Smt Mamta Rai vs Yogendra Kumar Rai on 22 June, 2017

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
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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
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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
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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.

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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.

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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
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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
A.kaur

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