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2023 DIGILAW 590 (RAJ)

Sunita Chaudhary v. Manoj Kumar

2023-02-22

ASHOK KUMAR GAUR, ASHUTOSH KUMAR

body2023
JUDGMENT : Ashok Kumar Gaur, J. - The present order will dispose of D.B. Civil Misc. Application No.01/2022 dated 04.05.2022, filed under section 24 of the Hindu Marriage Act, 1955 (hereafter 'the Act of 1955') for granting maintenance pendente lite to the applicant/appellant(wife). 2. Learned counsel for the applicant Mr.M.S. Saharan has submitted that the present D.B. Civil Misc. Appeal No.5316/2018 has been filed by the applicant-wife challenging the judgment and decree dated 08.10.2018 passed by the Family Court No.1, Jaipur, whereby the Family Court has accepted the application filed by the respondent-Husband under Section 13(ia) and 13(ib) of the Act of 1955 and decree of divorce has been passed in favour of the respondent-husband, dissolving the marriage solemnized between the applicant-wife and respondent-husband dated 01.12.1999. 3. Learned counsel for the applicant-wife submitted that the respondent-husband is an Army Officer and he was paying monthly maintenance allowance to the applicant and on account of seeking voluntary retirement from service of Army, the respondent has not paid the maintenance during pendency of the present appeal. 4. Learned counsel for the applicant submitted that initially an order dated 01.11.2012, was passed by the Army Authorities, whereby sanction was granted for deduction of 10% per month from the pay and allowance of the respondent husband, in view of the provisions contained in section 90(i) of the Army Act, 1950 read with Rule 193 of Army Rules, 1954. 5. Learned counsel for the applicant submitted that another order dated 20.07.2013 was passed by the Army Authorities whereby sanction was accorded for deduction of 25% per month from the pay and allowance of the respondent-husband and payment was to be made to the applicant-wife with effect from 16.01.2013 and bifurcation was made of total 25%, whereby the applicant-wife was sanctioned 19.5% and son of the applicant and respondent, Master Siddhant was sanctioned 5.5%. 6. Learned counsel further submitted that the requisite affidavit of the applicant has been filed with the present application, as has been directed by the Apex Court in the case of Rajnesh v. Neha & Anr. reported in [2021 (1) WLC (SC) Cri. 1: (2021)2 SCC 324 ]. 7. Learned counsel submitted that the applicant is neither working nor earning anything to support herself. reported in [2021 (1) WLC (SC) Cri. 1: (2021)2 SCC 324 ]. 7. Learned counsel submitted that the applicant is neither working nor earning anything to support herself. Learned counsel submitted that the applicant is also giving her complete time for shaping up the future of their son, who is a student and plea is raised that the respondent-husband is under a legal obligation to maintain the applicant and their son and as such, prayer is made to deposit the maintenance amount in the applicant's Bank account, as was done earlier and arrears of maintenance are also claimed by the applicant. 8. Learned counsel for the applicant has drawn attention of this Court towards the affidavit filed by the applicant relating to assets and liabilities of the respondent. 9. This Court deems it proper to quote para 7 of the affidavit relating to general monthly expenses of the applicant claimed by her, which reads as follows:- House Rent Rs.17,000 House maintenance Rs.5,000 Electricity Rs.4,000 Food & essential things Rs.20,000 Transport Rs.9,000 Clothing Rs.5,000 Total Rs.60,000 PM 10. Learned counsel for the applicant has also referred to the order of the Apex Court dated 28.11.2014, whereby the respondents in Special Leave to Appeal i.e. Hari Singh and Others were directed to pay a sum of Rs.10,000/- per month to the applicant with effect from 01.12.2014 until the son of applicant and the respondent, attains the age of 21 years, so as to enable the applicant to arrange for alternative accommodation. 11. Learned counsel for the applicant has also referred to the different expenses which are borne by son of the applicant and the respondent and as per clause (4) of the affidavit following expenses, are said to be incurred by the son:- ECHS card and food Rs.20,000 Petrol Rs.4,000 Transport Rs.5,000 Other transport Rs.4,000 Phone recharge Rs.2,000 Tuition fees Rs.10,000 Games and curricular Rs,9,000 Stationary Rs.2,000 Medical Rs.2,500 Total Rs.58,500 PM 12. Learned counsel for the applicant has also referred to the details given by the applicant in the affidavit relating to income assets and liabilities of the respondent-husband and same are quoted as hereunder:- DSOP - Rs.45,36,000/- Leave Encashment - Rs.17,95,000/- Commutation - Rs.45,00,000/- Gratuity - Rs.21,00,000/- Total : Rs.1,29,31,000/- Monthly pension Rs.84,500/- + DA 13. Learned counsel for the applicant has also referred to the details given by the applicant in the affidavit relating to income assets and liabilities of the respondent-husband and same are quoted as hereunder:- DSOP - Rs.45,36,000/- Leave Encashment - Rs.17,95,000/- Commutation - Rs.45,00,000/- Gratuity - Rs.21,00,000/- Total : Rs.1,29,31,000/- Monthly pension Rs.84,500/- + DA 13. Learned counsel for the applicant submitted that as per Section 24 of the Act of 1955, the applicant does not have any independent income sufficient for maintaining herself and as such, considering the income of the respondent-husband, this Court may exercise its power to award a reasonable amount as maintenance during pendency of appeal before this Court. 14. Per contra, learned Senior Counsel for the respondent Mr.R.N. Mathur has opposed the prayer sought by the applicant in her application for grant of maintenance during pendency of the appeal and has made following submissions:- 14.1. The respondent-husband has a decree of divorce in his favour and looking to the nature of allegation of causing mental cruelty to the respondent-husband and such allegation being proved against the applicant, the conduct of the applicant does not entitle her for grant of any maintenance. 14.2. The applicant has been non-cooperative through out i.e. prior to litigation and after initiation of litigation and she not only humiliated the respondent but also lowered down his prestige before the employer i.e. Army Authorities and on account of such conduct, the appellant does not deserve any grant of maintenance. 14.3. The applicant, in the application filed for grant of maintenance under Section 24 of the Act of 1955, has not quantified any amount and in absence of quantification of any amount, this Court may not pass any order of granting maintenance and no quantification of amount may be made. 14.4. The qualification possessed by the applicant shows that she is having qualification of M.Sc. (Chemistry), STC, B.Ed., M.Ed. and as such, having such requisite qualifications, she is eligible to get any job in Government/Private Sector. 14.5. The applicant is not willing to work and she is able bodied and a person with qualification to work, if does not want to work, may not be awarded any maintenance during litigation period. 14.6. (Chemistry), STC, B.Ed., M.Ed. and as such, having such requisite qualifications, she is eligible to get any job in Government/Private Sector. 14.5. The applicant is not willing to work and she is able bodied and a person with qualification to work, if does not want to work, may not be awarded any maintenance during litigation period. 14.6. The respondent has since retired and has responsibility of maintaining his parents, the amount of 25% of his pay & allowances, as earlier granted by the Army authorities to the applicant, as maintenance, may not be relevant consideration in the changed circumstances. 14.7. The requisite affidavit filed by respondent-husband shows that the amount mentioned by the applicant in her affidavit is highly exaggerated. 15. Learned Senior Counsel refers to the affidavit filed by the respondent wherein total assets of the respondent are reflected as under:- Total assets of the respondent:- 1) Investment in mutual funds : Rs.29.25 lac 2) In bank account : Rs.90,000/-. 3) Fixed deposit : Rs.27,375/- Monthly income by way of pension : Gross - Rs.1,10,685/- Deduction - Rs.46,044/- Net Amount - Rs.64,641/- 16. Learned Senior Counsel on the basis of the aforesaid figures submitted that since the respondent is getting only Rs.64,641/- as monthly pension, as such, the respondent would not be in a position to pay the maintenance amount to the applicant. 17. Learned Senior Counsel has submitted that details of expenses of the respondent have also been given in the affidavit, which read as follows:- House maintenance Rs.8,000/- Electricity and water Rs.4,000/- Food and essentials Rs.25,000/- Transport and petrol Rs.12,000/- Clothing & general expenses Rs.8,000/- Legal expenses Rs.15,000/- Looking after senior citizen parents Rs.35,000/- Total Rs.1,07,000/-PM 18. Learned Senior Counsel on the basis of the above details submitted that the respondent himself has to incur much huge expenses from the amount he is getting of pension and as such, no maintenance may be granted to the applicant by this Court. 19. Learned Senior Counsel submitted that Section 24 of the Act of 1955, requires that a person who is claiming maintenance should not have independent income sufficient for her/his support and further the amount has to be reasonable, to be assessed by the Court and as such, both the parameters since are not fulfilled by the applicant, the application filed by the applicant under Section 24 of the Act of 1955 may be dismissed. 20. 20. We have heard learned counsel for the parties and perused the material available on record. 21. This Court finds that Section 24 of the Act of 1955 has been enacted for the purpose of granting maintenance pendente lite and expenses of proceedings under the Act. 22. This Court finds that primary duty of the Court is to find out as whether wife has independent income sufficient to support herself. 23. This Court is further required to consider that as per Section 24 of the Act of 1955, the wife who does not have independent income sufficient for her maintenance, has to be given reasonable amount for her support. The reasonable amount is required to be considered and quantified after taking into account the income, liabilities and other relevant factors of the party who is supposed to give maintenance to the aggrieved person. The reasonableness of amount to be quantified has to determined, in each case, by considering the relevant material which is placed before the Court and the mandatory affidavit filed by the parties requires due consideration while assessing the reasonable amount. 24. This Court finds that the Apex Court has laid down uniform and consistent standards and timely disposal of applications seeking maintenance under different statutes. The Apex Court in the case of Rajnesh v. Neha & Anr. (supra) after considering the various provisions of the Hindu Marriage Act, Hindu Adoptions and Maintenance Act, 1956, Special Marriage Act, 1954, the Protection of Women from Domestic Violence Act, 2005 and Section 125 Cr.P.C. has laid down the definite parameters for the purpose of grant of maintenance. The relevant paragraphs of the aforesaid judgment, are as under:- "77. The objective of granting interim/permanent alimony is to ensure that the dependant spouse is not reduced to destitution or vagrancy on account of the failure of the marriage, and not as a punishment to the other spouse. There is no straitjacket formula for fixing the quantum of maintenance to be awarded. 78. The objective of granting interim/permanent alimony is to ensure that the dependant spouse is not reduced to destitution or vagrancy on account of the failure of the marriage, and not as a punishment to the other spouse. There is no straitjacket formula for fixing the quantum of maintenance to be awarded. 78. The factors which would weigh with the Court inter alia are the status of the parties; reasonable needs of the wife and dependant children; whether the Applicant is educated and professionally qualified; whether the Applicant has any independent source of income; whether the income is sufficient to enable her to maintain the same standard of living as she was accustomed to in her matrimonial home; whether the Applicant was employed prior to her marriage; whether she was working during the subsistence of the marriage; whether the wife was required to sacrifice her employment opportunities for nurturing the family, child rearing, and looking after adult members of the family; reasonable costs of litigation for a non-working wife. 80. On the other hand, the financial capacity of the husband, his actual income, reasonable expenses for his own maintenance, and dependant family members whom he is obliged to maintain under the law, liabilities if any, would be required to be taken into consideration, to arrive at the appropriate quantum of maintenance to be paid. The Court must have due regard to the standard of living of the husband, as well as the spiralling inflation rates and high costs of living. The plea of the husband that he does not possess any source of income ipso facto does not absolve him of his moral duty to maintain his wife if he is able-bodied and has educational qualifications. 81. A careful and just balance must be drawn between all relevant factors. The test for determination of maintenance in matrimonial disputes depends on the financial status of the Respondent, and the standard of living that the Applicant was accustomed to in her matrimonial home. The maintenance amount awarded must be reasonable and realistic, and avoid either of the two extremes i.e. maintenance awarded to the wife should neither be so extravagant which becomes oppressive and unbearable for the Respondent, nor should it be so meagre that it drives the wife to penury. The sufficiency of the quantum has to be adjudged so that the wife is able to maintain herself with reasonable comfort. 84. The sufficiency of the quantum has to be adjudged so that the wife is able to maintain herself with reasonable comfort. 84. The Delhi High Court in Bharat Hedge v. Smt. Saroj Hegde [140 (2007) DLT 16] laid down the following factors to be considered for determining maintenance: "1. Status of the parties. 2. Reasonable wants of the claimant. 3. The independent income and property of the claimant. 4. The number of persons, the non-applicant has to maintain. 5. The amount should aid the Applicant to live in a similar lifestyle as he/she enjoyed in the matrimonial home. 6. Non-Applicant's liabilities, if any. 7. Provisions for food, clothing, shelter, education, medical attendance and treatment etc. of the applicant. 8. Payment capacity of the non-applicant. 9. Some guess work is not ruled out while estimating the income of the non-applicant when all the sources or correct sources are not disclosed. 10. The non-applicant to defray the cost of litigation. 11. The amount awarded Under Section 125 Code of Criminal Procedure is adjustable against the amount awarded under Section 24 of the Act." 85. Apart from the aforesaid factors enumerated hereinabove, certain additional factors would also be relevant for determining the quantum of maintenance payable. 91. The living expenses of the child would include expenses for food, clothing, residence, medical expenses, education of children. Extra coaching classes or any other vocational training courses to complement the basic education must be factored in, while awarding child support. Albeit, it should be a reasonable amount to be awarded for extracurricular/coaching classes, and not an overly extravagant amount which may be claimed." 25. This Court further finds that in the present case admittedly the applicant-wife does not have any income sufficient for her maintenance. The fact, as asserted by the applicant, of not having independent income has not been refuted by the respondent-husband in the affidavit filed by him or in the reply filed to the application. 26. This Court finds that the plea taken by the respondent-husband that the applicant-wife is duly qualified and can get a job anywhere either in Private or Government Sector and she despite being an able bodied person is not working, such considerations are wholly irrelevant for deciding the application filed under Section 24 of the Act of 1955. 27. 26. This Court finds that the plea taken by the respondent-husband that the applicant-wife is duly qualified and can get a job anywhere either in Private or Government Sector and she despite being an able bodied person is not working, such considerations are wholly irrelevant for deciding the application filed under Section 24 of the Act of 1955. 27. The possession of a particular qualification or having a skill of doing a job will not result into reaching to a conclusion of having independent income sufficient for maintenance. The possession of qualification and earning on the basis of said qualification are altogether two different concepts and it cannot be allowed to be pleaded that only on account of possessing certain qualification, the person would have his sufficient income to support herself and as such, the submission of counsel for the respondent-husband, is liable to be rejected. 28. The submission of learned counsel for the respondent husband that allegation of cruelty has been duly proved against the applicant-wife and further she has been non-cooperative, suffice it to say by this Court that these allegations are wholly irrelevant for deciding the application filed under Section 24 of the Act of 1955 and as such, plea raised by the learned Senior Counsel for the respondent, is liable to be rejected. 29. The submission of learned Senior Counsel for the respondent-husband that there has been no quantification of any amount in the application and since even reasonable amount has not been quantified, this Court may not entertain the application filed under Section 24 of the Act of 1955, suffice it to say by this Court that if the applicant-wife has filed an affidavit giving details of different expenses to be incurred by her and her son and further counter affidavit has also been filed by the respondent-husband, it is always open to the Court to arrive at the conclusion to award reasonable amount after taking into account, the relevant factors pleaded by both the parties before the Court. 30. This Court finds that the respondent-husband in the present case has himself admitted about incurring of expenses of Rs.1,07,000/- per month as per the affidavit given by him. 31. 30. This Court finds that the respondent-husband in the present case has himself admitted about incurring of expenses of Rs.1,07,000/- per month as per the affidavit given by him. 31. This Court further finds that the details of total assets of the respondent husband have also been given in the affidavit, where he has received substantial amount and invested the same in mutual funds and fixed deposit. 32. This Court finds that only on account of getting pension of Rs.64,641/-after certain deductions, the respondent-husband cannot be allowed to plead that he does not have sufficient money to pay to his estranged wife. 33. This Court further finds that the post retiral benefits which have been received by the respondent-husband have also been invested by him and the same investment must also be resulting into payment of interest and other benefits accruing from time to time. 34. This Court finds that only on the basis of certificate issued by the Authorities relating to pension of the petitioner, the same cannot be a criterion for depriving the appellant-wife from getting reasonable amount for her survival. 35. This Court also finds that son from the wedlock of appellant and respondent, is entitled for grant of maintenance, even as per Section 24 of the Act of 1955. The Apex Court as back in 1997, recognized the right of dependent child to get maintenance under Section 24 of the Act of 1955. The Apex Court in the case of Jasbir Kaur Sehgal v. District Judge, Dehradun reported in [ (1997)7 SCC 7 ] has laid down the law that the dependent child if staying with the mother, will be entitled for maintenance. 36. This Court, in the present facts of the case, finds that earlier the Army Authorities had granted 25% of total pay and allowance of the respondent-husband as maintenance, as per provisions of the Army Act and Rules made thereunder and since now the respondent-husband is no more in active service of Army, reasonable amount would have to be determined by this Court, by considering the relevant factors. 37. This Court, accordingly, finds that the instant application (D.B. Civil Misc. Application No.112022 dated 04.05.2022) filed by the applicant deserves to be allowed and the same is hereby allowed and following maintenance amount is directed to be paid by the respondent-husband to the applicant and her son, during pendency of the present appeal. 37. This Court, accordingly, finds that the instant application (D.B. Civil Misc. Application No.112022 dated 04.05.2022) filed by the applicant deserves to be allowed and the same is hereby allowed and following maintenance amount is directed to be paid by the respondent-husband to the applicant and her son, during pendency of the present appeal. Maintenance to Applicant-Wife House Rent Rs.15,000 Electricity Rs.5,000 Food and essential things Rs.20,000 Total per month Rs.40,000 Maintenance to son-Master Siddhant ECHS card and food Rs.15,000 Transport Rs.3,000 Phone Recharge Rs.1,000 Stationary Rs.1,000 Total per month Rs.20,000 Less: Rs.10,000/- (already receiving under the order dated 28.11.2014 passed by the Apex Court) Thus, in total the applicant-wife and son-Master Siddhant would be entitled to the maintenance to the tune of Rs.50,000/- per month [Rs.40,000 (wife)+ Rs.10,000 (son)]. Accordingly, it is directed to the respondent-husband to deposit the aforementioned maintenance amount (Rs.50,000/-) in the Savings Bank Account of the applicant-wife, on month to month basis, from the date of filing of the application i.e. May, 2022 and arrears of maintenance, i.e., Rs.50,000/-per month be also paid by the respondent-husband to the applicant-wife within a period of two months from the date of receipt of certified copy of the present order. 38. List the Civil Misc. Appeal after four weeks.