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Smt Pooja Saxena vs Vivek Mathur on 29 November, 2017

HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT
JAIPUR
S.B. Civil Writ Petition No. 13748 / 2017
Smt. Pooja Saxena D/o Late Shri Vijay Prakash Saxsena, by Caste
Saxsena (Kayasth), Aged About 42 Years, C/o Dr Madhubala
Saxsena, 307, Siddharth Apartment, Near Civil Court Compound
Agra (uttar Pradesh) With Her Matrimonial Residence At Flat No.
D-1102, Ajmera Green Acres, 20/1, Kalena Agrhara Bannerghatta,
Banglore.

—-Petitioner
Versus
Vivek Mathur S/o Shri Umesh Chand Mathur, by Caste Kayasth,
Aged About 42 Years, Permanent Resident of B-8, Parivahan Marg,
Chomu House, Jaipur Old Residence Flat No. D-1102, Ajmera
Green Acres, 20/1, Kalena Agrhara Bannerghatta, Banglore
Presently Working As Practice Director HCL Technologies, Plot No.
3, Surya Sapphire, Electronic City, Phase 1, Bangalore (karnataka)
560100

—-Respondent

__
For Petitioner(s) : Mr. Sunil Samdaria
For Respondent(s) : Mr. P.C. Bhandari
__
HON’BLE MR. JUSTICE SANJEEV PRAKASH SHARMA
Order

Order Reserved on 18/11/2017

Order Pronounced on: 29/11/2017

The writ petition comes up against the order passed by

the Family Court under Section 24 of the Hindu Marriage Act

granting maintenance to the petitioner wife of Rs.10,000/- per

month vide order dated 4.1.2016.

The case of the petitioner is that she moved an

application under Section 24 of the Hindu Marriage Act, 1955, in

the petition filed by the husband for seeking divorce on 30.9.2014

claiming maintenance pendente lite. The amount of Rs.3 Lakhs

per month was demanded, as it is her case that the respondent is

drawing more than Rs. 3 Lakhs per month. It is her submission

that she is living alone with her son aged seven years, who is

suffering from congenital heart disease. The amount granted by

the Family Court is to meager and has been ordered to be paid

only from the date of order and not from the date of application.

On both the counts, the order deserves to be modified.

It is submitted that the husband of the petitioner

ousted her from her matrimonial home where she was living even

during the pendency of the divorce petition till 9.12.2014 and

since then, she is living with her mother, who is getting family

pension. She admits that she is a qualified doctor in Preventive

Medicine but she is not earning and not doing practice.

Counsel for the petitioner has relied on law laid down

by the Apex Court in Jasbir Kaur Sehgal (Smt) vs. District

Judge, Dehradun Ors. (1997) 7 SCC 7, Neeta Rakesh Jain

vs. Rakesh Jeetmal Jain (2010) 12 SCC 242, Jaiminiben

Hirenbhai Vyas Anr. vs. Hirenbhai Rameshchandra Vyas

(2015) 2 SCC 385, wherein, Supreme Court has laid down that

the amount should be paid from the date of application and the

amount should be paid from the salary of the husband and atleast

25% of the salary being drawn by the husband should be released

in favour of wife during the pendency of the litigation before the

concerned court.

Per contra, counsel for the respondents submits that

the amount mentioned by the petitioner as salary being drawn by

the respondent is shown as enhanced and actually the respondent

was drawing only Rs.78,000/- per month but since 2016, on

account of this matrimonial dispute, respondent husband is not

doing any work. He states that he is ready to pay Rs.10,000/- per

month to his wife and actually her wife was living separately from

him since 2010 and he was taking care and paying for all her dues

till he filed divorce petition before the Family Court on account of

cruelty and desertion. It is his case that the petitioner wife is a

doctor and she is capable of earning atleast Rs.1 Lakh per month.

It is further submitted that an order was passed under Section

125 Cr.P.C. by court at Agra as maintenance of an amount of

Rs.35,000/- per month, which has been challenged by him before

High Court at Allahabad and as per directions of the Allahabad

High Court, he has paid an interim amount of Rs.1,50,000/- to the

petitioner. It is also stated that under the Domestic Violence Act,

2005, an amount of Rs.15,000/- has been assessed but the same

was challenged and has been set aside now. In support of his

contention, the counsel for the respondents has relied upon the

judgments in the cases of Rupali Gupta vs. Rajat Gupta,

MAT.APP.(F.C.) 143/2014, Anusha Tripathi vs. Tejasvee

Shashtri 2013 (41) RCR (Civil) 193.

This Court vide order dated 12.10.2017 had noted that

as on today, no maintenance is being paid to the petitioner or her

child.

Taking into consideration the bank account statements,

which has been placed on record by the petitioner as Annexure-2,
I find that in the year 2014, the husband of the petitioner was

drawing handsome salary of more than Rs.2 Lakhs per monmth.

Similarly, in the copy of Income Tax Return, filed by petitioner

along with her rejoinder, respondent has shown his income as

Rs.10,80,000/- between April, 2001 and June, 2011, which comes

to around more than Rs.3 Lakhs per month.

While it is true that the petitioner is also capable of

earning, the responsibility of husband towards his wife and child

cannot be side lined. The judgment cited by the respondents of

various high courts have been considered by me and the view

taken by the Supreme Court in the judgments (supra) reveal that

Supreme Court has principally opined that husband is required to

be maintained his wife and son during the pendency of the

proceedings before the Family Court and even otherwise unless

there is an allegation which puts such an embargo as required

under the law. The ground on which husband seeks divorce, i.e.

cruelty and desertion, are yet to be proved.

In Manish Jain vs. Akanksha Jain, 2017 AIR (SC)

1640, 2017 (4) SCALE 152, it was held as under:-

“14. Section 24 of the HM Act empowers the Court in any
proceeding under the Act, if it appears to the Court that
either the wife or the husband, as the case may be, has no
independent income sufficient for her to his support and
the necessary expenses of the proceeding, it may, on the
application of any one of them order the other party to pay
to the petitioner the expenses of the proceeding and
monthly maintenance as may seem to be reasonable
during the proceeding, having regard to also the income of
both the applicant and the respondent. Heading of Section
24 of the Act is “Maintenance pendente lite and expenses
of proceedings”. The Section, however, does not use the
word “maintenance”; but the word “support” can be
interpreted to mean as Section 24 is intended to provide
for maintenance pendente lite.

15. An order for maintenance pendente lite or for costs of
proceedings is conditional on the circumstance that the
wife or husband who makes a claim for the same has no
independent income sufficient for her or his support or to
meet the necessary expenses of the proceeding. It is no
answer to a claim of maintenance that the wife is educated
and could support herself. Likewise, the financial position
of the wife’s parents is also immaterial. The Court must
take into consideration the status of the parties and the
capacity of the spouse to pay maintenance and whether
the applicant has any independent income sufficient for
her or his support. Maintenance is always dependent upon
factual situation; the Court should, therefore, mould the
claim for maintenance determining the quantum based on
various factors brought before the Court.”

Keeping in view the aforesaid, this Court is of the view

that the petitioner is entitled for maintenance pendente lite and

for the said purpose, this Court taking into consideration the

income being drawn by the respondent husband and the monthly

needs of wife and child, assess monthly maintenance of

Rs.25,000/- to petitioner wife and Rs.10,000/- for her child, taking

into consideration the present price index and cost of living for an

urban family. The amount of arrears shall be released to the wife

from the date she filed writ petition i.e. 6.4.2016. While the

amount as fixed by the Family Court of Rs.10,000/- per month

shall be paid from the date of application moved before the Family

Court i.e. 30.9.2014 up to date of filing of the present writ

petition.

The arrears shall be paid by the husband in equal six

monthly installments of the total amount. While immediate
amount from today shall be paid from this month onwards.

With these directions, the present petition is disposed

of.

(SANJEEV PRAKASH SHARMA)J.

Mak/-

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