its order dated 28.11.2017 declined to pay any amount to the defendant-appellant and only directed to pay Rs.4,000/-per month to each of the daughters totalling to Rs.8,000/- per month for their maintenance. In the objection 19-ga, the plaintiff-opposite party further submitted that defendant-appellant from his income purchased a land on which a boundary wall was constructed, therefore, she is not in need to get any amount under Section 24 of the Hindu Marriage Act as prayed by her in application no.18ga. It is also mentioned in the application that the old parents are also living with the plaintiff-opposite party and he is bearing all expenses of their medicines and other requirements and prayed that the application 18-ga filed by the defendant-appellant under Section 24 of the Hindu Marriage Act may be dismissed. 8. Having heard learned counsel for the defendant-appellant and perused the impugned judgment and order dated 21.11.2019 as well as the other material brought on record, we find that the Court below after coming to the conclusion that the defendant-appellant is working as Headmistress in Primary School, Bara Deeh, Chhota Deeh, Gyanpur, District Bhadohi and getting regular salary and further the plaintiff-opposite party is paying Rs.4000/-each to the minor daughters for their maintenance vide order dated 28.11.2017 rejected the application filed under Section 125 Cr.P.C further observing that the plaintiff/opposite party is also maintaining his own parents, for which, there is no denial on behalf of defendant-appellant. 9. 9. It is not out of place to mention here that the provision of Section 24 of the Hindu Marriage Act which provided as under:- "Where in any proceeding under this Act it appears to the court that either the wife or the husband, as the case may be, has no independent income sufficient for her or his support and the necessary expenses of the proceeding, it may, on the application of the wife or the husband, order the respondent to pay to the petitioner the expenses of the proceeding, and monthly during the proceeding such sum as, having regard to the petitioner's own income and the income of the respondent, it may seem to the court to be reasonable. [Provided that the application for the payment of the expenses of the proceeding and such monthly sum during the proceeding, shall, as far as possible, be disposed of within sixty days from the date of service of notice on the wife or the husband, as the case may be.]" 10. Having due regard to the provision of Section 24 of Hindu Marriage Act, the Court is required to take into consideration the income of the parties before deciding the quantum of the interim maintenance. The Court has to keep in view of the need of the applicant-defendant and paying capacity of the plaintiff-opposite party, this view was taken in the case of Padmavathi Vs. C. Lakshminarayana, AIR 2002 Kant 424. Further, the Himanchal Pradesh High Court in the case of Neelam Kalia Vs. Rajesh Kalia, AIR2013 HP 76 was pleased to observe that if maintenance is being paid under section 125 of the Code of Criminal Procedure, 1973, the same though can be taken into consideration while granting maintenance pendentelite under Section 24 of the Hindu Marriage Act, 1955. The Hon'ble Apex Court in the case of Captain Ramesh Chander Vs. Veena Kaushal, AIR 1978 SC 1807 was pleased to observe that mere divorce does not end the right to maintenance. The Madras High Court in the case of Manokaram Vs. Devaki, AIR 2003 Mad 212 was pleased to observe that during the pendency of the divorce proceedings at any point of time if the wife establishes that she has no sufficient independent income for her support, it is open to her to claim maintenance pendente lite. 11. The Madras High Court in the case of Manokaram Vs. Devaki, AIR 2003 Mad 212 was pleased to observe that during the pendency of the divorce proceedings at any point of time if the wife establishes that she has no sufficient independent income for her support, it is open to her to claim maintenance pendente lite. 11. In our view the provisions of Section 24 of the Hindu Marriage Act provides for support to be given by the earning spouse in favour of non earning spouse during the pendency of proceedings before the court. 12. But in the present case, the wife (defendant-appellant) is a government teacher and she is getting a handsome salary which is sufficient for her to maintain herself, therefore, she is not entitled to get the benefit of maintenance as provided under Section 24 of the Hindu Marriage Act and the two children are also getting an amount of Rs.4,000/- per month for their maintenance vide order dated 28.11.2017 passed in an application filed under Section 125 Cr.P.C. by defendant-applicant. 13. Therefore, in the present case, the defendant-appellant is not in need of any amount as provided under the provisions of Section 24 of the Hindu Marriage Act. She is also working as Headmistress in the Primary School and receiving handsome salary for maintaining herself and she can bear the expenses of the litigation without any difficulty. Apart from this, the plaintiff-opposite party is paying Rs.4,000/-per month to each of the daughters regularly (total of Rs.8000/-) for their maintenance and there is no case set up by the defendant-appellant that the plaintiff-opposite party has committed default in payment of the amount to the above minor daughters. 14. In view of the observation made above and the law laid down by the Hon'ble Apex Court and the High Court in this regard, we are of the view that there is no dispute that the defendant-appellant is earning good salary as she is the government employee and working as Headmistress in Primary School, therefore, she can maintain herself and she can bear the expenses of litigation and therefore, she is not entitled for any relief under section 24 of the Hindu Marriage Act, 1955. 15. 15. The Court below after considering all the materials on record has rightly come to the conclusion that the defendant-appellant is not entitled for any relief, under Section 24 of the Hindu Marriage Act, 1955 and has rightly rejected the application 18ga filed by the defendant-appellant. 16. However, considering the peculiar facts and circumstances of the case, the Principal Family Judge, Jaunpur is directed to make every possible endeavour to decide the Case No. 943 of 2015 (Sushil Kumar Yadav Vs. Geeta Devi) filed u/s 13 of the Hindu Marriage Act within a period of six months from the date of filing of a certified copy of this order. 17. Subject to the aforesaid direction, this appeal is ,accordingly, dismissed. 18. No order as to cost.