No Maintenance pendente lite under HMA 24 who having independent source of Income

IN THE HIGH COURT OF UTTARAKHAND AT
NAINITAL

Appeal from Order No.423 of 2016

Smt. Mamta Rai …………..Appellant
Versus

Yogendra Kumar Rai ………. Respondent

Present: Mr. Pawan Mishra, Advocate for the appellant.
Mr. Neeraj Garg, Advocate for the respondent.

Coram:- Hon’ble Rajiv Sharma, J.
Hon’ble Sharad Kumar Sharma, J.

Reserved on: 19.06.2017 Delivered on: 22.06.2017 Per – Hon’ble Sharad Kumar Sharma, J.

This is a wife’s appeal, challenging the order dated 23.07.2016, passed by the Family Court, Dehradun, whereby her application filed under Section 24 of Hindu Marriage Act, in Suit No.932 of 2014, for dissolution of marriage has been rejected, and the case has been directed to be fixed for filing of written statement and framing of issues.

2. The respondent herein on 01.12.2014, had instituted a suit being Suit No.392 of 2014, for dissolution of marriage, which is said to have been solemnized on 09.11.2008. The said marriage was claimed to have been registered before the Registrar of Marriages, although the propriety of the registration has been questioned by the respondent (husband). The misunderstanding between the parties to the Section 13 proceedings has erupted more when according to the husband, the appellant before this Court has instituted the proceedings by lodging the FIR under Section 498(A), 504, 506 of IPC in Cantt Thana. Subsequently, in collusion with the police officials she also falsely got the husband robed in the proceedings under Section 376, with a sole intention to harass the family and entrapped them in criminal cases and also to malign the social image of the family.

3. It is the case of the husband that the learned Sessions Court after finding that the criminal allegations as leveled under Section 498A, 504, 506, 376, being based on false allegations, dismissed the proceedings and the respondent was acquitted honorably. The said issue is pending consideration in an appeal before this Court.

4. Taking the basis that the registration of marriage was fraudulently obtained the respondent (husband) had filed the proceedings under Section 467, 468, but, however, in the said case the final report was submitted against which a complaint/objection has been filed by the appellant. The appellant in accordance with the respondent is in the habit of lodging frivolous criminal complaints, against the respondent, as well as the family members, simply for the purposes to extract money. Due to inevitable circumstances as narrated in the plaint, the respondent was forced to institute the proceedings for dissolution of marriage by filing a petition under Section 13 on 01.02.2014.

5. During the pendency of the principal proceedings under Section 13, the appellant filed an application under Section 24 for seeking an interim maintenance pendente lite, to the tune of Rs.71,000/- for litigation expenses and Rs.40,000/- per month as maintenance. The said application under Section 24, was opposed by the husband contending that the basis of claim for grant of pendente lite maintenance is absolutely untenable, for the reason, in view of the language used under Section 24, either of the spouse has to establish their incapacity of having an source of earning. In support of his contention that the appellant has an independent earning, apart from the fact that the atrocities which he was suffering because of the multifarious litigation he placed on record and denied, the allegation of the appellant that the respondent (husband) was having an earning of Rs.90,000/- per month, is absolutely wrong because while working in the armed forces, there are certain deductions which are required to be made from the salary and most of the time he receives round about a sum of Rs.50,000/- in which he has to spend on himself as well as his aged parents and unmarried sister and he also owes a responsibility to maintain them, hence the income of the husband as projected in the application under Section 24 is concocted and without any basis.

6. In para 15 of the objection, the respondent has taken a plea that the ground of Section 24 as raised by the appellant that she is dependent upon her parents and having no source of earning, is based upon the concealment of facts. According to the respondent the truth is that the appellant is running a beauty parlor under the name and style of “Hype and Hot” from where she was operating a unisex saloon and cloth house, wherein she runs the business of garments, purses, accessories, temporary and permanent tattoos and piercings, from property no.112 of 113, Sayyad Mohalla, Dehradun. In the objection he further contended that the economic viability of the appellant has also been proved from the fact that she is the holder of two mobile numbers, and she has got a staff of about 8 to 10 boys and girls working in the parlor and as such she is having an earning of about Rs.50,000/- per month, and since she is having a separate income from boutique, which is on the first floor of the beauty parlor, from their too, she is earning a sum of Rs.50,000/- per month. As such she has an income of approximately Rs.1,00,000/- and she is not dependant and thus, the provisions of Section 24 will not be attracted.

7. She also initiated a proceeding under Section 23 Domestic Violence Act, which is pending before the Court of J.M., 1st, Dehradun, in which she had filed an application for maintenance, which has been rejected by the J.M., 1st, Dehradun.

8. Against the order of rejection of maintenance in domestic violence proceedings, the appellant has preferred an appeal under the Domestic Violence Act, and the Appellate Court under the Domestic Violence Act, had, by way of an interim arrangement, has granted the maintenance of Rs.5,000/- per month, which she is receiving. According to the respondent this fact of being in receipt of Rs.5,000/- as maintenance in Domestic Violence proceedings has been concealed in the application under Section 24. As such according to the respondent the application under Section 24 ought to have been rejected.

9. On the exchange of pleading, the application under Section 24 came up for consideration before the Family Court, which has been rejected by the impugned order dated 23.07.2016.

10. Heard Mr. Pawan Mishra, learned counsel for the appellant and Mr. Neeraj Garg, learned counsel for the respondent.

11. The learned Family Court took the fact into consideration that the application under Section 24, since is based on concealment of fact, coupled with the fact that after the marriage being solemnized between the appellant and respondent on 09.11.2008, they had a happy tour to Himachal Pradesh, Pathankot, Dharamshala, etc, shows that the respondent had always been willing to discharge his obligations and they have lived happily together. The learned Family Court after considering the affidavit paper no.29A, filed by the appellant came to the conclusion that in the affidavit, thus submitted by her, she has admitted the fact that she has undergone the training to run the business of beauty parlor, because according to the affidavit of the appellant, she wanted to have a source of earning. This statement made in para 29A would amount to be an admission on the part of the appellant that she is working and having a Saloon in the name and style of “Hype and Hot” saloon. The Court also took into consideration the fact that the photographs which have been placed on record, which the appellant has contended, as to be the photographs pertaining to the training, were not accepted and the Court after going through those photographs placed as an evidence, came to the conclusion, that, it does not reveal that the appellant was engaged in a training program, rather she was shown to be in the process of doing make-up of a female which the Court prima facie found that “Hype and Hot” saloon is a modernize saloon, and it is conducted by the appellant.

12. To support the fact that from the accommodation in occupation of the appellant, the saloon is being operated, a rent deed was also placed on record showing the rent to be Rs.45,000/- to 50,000/- per month, which goes without showing that no one would be able to pay such a hefty amount of rent without having an earning. As such it was inferred by the Court that looking to the documents and evidence on record, the appellant is engaged in her personal business of running a beauty parlor and has got sufficient earning to maintain herself. The appellant to overcome the aforesaid version and the grounds taken by the respondent while contesting the application under Section 24, developed a new case that the saloon under the name of “Hype and Hot” is owned by her sister Smt. Simpal Singh. This fact was not acceptable, for the reason that according to the affidavit submitted by the respondent, he has been able to prove that Smt. Simpal Singh is employed in CMI, Hospital and the rent deed, which has been filed on record, is a fraudulent piece of document to mislead the Court. Hence it cannot be accepted.

13. On the aforesaid backdrop and taking into consideration the affidavit laid by the respondent to the effect that the appellant is having an independent source of earning of about Rs.40,000/- to Rs.45,000/- from the beauty parlor operated by her, she will not be entitled for any benefit under Section 24 of the Act. The condition for grant of Section 24 is that the Court has to speculate upon the germane conditions that either wife or husband has “no independent income sufficient for her to support the necessary expenses of maintaining herself,” and has no income of her own. Since the ingredients of Section 25 were not available to the appellant because she has tried to divert the issue of her engagement in the beauty parlor by wrongfully misleading the Court by stating the same is being owned by Smt. Simpal Singh, without denying the property of the rent deed and the photographs showing that she was already engaged, she was not entitled for grant of Section 24 in pendente lite expenses during the pendency of the proceedings under Section 13 before the Family Court. Hence this Court finds no anomaly in the inference drawn by the Court below while rejecting the application submitted by the appellant for the grant of maintenance pendente lite under Section 24 of the Hindu Marriage Act. Thus the appeal deserves to be dismissed and the application paper no.16A filed by the appellant, under Section 24 of the Hindu Marriage Act, which has been rejected by the Court below, is hereby affirmed.

13. On account of the fact that the principal proceedings of Original Suit No.932 of 2014, were instituted on 01.12.2014 and almost two and half years have lapsed, in all fitness of things and keeping in view the provisions contained under Section 21(B), the proceedings of suit is directed to be expedited and a direction is issued to the Family Court, to decide the principal suit under Section 13, as expeditiously as possible, but not later than six months from the date of the production of the certified copy of the order. Registry is directed to send the copy of the order to the Court below.

(Sharad Kumar Sharma, J.) (Rajiv Sharma, J.)
22.06.2017

Leave a Comment

Your email address will not be published. Required fields are marked *