Research › Search › Judgment

Rajasthan High Court · body

2020 DIGILAW 604 (RAJ)

Nisha Prajapati v. Surendra Kumar

2020-08-21

RAMESHWAR VYAS, SANGEET LODHA

body2020
JUDGMENT Sangeet Lodha, J. - This appeal is directed against order dated 3.11.18 passed by the Family Court No.1, Jodhpur, whereby an application preferred by the appellant under Sections 24 & 26 of the Hindu Marriage Act, 1955 (in short "the Act of 1955") claiming maintenance for herself and her minor daughter has been partly allowed. The maintenance claimed by the appellant for herself has been denied, however, the respondent has been directed to pay a sum of Rs.12,000/- per month for the minor daughter. 2. The facts relevant are that the respondent filed a petition under Section 13 of the Act of 1955 seeking decree of divorce against the appellant. During the pendency of the petition, the appellant preferred an application under Section 24 & 26 of the Act of 1955 seeking maintenance for herself and minor daughter, a sum of Rs.60,000/- and litigation expenses 1,15,000/-. The appellant is employed as Pharmacist and earning Rs.46,000/- per month. The appellant alleged that the respondent who is employed as Assistant Professor in Psychiatrist in the Government Medical College is earning Rs.50,000/- per month as salary. That apart, according to the appellant, he is earning Rs.1,00,000/- from private practice and Rs.50,000/- from other sources of income. However, while giving the details of income as aforesaid, the appellant claimed that total monthly income of the respondent is about Rs.4,50,000/-. 3. The respondent filed a reply to the application taking the stand that since the appellant is earning Rs.46,000/- per month and therefore, she is in position to maintain herself and the minor daughter. The respondent denied that he is earning Rs.4,50,000 per month, however, admitted that he is earning Rs.60,000/- by way of salary and Rs.25,000-30,000 per month from private practice. 4. After due consideration of the material on record and rival submissions, the Family Court arrived at the finding that the respondent must be earning about Rs.1,00,000/- per month but since the appellant herein is also earning Rs.48,000/- per month, she is not entitled for any maintenance for herself. The Family Court observed that the mother and father both are under an obligation to maintain the daughter and accordingly, directed the respondent to pay a sum of Rs.12,000/- per month towards maintenance for his minor daughter. Hence, this appeal on behalf of the appellant for enhancement of the amount of maintenance. 5. The Family Court observed that the mother and father both are under an obligation to maintain the daughter and accordingly, directed the respondent to pay a sum of Rs.12,000/- per month towards maintenance for his minor daughter. Hence, this appeal on behalf of the appellant for enhancement of the amount of maintenance. 5. Learned counsel appearing for the appellant submitted that it is not the law that if both the spouses are earning, they cannot claim any maintenance under Section 24 of the Act of 1955. It is submitted that while considering the application for award of maintenance, the relevant consideration is inability of the spouse to maintain himself or herself or for want of independent income or inadequacy of the income to maintain at the level of social status of other spouse and therefore, if one spouse has comparatively higher income than other, the application seeking maintenance cannot be rejected solely on the ground that the spouse applying for maintenance has his/her own source of income. Learned counsel submitted that taking into consideration the higher income of the respondent, the appellant is entitled for the maintenance as claimed. That apart, the amount of maintenance awarded by the Family Court for appellant's minor daughter is too meagre and deserves to be enhanced adequately. In this regard, learned counsel relied upon the documents placed on record before this Court to show that the respondent has sources of income other than already admitted in reply to the application. In support of the contention, learned counsel relied decision of the Court in the matters of Sonia Godhwani (Smt.) vs. Hitesh Godhwani: 2019 (1) CR (Raj.), 160 and Dr. Sonal Saxena (Smt.) vs. Shri Aseem Saxena, (2019) 4 WLN(Raj) 470 . 6. On the other hand, the counsel appearing for the respondent submitted that the appellant is also earning Rs.46,000/- per month and therefore, she is also under an obligation to contribute for maintenance of the minor daughter and thus, the amount of maintenance awarded by the Family Court for maintenance of their daughter is apparently in the higher side. In support of the contention, learned counsel relied decision of the Supreme Court in Padmja Sharma vs. Ratan Lal Sharma, (2000) AIR SC 1398 and a decision of this Court in Dinesh Kumar & Ors. vs. Smt. Shobha Chouhan (S.B.Criminal Revision Petition No.1055/12), decided on 27.9.18. In support of the contention, learned counsel relied decision of the Supreme Court in Padmja Sharma vs. Ratan Lal Sharma, (2000) AIR SC 1398 and a decision of this Court in Dinesh Kumar & Ors. vs. Smt. Shobha Chouhan (S.B.Criminal Revision Petition No.1055/12), decided on 27.9.18. Learned counsel submitted that the documents sought to be placed on record for the first time before this Court cannot be looked into. That apart, the documents placed on record in no manner indicate that same relate to the respondent and thus, on the basis of the said documents, the appellant is not entitled for enhancement of the amount of maintenance determined by the Family Court. Learned counsel submitted that the respondent has no source of income other than those disclosed in the reply to the application. 7. We have considered the rival submissions and perused the material on record. 8. Indubitably, 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 sufficient means to maintain himself/herself 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. Thus, the application seeking maintenance cannot be rejected solely on the ground that the spouse claiming the maintenance has his/her own source of income; inadequacy of the income to maintain the level of social status of other spouse is also a relevant consideration for award of maintenance. 9. Apparently, the respondent who is employed as Associate Professor in Psychiatrist in Government Medical College is earning about Rs.1,00,000/- per month from salary and other sources of income. Though, the appellant has produced certain documents to show that the respondent is also earning by way of commission from the Research Centre. Firstly, these documents were never produced by the appellant before the Family Court and secondly, from the documents produced it cannot be conclusively inferred that the same relate to the respondent herein. In this view of the matter, the finding arrived at by the Family Court regarding the monthly income of the respondent cannot be said to be capricious or perverse so as to warrant interference by this Court. 10. In this view of the matter, the finding arrived at by the Family Court regarding the monthly income of the respondent cannot be said to be capricious or perverse so as to warrant interference by this Court. 10. There cannot be any quarrel with the proposition that the working wife or the husband, as the case may be, is obliged to contribute in maintenance of children. But then, the amount of maintenance has to be determined on the basis of overall consideration of the matter keeping in view income of both the spouses. No hard and fast rule can be laid down for determination of amount of interim maintenance. 11. Admittedly, the appellant is earning a sum of Rs.46,000/- per month as against the monthly income of the respondent husband a sum of Rs.1,00,000/- per month. It is also not disputed that the appellant has responsibility of upbringing the minor daughter, who at the time of filing the application was studying in Class IV in Delhi Public School, Jodhpur. It is also not disputed that the respondent is staying with his parents whereas the appellant is residing in a rented premises. Assuming that the income earned by the appellant is sufficient for her own maintenance, but then, taking into consideration the overall monthly income of the respondent, he is under an obligation to contribute more amount for maintenance of the minor daughter. We are of the considered opinion that the amount of maintenance determined by the Family Court for maintenance of the minor daughter without taking into consideration the overall income of the spouses is in the lower side which deserves to be adequately enhanced. 12. On the facts and in the circumstances of the case, we consider it appropriate to enhance the amount of maintenance payable by the respondent for his minor daughter from Rs.12,000/- to Rs.20,000/- per month. 13. Accordingly, the appeal preferred by the appellant is partly allowed. The respondent shall make payment of Rs.20,000/- to the appellant towards the maintenance of his minor daughter from the date of application i.e. 14.11.17. The arrear of the amount of maintenance shall be paid within a period of one month from the date of this order. The order impugned passed by the Family Court shall stand modified accordingly. No order as to costs.