Smt Rashmi vs Anurag Malkoti on 13 July, 2017

IN THE HIGH COURT OF UTTARAKHAND
AT NAINITAL

Appeal from order No. 454 of 2016
Smt. Rashmi W/o Anurag Malkoti ……Appellant

Versus
Shri Anurag Malkoti S/o Om Prakash …… Respondent.

Present:
Mr. Karan Anand, Advocate for the appellant.
Mr. R.K.S. Verma, Advocate for the respondent.

Reserved Judgment
JUDGMENT

Coram: Hon’ble Rajiv Sharma, J.

Hon’ble Sharad Kumar Sharma, J.

Dated: 13th July, 2017
Per Hon’ble Sharad Kumar Sharma, J.

The Legislature in its wisdom, while incorporating
Section 24 of the Hindu Marriage Act (hereinafter referred to
as ‘Act”), provides for granting subsistence for survival to
either of the party to the marriage to avail maintenance and
expenses of the proceedings pendente lite. The basic
ingredients which are required to be considered by the Court
for the grant of pendente lite maintenance are :

1. They are spouse.

2. They have no independent income

3. The income is insufficient to maintain herself or
himself.

Section 24 of the Act could be invoked on an
application to be filed either by wife or husband before
competent court seeking direction to the either party to pay
to the applicant a monthly maintenance from his or her own
income, which the Court feels to be reasonable looking to the
respective living conditions of either of spouse.

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Heard Mr. Karan Anand, learned counsel for the
appellant and Mr. R.K.S. Verma, learned counsel for the
respondent.

This Court on earlier occasion, based on the statement
of counsel, expressing their willingness to make an attempt
for mediation. The parties were called upon to appear before
the Court, in person, and, thus, the Court by the order dated
12th April, 2017, directed the parties to the present Appeal
from Order to appear before this Court.

The case has been listed today. Both the parties
alongwith their counsel are present. But looking to the
allegations and counter allegations amongst one another and
the attitude as reflected by the parties, who are present in
person, apparently, shows that there was no possibility of
cutting short the controversy inter se between them by
settling the dispute amicably so that they can either live or
separate permanently.

Later, we also felt that since the Appeal from Order has
questioned the adjudication which is to made by the Court is
to an application under Section 24 of the Act, for the grant of
pendente lite maintenance, which partakes shape of an
interlocutory order. That means to say that the principle
proceedings under Section 13 of the Act for dissolution of
marriage is yet to be decided by the Court below and it has
been informed that day after tomorrow date is fixed before
the Court below. But since the suit before the Court below is
at a very initial stage, we, with the consent of the parties
proceed to decide the present Appeal from Order only,
without effecting the proceedings of the Regular Suit.

The parties to the instant appeal, where the wife is
questioning the order dated 4th August, 2016, is the order by
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which the appellant’s Application Paper No. 14-A, filed
under Section 24 of the Act, in Original Suit No. 317 of 2013,
Anurag Malakoti Vs. Rashmi has been rejected. This Court
too initially at the admission stage had not granted any
interim order, by way of any direction for the payment of
amount as pendente lite maintenance.

The facts of the case are that plaintiff / respondent,
admittedly, are said to have solemnized the marriage with
the appellant according to the Hindu rights and rituals on
13th April, 2008. At the time of marriage, according to the
appellant, the husband who is MBA was working in Afia
International Company in Dubai as Senior Regional
Manager, Sales. According to the appellant, she alleges that
he has an earning of Rs. 5 lacs p.m. Wife’s case is that at the
time of the marriage, he was working with Syntel Company,
Pune and, thereafter, he switched over the job at Dubai
According to the wife, it is because of the shifting of the
husband to Dubai, they seldom used to keep in touch and
communicate with one another. It is due to this reason,
misunderstanding increased amongst them. On account of
various grounds of cruelty and desertion, Section 13 was
filed. The ground of Section 13 is not being dealt or touched
in the present judgment as it will have an effect on the
proceedings under Section 13 of the Act pending before the
Court below., which is yet to be decided
According to the husband, in his objection to paper No.
14-Ga, which was numbered as paper No. 16-A, he
submitted that he is not receiving Rs. 5 lacs salary p.m.
rather he is receiving 16,960 Dirham, which is equivalent to
Rs. 2,71,360 of the Indian Currency only, which after
deduction being made, the cash, in hand, which comes to
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him is Rs.2,36,512/-, out of which, he has to make various
expenditure as rent, tax, telephone bills, insurance,
expenditure of gas and water, etc. Whereas, he stated that
his wife, i.e. appellant is working as a P.O. in Bank of Baroda
and she was getting a salary of Rs. 22,000/- p.m. at the time
of induction into the services, now the salary has increased a
lot, hence, she is not entitled for any maintenance as she has
sufficient resources to sustain herself.

The learned Family Court Dehradun on 4th August,
2016, by the impugned order rejected the application. The
Court took into consideration the fact that the wife has got
her own earning and also because of the fact that taking into
consideration the pay slips submitted by the respondent and
also because of the fact that the respondent had purchased a
land valuing Rs. 9,03,100/- on 31st April, 2010, and has gifted
the same to the appellant. Subsequently, the said property
was transacted by appellant. However, the learned Court
below, taking into consideration the fact that the appellant’s
financial condition is not so precarious that she cannot
sustain herself, in the light of the provisions contained under
Section 24 of the Act, rejected the application.

The Hon’ble Apex Court in the case of Gurmail Singh
Vs. Bhuchari reported in AIR 1980 PH 120 has held in
paragraph 5 as under :-

“5. The learned counsel for the petitioner is
under the wrong impression that the husband is
required to pay maintenance pendente lite etc only it
he has independent income of his own: This is not
warranted by the language of Section 24 The words
independent income’ therein are applicable at the time
when the application for claiming maintenance is
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made and not subsequently at the time when the same
is to be granted. Thus, it will be a question of fact in
each case to be decided by the Court as to the income
of the husband or the wife against whom the
maintenance is going to be awarded. It is nowhere
provided that if a person is working with his father’s or
any other relation’s farm or any other kind of
establishment, he is. not to pay the maintenance
pendente lite on the ground that he has no
independent income of his own. Even while a person is
working with his own family members and relations, it
cannot be said that he is having no income as such
within the meaning of S. 24 of the Act.”

Looking to the facts that the appellant is already
working and she is functioning as P.O. in the Bank of
Baroda, her claim for pendente lite maintenance will not
come under Section 24 of the Act. Do not fall within the
ambit of Section 24 of the Act itself. Hence, she is not
entitled for any pendente lite maintenance. As the institution
of U/S 24 application is to tide away financial crisis during
pendency of proceedings under Hindu Marriage Act.

The counsel for the appellant placed reliance on the
judgment reported in 2010 (12) SCC 242, Neeta Prakash Jain
Vs. Rakesh Jaithmal Jain, wherein, the Hon’ble Apex Court
has held that while considering the interim maintenance,
when the Court exercising its discretion, it must be guided
by the criteria contemplated under Section 24 of the Act, the
avenue of resources to either of the parties for survival, has
to be considered and should not act for generating income.
The Hon’ble Apex Court held out social status has also to be
one of the criteria which is to be taken into consideration,
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which relates to the background from which both the parties
have hailed, their economic dependence but in the instant
case, the aforesaid ratio would not be applicable because it is
not a case which was developed and argued and
substantiated by the appellant before the Family Court,
Dehradun. Besides this, both are earning.

Owing to the fact that since wife is well placed and is
working as PO with Bank of Baroda and has got sufficient
resources to maintain herself, this Court feels that the
impugned judgment passed by the Family Court rejecting
the application under Section 24 of the Act do not suffer
from any vices, hence, the same is rejected. Appeal from
Order is dismissed confirming the impugned order.

Since the Legislature under Section 21 (B) of the Hindu
Marriage Act has provided that the proceedings before the
Family Court to be held within stipulated time frame, this
Court request the Family Court, Dehradun to decide the
Original Suit No. 317 of 20013, Anurag Malkoti Vs. Rashmi
within a stipulated time frame without granting
unnecessarily adjournment and under no set of circumstance
not beyond the period of four months from the date of order,
as case is pending since 2013.

Subject to the above observation, the appeal fails and is
dismissed.

(Sharad Kumar Sharma, J.) (Rajiv Sharma, J.)
13.07.2017 13.07.2017
Shiv
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