Neeraj Kumar Sahu v. Pinki Devi w/o Neeraj Kumar Sahu
2024-06-14
SUJIT NARAYAN PRASAD
body2024
DigiLaw.ai
ORDER : Sujit Narayan Prasad, J. 1. The instant petition, under Article 227 of the Constitution of India, is directed against the order dated 22.10.2020 passed by learned Additional Principal Judge, Additional Family Court, Ranchi in the Original (M.T.S) Suit No. 21/2017, whereby and whereunder, the petition filed under Section 24 of the Hindu Marriage Act, 1955 has been allowed by directing the petitioner-husband to pay Rs. 5,000/- per month to the respondent-wife and also Rs. 5,000/- per month to the minor daughter as interim maintenance pendente lite to the respondent (wife) of the date of the passing of the order. 2. The facts leading to the filing of the instant petition is that one suit being Original (M.T.S) Suit No. 21/2017 was filed under Section 13(1) (i-a) of the Hindu Marriage Act, 1955 for divorce. During pendency of the aforesaid suit, a petition was filed under Section 24 of the Hindu Marriage Act, 1955 for claiming interim maintenance pendente lite for sustenance of the wife as also the daughter. The learned Court allowed the said petition by directing the petitioner to make payment of Rs. 5,000/- per month to the respondent wife and Rs. 5,000 per/- month to the minor daughter, which is the subject matter of the instant petition. 3. Mr. Ashim Kr. Sahani, learned counsel appearing for the petitioner-husband has submitted that while passing the impugned order the learned Court has not taken into consideration the relevant documents, i.e., Income Tax Returns filed by the respondent-wife, which shows that she is fully capable to bear the expense incurred in the divorce proceeding. 4. It has further been contended that the learned Court has not taken into consideration the fact that the husband, the petitioner herein, is only earning a meagre amount of Rs. 10,000/- and out of that Rs. 10,000/- the direction was passed for making payment of Rs. 5,000/- in favour of the respondent-wife and Rs. 5,000/- in favour of the daughter, which if allowed to be remained then the survival of the petitioner will be more difficult. 5. It has further been submitted that respondent-wife has deserted him without any reasonable cause, hence she is not entitled to claim any interim maintenance from the petitioner-husband. 6.
5,000/- in favour of the respondent-wife and Rs. 5,000/- in favour of the daughter, which if allowed to be remained then the survival of the petitioner will be more difficult. 5. It has further been submitted that respondent-wife has deserted him without any reasonable cause, hence she is not entitled to claim any interim maintenance from the petitioner-husband. 6. The further ground has been taken that the other documents, which were placed before the learned trial Court, has not been taken into consideration while passing such direction in the impugned order. 7. Mrs. Nivedita Kundu, learned counsel for the respondent-wife has submitted by defending the impugned order that whatever is being said on behalf of the petitioner-husband that a boutique is being run by the respondent wife is not factually correct, rather, the same is owned by the husband, the petitioner herein. 8. It has been contended that the respondent wife is having no means of source to sustain due to the reason that she lives in Ranchi along with the daughter, and therefore, the surviving cost based upon the Price Index since is high, hence the amount which has been ordered to be given as interim maintenance is a meagre amount which may not be interfered with. 9. Mr. A.K. Sahani, learned counsel for the husband-petitioner, in course of the argument has submitted that so far as the amount as has been directed to be paid in favour of the daughter is concerned, the same is not being questioned on the ground since the daughter has taken birth from the wedlock of the petitioner and the respondent wife herein, hence he is not questioning the amount that has been ordered to be paid in favour of daughter. 10. This Court has heard the learned counsel for the parties, gone across the finding recorded by the learned court in the impugned order. 11. The admitted position here is that the petitioner-husband has filed a suit for divorce under Section 13(1) (i-a) of the Hindu Marriage Act, 1955. 12. During pendency of the said suit, the petition under Section 24 of the Hindu Marriage Act, 1955 has been filed by the respondent-wife for the purpose of issuance of direction upon the husband to make payment for the maintenance of respondent-wife and her daughter. 13.
12. During pendency of the said suit, the petition under Section 24 of the Hindu Marriage Act, 1955 has been filed by the respondent-wife for the purpose of issuance of direction upon the husband to make payment for the maintenance of respondent-wife and her daughter. 13. At this juncture, the reference of Section 24 of the Act, 1955 is required to be made herein which reads as under: “24. Maintenance pendente lite and expenses of proceedings.—Where in any proceedings 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.]” 14. It is evident from the provision as made under Section 24 of the Act, 1955 that the very object of the said Act is to provide the means to sustain so that there may be sustenance by way of survival as also in order to meet out the expenditure which has to be incurred to contest this suit. 15. It is further evident that the Section 24 of the Act 1955 empowers the court in any proceeding under the Act, if 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 any one of them order the other party to pay to the petitioner the expenses of the proceeding and monthly maintenance as may seem to be reasonable during the proceeding, having regard to also the income of both the applicant and the respondent. Heading of Section 24 of the Act is “Maintenance pendente lite and expenses of proceedings”.
Heading of Section 24 of the Act is “Maintenance pendente lite and expenses of proceedings”. The section, however, does not use the word “maintenance”; but the word “support” can be interpreted to mean as Section 24 is intended to provide for maintenance pendente lite. 16. The Hon’ble Apex Court in the case of Manish Jain v. Akanksha Jain, (2017) 15 SCC 801 has categorically observed that the court exercises a wide discretion in the matter of granting alimony pendente lite but the discretion is judicial and neither arbitrary nor capricious and it is to be guided on sound principles of matrimonial law and to be exercised within the ambit of the provisions of the Act. The relevant paragraph of the aforesaid judgment is being quoted as under: “12. The Court exercises a wide discretion in the matter of granting alimony pendente lite but the discretion is judicial and neither arbitrary nor capricious. It is to be guided on sound principles of matrimonial law and to be exercised within the ambit of the provisions of the Act and having regard to the object of the Act. The Court would not be in a position to judge the merits of the rival contentions of the parties when deciding an application for interim alimony and would not allow its discretion to be fettered by the nature of the allegations made by them and would not examine the merits of the case. Section 24 of the HM Act lays down that in arriving at the quantum of interim maintenance to be paid by one spouse to another, the Court must have regard to the appellant's own income and the income of the respondent.” 17. Thus, it is evident that Court exercises a wide discretion in the matter of granting alimony pendente lite but the discretion is judicial and neither arbitrary nor capricious. It is to be guided on sound principles of matrimonial law and to be exercised within the ambit of the provisions of the Act and having regard to the object of the Act. 18. Now adverting on to the facts of the instant case the respondent-wife has filed an application under Section 24 of the Act, 1955 by taking the plea that the petitioner-husband is a big businessman running the whole sale business of Craft, ladies item, etc.
18. Now adverting on to the facts of the instant case the respondent-wife has filed an application under Section 24 of the Act, 1955 by taking the plea that the petitioner-husband is a big businessman running the whole sale business of Craft, ladies item, etc. in the name and style of Craft Corner in Rangrej Gali Din-Bandhu Lane Upper Bazar, Main Road, Ranchi and from these sources he earns Rs. 2,00,000/- per month and apart from that one multistoried building, house and agricultural land and from these sources he also earns Rs. 1,00,000/- per month. 19. Thus, the respondent has taken the ground of earning of the petitioner husband approximately Rs. 3 lakhs per month. The ground has also been taken that petitioner is having no liability while on the other hand, the respondent-wife is to sustain herself along with her daughter and she has no any independent source of income. 20. However, the aforesaid fact has been disputed by the petitioner-husband by taking the ground that the boutique which is being said to be run by the petitioner is actually running in the name of the respondent-wife and he is only earning Rs.10,000/-. 21. The fact, which has been agitated on behalf of the respondent-wife of having a boutique in the district of Ranchi, has been disputed but the question herein is that the it is the husband who has filed the divorce suit then how the wife will be able to survive along with the daughter as also to meet out the expenditure which is being incurred in the litigation. 22. The law with respect to the pendente lite or permanent alimony is well-settled which depends upon the price index that is on the inflation rate. 23. This Court has examined the directions so passed by the learned court wherein Rs. 5,000/- which has been ordered to be paid in favour of the respondent wife is the only subject matter of the present petition, since, Mr. Sahani, learned counsel for the petitioner has confined his contention so far as the maintenance interim pendente lite of Rs. 5,000/- is concerned which has been ordered to be paid in favour of the respondent wife. 24.
Sahani, learned counsel for the petitioner has confined his contention so far as the maintenance interim pendente lite of Rs. 5,000/- is concerned which has been ordered to be paid in favour of the respondent wife. 24. It appears that the learned trial court has dealt with the issue as to whether the respondent-wife has any independent source of income or not and after taking into consideration the rival submissions of the parties as also the documents available on record has come to the conclusion that since the ITR of the respondent-wife has been filed from the side of the petitioner-husband and he failed to explain its custody, as such as per the settled law held such document to be unauthorized document on the part of petitioner-husband which cannot be appreciated as a piece of evidence at this stage. 25. However, this Court, at this juncture, is not entering into the issue whether the said document i.e., ITR of the respondent-wife is authorizedly possessed by the petitioner-husband or not rather this Court in the facts and circumstances of the case is of view that the amount of interim maintenance pendente lite to the tune of Rs. 5,000/- is not such high amount which needs to be reduced. 26. Since the pendente lite of the interim maintenance depends upon the price index which depends upon the inflation rate and according to the considered view of this Court Rs. 5000 has been ordered to paid in favour of the respondent-wife while passing the order under Section 24 of the Act, 1955, which according to the considered view of this Court cannot be said to be unjustified. 27. Since the instant petition has been filed under Article 227 of the Constitution of India thus this Court also intends to go through the scope of Article 227 of the Constitution of India. 28. Dealing with the scope of Article 227 of the Constitution of India, Hon’ble Apex Court in the case of Shalini Shyam Shetty Vrs. Rajendra Shankar Patii, reported in (2010) 8 SCC 329 has been pleased to laid down therein regarding the scope of Article 227 which relates to the supervisory powers of the High Courts and by taking aid of the judgment rendered by the Full Bench of Calcutta High Court in the case of Dalmia Jain Airways Ltd. Vrs.
Rajendra Shankar Patii, reported in (2010) 8 SCC 329 has been pleased to laid down therein regarding the scope of Article 227 which relates to the supervisory powers of the High Courts and by taking aid of the judgment rendered by the Full Bench of Calcutta High Court in the case of Dalmia Jain Airways Ltd. Vrs. Sukumar Mukherjee, reported in AIR 1951 Calcutta 193, wherein it has been laid down that Article 227 of the Constitution of India does not vest the High Court with limitless power which may be exercised at the court’s discretion to remove the hardship of particular decisions. The power of superintendence confers power of a known and well recognized character and should be exercised on those judicial principles which give it its character. In general words, the High Court’s power of superintendence is a power to keep the subordinate courts within the bounds of the authority, to see that they do what their duty requires and that they do it in a legal manner. 29. The power of superintendence is not to be exercised unless there has been; (a) An unwarranted assumption of jurisdiction, not vested in a court or tribunal; or (b) gross abuse of jurisdiction; or (c) an unjustifiable refusal to exercise jurisdiction vested in courts or tribunals. 30. Further, in the aforesaid judgment the Hon’ble Apex Court has taken aid of a judgment rendered in the case of Mani Nariman Daruwala Vrs. Phiroz N. Bhatena, reported in (1991) 3 SCC 141 wherein it has been laid down that in exercise of jurisdiction under Article 227, the High Court can set aside or reverse finding of an inferior court or tribunal only in a case where there is no evidence or where no reasonable person could possibly have come to the conclusion which the court or tribunal has come to. The Hon’ble Apex Court has made it clear that except to this limited extent the High court has no jurisdiction to interfere with the finding of facts. 31. Further, the judgment rendered by the Hon’ble Apex Court in the case of Laxmikant Revchand Bhojwani Vrs. Pratapsing Mohansingh Pardeshi, reported in (1995) 6 SCC 576 it has been laid down that the High Court under Article 227 cannot assume unlimited prerogative to correct all species of hardship or wrong decisions.
31. Further, the judgment rendered by the Hon’ble Apex Court in the case of Laxmikant Revchand Bhojwani Vrs. Pratapsing Mohansingh Pardeshi, reported in (1995) 6 SCC 576 it has been laid down that the High Court under Article 227 cannot assume unlimited prerogative to correct all species of hardship or wrong decisions. Its exercise must be restricted to grave dereliction of duty and flagrant abuse of fundamental principles of law and justice. 32. On the basis of the discussion made herein above and taking in to consideration of settled connotation of law, it is the considered view of this Court that the trial court has not committed any error in passing the impugned order dated 22.10.2020 warranting interference by this Court under Article 227 of the Constitution of India, since the court has exercised its discretionary power which is within its jurisdiction and suffer from no error. 33. Accordingly, the Civil Miscellaneous Petition, being devoid of any merit, is hereby dismissed 34. At this juncture, Mr. A.K. Sahani, learned counsel for the petitioner has submitted that whatever observation has been made while passing the order by the learned trial Court, the same may not prejudice while adjudicating the original suit. 35. The law is settled that any order passed under Section 24 of the Act, 1955 is an interim order having no bearing with the main suit. 36. In the aforesaid context it requires to mention here that an observation as made by the learned trial Court while passing the impugned order or dismissal of the present petition will not prejudice the case of the petitioner in course of the adjudication of the suit. 37. Accordingly, the instant petition stands disposed of.