WP No. 3208/2017
(Rajeev Agrawal Vs Seema Agrawal)
17/07/2017
Shri S.M. Ali, learned counsel for the petitioner.
Shri Suresh Agrawal, learned counsel for the
respondent.
With the consent of learned counsel for the parties,
the matter is heard finally.
In this petition under Article 227 of Constitution of
India, the petitioner has assailed the order dated
22/03/2017 passed in case No. 387-A/2016 (HMA) by
Additional Principal Judge, Family Court, Gwalior, whereby,
the application under section 24 of Hindu Marriage Act
(herein after referred to as an ‘Act’) has been partly
allowed to the extent of payment of fees of two children in
the proportion of 50-50 percent to be paid by husband and
wife ( i.e. petitioner and respondent herein).
Brief facts leading to filing of this case are that the
petitioner married with the respondent on 10/06/1998 as
per Hindu rites and rituals without asking for dowry, etc.
From their wedlock, a girl child was born on 24/05/1999
and a boy child was born on 27/12/2002. Both the children
are residing with the respondent. The respondent moved
an application under section 24 of Act seeking monthly
maintenance of Rs. 25,000/- per month for herself and Rs.
10,000/- towards litigation expenses, etc. The petitioner
filed reply to the application under section 24 of the Act
contending therein that the respondent is not allowing
him live with her for the last two years and is not allowing
to meet the children. The petitioner is living in a rented
WP No. 3208/2017
(Rajeev Agrawal Vs Seema Agrawal)
house. He made efforts on number of occasion to live with
the respondent, but to no avail. As a consequence, the
petitioner was left with no option, but to file an application
under section 9 of the Act.
The learned court below prima facie held that the
petitioner is earning Rs. 70,000/- per month. The
respondent is also working with DHFL and earning Rs.
40,000/- per month. It was further held that both the
parties are earning members and are capable of
maintaining themselves and as such the respondent is not
entitled for maintenance pendente lite, but so far as two
children are concerned, it was directed that both the
parties shall bear the school fees of the children in the
ratio of 50-50 percent each. Being aggrieved by the
impugned order dated 22/03/2017, the petitioner has
approached this Court by filing the present petition.
Learned counsel for the petitioner contends that the
court below has fallen in error by not considering the fact
that the petitioner is a Central Government employee and
working in the A.G. Office on the post of Accountant. He is
entitled to pay only Rs. 1,500/- per month towards
expenses for education of the children as his salary is not
Rs. 70,000/- per month and he is not in a position to pay
50% fees of the children. The impugned order deserves to
be set aside.
On the other hand, learned counsel for the
respondent submits that the petitioner and the respondent
had been paying the fees of both the children till they were
WP No. 3208/2017
(Rajeev Agrawal Vs Seema Agrawal)
living together. The children are studying in the same
school right from beginning as such it cannot be said that
such huge amount of fees cannot be paid by both the
parents. The respondent is ready to pay 50% of the fees
towards children education.
Heard learned counsel for the parties
Learned counsel for the respondent in support of his
contention has stated that court has power to grant
interim maintenance not only to the wife but also to the
children under section 26 of the Act and that any interim
maintenance to the wife alone is meaningless, if it does
not provide maintenance for the children. Further, in an
application filed under section 24 of the Act, the Court can
always invoke section 26 of the Act and grant maintenance
to the children of the spouse in case where it is found
necessary.
In the instant case, the learned court below has
denied claim of maintenance to the respondent / wife, but
looking to the facts and circumstances of the case and
considering the fact that both the husband and wife had
been paying maintenance for education of both the
children since beginning, it would be appropriate to direct
the husband and wife to pay 50-50 % each as
maintenance towards education of both the children. No
illegality has been committed by the learned court below
while passing the order impugned. It is prime duty of the
parents to provide education to their children.
Accordingly, the impugned order dated 22/03/2017
WP No. 3208/2017
(Rajeev Agrawal Vs Seema Agrawal)
(Annexure P/1) passed by the court below does not call for
any interference of this Court under Article 227 of the
Constitution of India. The instant petition being devoid of
merit and substance deserves to be and is hereby
dismissed. No order as to costs.
(S.A DHARMADHIKARI)
JUDGE
Durgekar*
