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2021 DIGILAW 635 (HP)

Maninder Singh, S/o. Shri Bachan Singh v. Kajal, W/o. Shri Manider Singh, D/o. Sh. Suresh Kumar Bhatnagar

2021-09-02

SANDEEP SHARMA

body2021
ORDER : Though, notice stands served upon respondents No.1 & 2, in terms of order dated 12.06.2019, but since, none has come present on their behalf and as such, they are ordered to be proceeded against ex parte. 2. Instant petition filed under Article 227 of the Constitution of India lays therein challenge to order dated 05.03.2019, passed by learned Additional District Judge, Sirmour, District at Nahan (camp at Paonta Sahib) in CMA No. 13-N/6 of 2019, whereby court below while allowing the application under Section 24 of the Hindu Marriage Act, 1955, having been filed by respondents, directed petitioner herein, to pay sum of Rs.7000/- per month to respondent No.1, from the date of petition till final disposal of main petition. Apart from above, court below also directed petitioner herein to pay sum of Rs.15,000/- to respondent No.1, on account of litigation charges. 3. Precisely, the facts of the case, as emerge from the record are that marriage inter se petitioner and respondent No.1, was solemnized on 29th July, 2010 and out of their wedlock, one daughter was born, i.e. respondent No.2, but since, certain differences cropped up inter se petitioner and respondent No.1, she started living separately. Petitioner herein filed a petition under Section 13 of Hindu Marriage Act, 1955, levelling therein allegation of adultery against respondent No.1. Respondent No.1, was deserted by petitioner in the month of March, 2013 and her child was born in her matrimonial house. Since, respondent No.1 as well as her minor daughter have no source of income, they approached learned Additional District Judge, Sirmour, District at Nahan, where divorce petition having been filed by petitioner is pending, by way of application filed under Section 24 of Hindu Marriage Act, praying therein to grant maintenance pendente lite to the tune of Rs.15,000/- per month. Respondent No.1, claimed that petitioner receives sum of Rs.30,000/- per month as salary from Jubiliyan Factory Bhainswal Bhagwanpur, Rurki (UK) by doing a job of Chief Chemist, whereas, she has no source of income and as such, petitioner be directed to pay maintenance pendente lite as well as litigation expenses to her. 4. Respondent No.1, claimed that petitioner receives sum of Rs.30,000/- per month as salary from Jubiliyan Factory Bhainswal Bhagwanpur, Rurki (UK) by doing a job of Chief Chemist, whereas, she has no source of income and as such, petitioner be directed to pay maintenance pendente lite as well as litigation expenses to her. 4. Aforesaid claim put forth by respondent No.1, came to be resisted on behalf of petitioner by way of filing reply, wherein he claimed that petitioner never deserted respondent No.1, rather she of her own volition has been living separately since March, 2011, after birth of her baby. He alleged that he was forced to get the name of her baby incorporated in Panchayat record, but he did not get the name of her child entered in the Panchayat. The matter was challenged up to the Court of learned Additional Sessions Judge, Nahan, but due to financial constraints, he became helpless. Learned court below on the basis of pleadings adduced on record by respective parties, held petitioner herein liable to pay maintenance pendent lite @ Rs.7,000/- per month to respondent No.1, from the date of filing of the petition till final disposal of main petition. Besides above, court below also held petitioner liable to pay litigation charges to the tune of Rs.15,000/- to respondent No.1. In the aforesaid background, petitioner has approached this Court in the instant proceedings, praying therein to set aside the aforesaid order, granting maintenance pendent lite. 5. Precisely the grouse as has been raised in the instant petition is that court below, while awarding a sum of Rs.7000/- per month in favour of respondent No.1, failed to take note of the fact that respondents No.1 & 2, are already in receipt of sum of Rs.4000/- per month pursuant to order passed by competent court of law in proceedings under Section 125 Cr.P.C. 6. Mr. Ashok Tyagi, learned counsel representing the petitioner, while making this Court to peruse the material available on record, vis-à-vis reasoning assigned in the order impugned in the instant proceedings, contended that since, respondents failed to prove the salary of the petitioner to the tune of Rs.30,000/-, there was no occasion, if any, for the court below to award maintenance pendente lite @ Rs.7000/- per month. Lastly, Mr. Lastly, Mr. Tyagi, argued that though there is no evidence available on record, that petitioner is in receipt of Rs.30,000/- per month, but even if it is presumed that he is in receipt of Rs.30,000/- per month, he cannot be compelled to pay huge amount of Rs.11,000/- (Rs.7000/- as maintenance pendent lite plus Rs.4,000/- as maintenance awarded under Section 125 Cr.P.C) especially when he has other responsibilities to fulfill. 7. Having heard learned counsel representing the parties and perused material available on record, this Court finds that there is no dispute inter se parties that respondent No.1, is legally wedded wife of petitioner. If reply filed by petitioner in proceedings under Section 24 of Hindu Marriage Act, is perused, there is no dispute that after some time of marriage, respondent No.1 was compelled to leave her matrimonial house and at present, she along with her minor daughter resides at her maternal house. 8. True, it is that there is no documentary evidence available on record, suggestive of the fact that petitioner is in receipt of Rs.30,000/- per month as salary from Jubiliyan Factory Bhainswal Bhagwanpur, Rurki (UK), but petitioner has nowhere denied that he has been doing a job of Chief Chemist and as such, it can be safely presumed that petitioner must be in receipt of salary more than Rs.20,000/- per month. Since, respondent No.1, is compelled to live separately from petitioner, that too, along with her minor child, she is entitled to maintenance pendente lite, especially, when petitioner has himself instituted case for divorce against respondent No.1. Since, there is no material worth credence available on record that respondent No.1, has any source of income, it is bounden duty of petitioner being husband of respondent No.1 and father of respondent No.2, to provide adequate amount to respondents enabling them to meet their day to day expenses. 9. No doubt, order dated 13.02.2017, passed by learned Additional Chief Judicial Magistrate, Court No.1, Paonta Sahib, District Sirmaur (Annexure P-2) reveals that respondents are in receipt of Rs.4000/- as maintenance under Section 125 Cr.P.C., but definitely, that could not be a ground for the court below to reject the prayer made on behalf of the respondents for grant of maintenance pendente lite under Section 24 of Hindu Marriage Act, especially when such proceedings came to be instituted by petitioner-husband. However, court below while fixing amount to be paid as maintenance pendente lite ought to have taken into consideration amount, being received by respondents in other proceedings, i.e. under Section 125 Cr.P.C. Since, respondent No.1, has not been able to prove that monthly income of petitioner is Rs.30,000/- per month and she had categorically taken stand in proceedings initiated by her under Section 125 Cr.P.C, in the year 2014 that petitioner is in receipt of salary to the tune of Rs.20,000/-, sum of Rs.7000/- awarded by court below as maintenance pendente lite seems to be on higher side. Even if it is presumed that petitioner is in receipt of salary to the tune of Rs.25,000/-, even then, it would be difficult for him to pay sum of Rs.11,000/- to the respondents in total ( Rs.7000/- as maintenance pendente lite plus Rs.4,000/- as maintenance awarded under Section 125 Cr.P.C). 10. Consequently, in view of detailed discussion made hereinabove, though this Court finds no illegality and infirmity in the impugned order, granting maintenance pendente lite, but maintenance awarded @ Rs.7000/-, is reduced from Rs.7000/- to Rs.5000/-, however, same shall be payable from the date of filing of application till final disposal of the divorce petition filed under Section 13 of Hindu Marriage Act. Needless to say, aforesaid sum of Rs.5000/- shall be payable in addition to sum of Rs.4000, granted by competent court of law under Section 125 Cr.P.C. Arrears on account of aforesaid maintenance awarded by court below, if not already deposited, be deposited, positively, within a period of four weeks, in the trial court, whereafter, respondents shall be at liberty to file appropriate application seeking release of the same. The petition stands disposed of accordingly alongwith all pending applications. Interim directions, if any, stand vacated.