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2020 DIGILAW 457 (RAJ)

Chandraveer Singh v. Anita

2020-03-03

MANOJ KUMAR GARG, SANGEET LODHA

body2020
JUDGMENT 1. This appeal is filed by the appellant assailing the legality of the order dated 10.12.18 passed by the Judge, Family Court, Pratapgarh in Family Misc. Case No.14/18, 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 is directed to pay maintenance pendente lite to the respondent a sum of Rs.20,000/- per month. That apart, the appellant is directed to pay a sum of Rs.720/- to the respondent towards the expenses to attend the each date of hearing. 2. The appellant filed a petition against the respondent 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 from the appellant a sum of Rs.15,000/- per month for herself and her minor son. That apart, the respondent claimed litigation expenses a sum of Rs.10,000/- in lump sum and Rs.1,000/- towards the expenses for attending the each date of hearing. The respondent averred in the application that she has no source of income, whereas the appellant is employed in Vodafone Cellular Company on a respectable post and also earning from irrigated agriculture land. The income of the appellant was disclosed as Rs.10,00,000/- per annum. 3. The appellant contested the application by filing a reply thereto, taking the stand that he is working as labourer in the town Pratapgarh and do not possess any land/immovable property. The appellant claimed that the respondent is earning Rs.20,000-25,000 per month while working as private teacher in Ratlam City. The appellant submitted that he is already paying a sum of Rs.10,000/- per month as maintenance to the respondent and Rs.8,000/- towards the maintenance for his minor child Shivendra Singh pursuant to the order passed by the Family Court, Ratlam and therefore, the respondent is not entitled for any further maintenance. 4. After due consideration of the rival submissions and material on record, the Family Court determined the amount payable towards maintenance pendente lite and other expenses to the respondent as indicated above. Hence, this appeal. 5. Learned counsel appearing for the appellant contended that the monthly income of the appellant a sum of Rs.35,000/- assessed by the Family Court without there being any material on record, is ex facie capricious. Hence, this appeal. 5. Learned counsel appearing for the appellant contended that the monthly income of the appellant a sum of Rs.35,000/- assessed by the Family Court without there being any material on record, is ex facie capricious. Drawing the attention of the Court to the income tax return filed by the appellant for the assessment year 2016-17, learned counsel submitted that the appellant is earning only Rs.2,79,360/- per annum and thus, the amount of maintenance determined by the Family Court is quite excessive. Learned counsel urged that when the appellant was already paying a sum of Rs.18,000/- per month towards the maintenance to the respondent pursuant to the order passed by the Family Court, Ratlam in proceedings under Section 125 Cr.P.C., there was no occasion for the Family Court, Pratapgarh to direct the appellant to pay maintenance pendente lite to the respondent a sum of Rs.20,000/- per month whereas, the appellant had claimed only Rs.15,000/- per month. Learned counsel submitted that the award of maintenance a sum of Rs.20,000/- as against the maintenance awarded by the Family Court, Ratlam to the respondent a sum of Rs.10,000/- is excessive and therefore, the order impugned deserves to be set aside. In support of the contention, learned counsel has relied upon the decision of the Supreme Court in the matter of Kalyan Dey Chowdhury vs. Rita Dey Chowdhury Nee Nandy: Civil Appeal No.5369/16, decided on 19.4.17 and Neeta Rakesh Jain vs. Rakesh Jeetmal Jain, 2010 AIR(SCW) 4417 . 6. On the other hand, the counsel appearing for the respondent submitted that the amount of maintenance awarded can always be varied with the passage of time and thus, taking into consideration the totality of the facts and circumstances of the case, the amount of maintenance awarded by the Family Court, Pratapgarh by the order impugned cannot be said to be excessive. Learned counsel submitted that the appellant has not approached the Court with the clean hands. It is submitted that instead of filing the latest income tax return, the appellant has filed the income tax return of 2016-17 which does not reflect his income as on the date the order impugned was passed by the Family Court, Pratapgarh. Learned counsel submitted that the appellant has not approached the Court with the clean hands. It is submitted that instead of filing the latest income tax return, the appellant has filed the income tax return of 2016-17 which does not reflect his income as on the date the order impugned was passed by the Family Court, Pratapgarh. Learned counsel submitted that the Family Court has already issued the directions that the amount which is being paid by the appellant towards the maintenance in other proceedings shall be adjusted against the amount of maintenance to be paid in terms of the order impugned and thus, there is absolutely no reason as to why the order impugned passed by the Family Court should be interfered with by this Court in exercise of its appellate jurisdiction. 7. We have considered the submissions of the learned counsel and perused the material on record. 8. 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. However, no hard and fast rule can be laid down for determination of the amount of interim maintenance. 9. In Kalyan Dey Chowdhury's case (supra), relied upon by the learned counsel for the appellant, the Supreme Court has followed the decision in Dr. Kulbhushan Kumar vs. Raj Kumar & Anr, 1970 3 SCC 129 , wherein it has been held that 25% of the husband's salary would be just and proper to be awarded as maintenance to the respondent wife therein. But at the same time, it is categorically held that maintenance is always dependant on the factual position of the case and the court would be justified in moulding the claim of maintenance passed on various factors. 10. In Neeta Rakesh Jain's case (supra), the Supreme Court observed: "8. But at the same time, it is categorically held that maintenance is always dependant on the factual position of the case and the court would be justified in moulding the claim of maintenance passed on various factors. 10. In Neeta Rakesh Jain's case (supra), the Supreme Court observed: "8. Section 24 thus provides that in any proceeding under the Act, the spouse who has no independent income sufficient for her or his support may apply to the court to direct the respondent to pay the monthly maintenance as the court may think reasonable, regard being had to the petitioner's own income and the income of the respondent. The very language in which Section is couched indicates that wide discretion has been conferred on the court in the matter of an order for interim maintenance. Although the discretion conferred on the court is wide, the Section provides guideline inasmuch as while fixing the interim maintenance the court has to give due regard to the income of the respondent and the petitioner's own income. In other words, in the matter of making an order for interim maintenance, the discretion of the court must be guided by the criterion provided in the Section, namely, the means of the parties and also after taking into account incidental and other relevant factors like social status; the background from which both the parties come from and the economical dependence of the petitioner. Since an order for interim maintenance by its very nature is temporary, a detailed and elaborate exercise by the court may not be necessary, but, at the same time, the court has got to take all the relevant factors into account and arrive at a proper amount having regard to the factors which are mentioned in the statute." 11. Adverting to the facts of the present case, it is noticed that the appellant did not approach the Court with clean hands inasmuch as though employed in Vodafone Cellular Company, the appellant denied the fact and proceeded to make an averment that he is working as a labourer in Pratapgarh Town. The averment made by the respondent regarding the income from irrigated agriculture land was also not denied by the appellant specifically. The averment made by the respondent regarding the income from irrigated agriculture land was also not denied by the appellant specifically. Before this Court, the appellant so as to project that he is not earning Rs.35,000/- per month as assessed by the Family Court, has produced on record the income tax return of the assessment year 2016-17 related to the previous year 2015-16 instead of filing the income tax return of the preceding year. Be that as it may, on the facts and in the circumstances of the case, the income of the appellant as assessed by the Family Court on the basis of the material on record and taking into consideration the assessment of the income already made by the Family Court in proceedings under Section 125 Cr.P.C. cannot be said to be capricious or perverse. There was absolutely no material placed on record to establish that the respondent is employed as teacher and earning Rs.20,000-25,000 per month. The Family Court has awarded the maintenance both for the respondent and her minor son and not for the respondent alone as claimed by the appellant. It is true that the respondent had claimed Rs.15,000/- per month but the fact remains that the appellant has already been directed by the Family Court, Ratlam in proceedings under Section 125 Cr.P.C. to pay a sum of Rs.18,000/- per month towards the maintenance to the respondent for herself and her minor son. In the considered opinion of this court, on the facts and circumstances of the case, where the respondent has the responsibility to upbring a minor child, the enhancement of meagre amount of Rs.2,000/- towards the maintenance payable, does not warrant any interference by this Court in exercise of its appellate jurisdiction moreso, for the reason that Family Court is not precluded from enhancing the amount of maintenance payable under Section 24 of the Act of 1955 from time to time. 12. The appeal is therefore, dismissed. No order as to costs.