Whether wife is entitled to get interim maintenance if husband takes contrary plea?

IN THE HIGH COURT OF RAJASTHAN (JODHPUR BENCH)
D.B. Civil Misc. Appeal No. 197/2017
Decided On: 20.01.2017
Sunil Soni
Vs.
Khushbu Soni

 

Hon’ble Judges/CoramGopal Krishan Vyas and Goverdhan Bardhar, JJ.

 

 
Citation: AIR 2017(NOC) 117 Raj
1. The instant appeal as been filed by the appellant, Dr. Sunil Soni, under Section 19 of the Family Court Act, against the order dated 29th of November, 2016 passed by learned Judge, Family Court, Bhilwara in Civil Case No. 227/2016 (Smt. Khushbu Soni v. Sunil Soni), whereby the learned Family Court, Bhilwara, allowed the application filed by the respondent/wife under Section 24 of the Hindu Marriage Act, 1955 and granted monthly cccc of Rs. 8000/- to the respondent/wife in the proceedings initiated by the appellant/husband under Section 9 of the Hindu Marriage Act, 1955 (Act of 1955) for restitution of conjugal rights.
2. Learned counsel for the appellant submitted that marriage of the appellant with respondent solemnized on 09.03.2015, however, the relationship of the appellant with respondent did not remain cordial since very beginning because respondent/wife was having illicit relations with Wasim Khan. It is also submitted that due to cruel behaviour of her with the appellant and his family members. The appellant and respondent are living separately from 14.05.2015.
3. However, with a view to settle matrimonial life, the appellant filed an application under Section 9 of the Act of 1955 for restitution of conjugal rights on 10.07.2015, in which after service of notice, the respondent/wife filed an application u/s. 24 of the Act of 1955 claiming maintenance of Rs. 25,000/- and Rs. 5000/- towards expenses for attending the court on each date and further a sum of Rs. 40,000/- towards the litigation expenses.
4. The appellant filed detail reply to the said application u/s. 24 of the Act of 1955 and denied the claim of maintenance on the ground that he is not getting 60,000/- rupees salary and more so at present he is under probation and is getting only Rs. 20,000/- per month. It was further stated that for about 12 years he stayed separate from his parents in connection with his studies and he had taken huge loan for study, which still due, therefore, he is not in a position to pay maintenance as claimed by the respondent. It was also stated that respondent herself is having qualification of Bachelor in Dental Surgery, and doing private practice and she belong to settled family as her father and brothers are also doctors. Another brother is running a medical store, therefore, she is not entitled for maintenance as claimed by her.
5. In the reply it is also stated by the appellant that respondent is having illicit relations with one Wasim Khan and used to remain busy on phone with Wasim Khan and she admitted that she entered ‘Nikah’ with Wasim Khan four years back, therefore, on this ground she is entitled for any maintenance. Certain documents were also filed by the appellant along with reply to the application u/s. 24 of the Act of 1955, but the learned court below allowed the application filed by the respondent u/s. 24 of the Act of 1955 and granted maintenance of Rs. 8000/- per month and Rs. 5000/- towards litigation expenses and Rs. 1600/- total wards for attending the court. It is further ordered that aforesaid maintenance shall be paid from the date of filing application i.e. 16.12.2015.
6. Learned counsel for the appellant submitted that the order impugned dated 29.11.2016 is arbitrary and illegal because the respondent herself is possessing the degree of Bachelor in Dental Surgery and certain documents were submitted by the appellant with his reply to show that she is earning member as she is having her own clinic and doing job in private hospital at Fatehpur. Furthermore, she belongs to a settled family, therefore, she is not entitled for any maintenance, however, the learned Judge, Family Court, Bhilwara, did not consider the submissions and documents filed by the appellant and thus has erred in granting interim maintenance of Rs. 8000/- per month to the respondent/wife.
7. Learned counsel for the appellant further submitted that it is settled law that when wife deserts or left the company of her husband at her will, and lives in the life of adultery, then, she is not entitled to any type of maintenance of the husband. A specific plea was taken in the reply that the respondent is having illicit relation with one Wasim Khan and that she had entered ‘Nikah’ with sais Wasim Khan, therefore, there is no question to get any maintenance from the appellant but the court below has committed gross error in passing the impugned order for granting interim maintenance of Rs. 8000/- per month. It is also argued that the order amounts discrimination with the appellant and would also deprive his source of livelihood which would be violative of Articles 14 and 16 of the Constitution of India, therefore, the order impugned may kindly be set aside.
8. Learned counsel for the appellant invited our attention towards the judgment of Delhi High Court in the caste of Rupali Gupta v. Rajat Gupta, reported in MANU/DE/2384/2016 and submitted that in the said judgment while following the verdict of Hon’ble Supreme Court, the Delhi High Court held that appellant/wife who is a qualified chartered accountant and in profession since 2003 need not be granted interim maintenance u/s. 24 of the Act of 1955.
9. After hearing the learned counsel for the appellant, first of all it is required to be observed that on the one hand, appellant himself has filed u/s. 9 of the Act of 1955 for restitution of conjugal rights, though he has levelled allegations of adultery against his wife, and on the other hand, he took a plea in the reply to the application u/s. 24 of Act of 1955 that his wife (respondent) is having illicit relations with one Wasim Khan and living in adultery. In our opinion, that issue is required to adjudicated by the court in the proceedings initiated by the appellant by way of filing application under Section 9 of the Act of 1955. When the appellant is taking plea of respondent having illicit relation with Wasim Khan, then, it cannot be said that his application u/s. 9 of the Act of 1955 is bonafide. More so, it is obvious that on the one hand the appellant has leveled allegations about the character of respondent/wife and on the other hand he is seeking a decree of restitution of conjugal rights u/s. 9 of the Act of 1955. In our opinion, the intention of the appellant is obvious that somehow or the other he does not want to live with the respondent/wife and initiated the proceedings u/s. 9 of the Act of 1955, in which respondent/wife filed application claiming maintenance u/s. 24 of the Act of 1955.
10. It may be true that certain documents viz. PAN card of respondent, and other documents with respect to character of respondent were filed before the court below but at the same time, it is obvious that no documentary evidence has been filed by the appellant to show the income of the respondent except pleadings being made in the reply, that too without any supporting documents.
11. As far as case law cited by the learned counsel for the appellant in the case of Rupa Gupta (supra) is concerned, the same is altogether different and is not applicable in the present controversy.
12. In view of above, there is no merit in the appeal filed by the appellant to quash the order dated 29.11.2016 passed by learned Judge, Family Court, Bhilwara. Accordingly, the present appeal is hereby dismissed.

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