Sh. Anil Kumar Jamwal vs Smt. Reena Devi on 29 November, 2017

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
CMPMO No. 208 of 2017
Decided on: 29.11.2017

Sh. Anil Kumar Jamwal …Petitioner

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Versus

Smt. Reena Devi …Respondent

Coram

The Hon’ble Mr.Justice Tarlok Singh Chauhan, Judge.
Whether approved for reporting? No.

For the petitioner: Mr. L.S. Mehta, Advocate.

For the respondent:

to Mr. Adarsh Kumar Vashisht, Advocate.

Justice Tarlok Singh Chauhan, Judge (Oral)

This petition under Article 227 of the Constitution, at the

instance of the petitioner/husband, is directed against the order of

maintenance dated 28.02.2017, passed by the learned District Judge,

Shimla, in proceedings under Section 24 of the Hindu Marriage Act (for

short the ‘Act’).

2. It is not in dispute that the parties are husband and wife

even though currently they are estranged. The petitioner has filed

petition under Section 13 of Act seeking dissolution of marriage on

various grounds including the ground of cruelty which are pending

adjudication and it was in these proceedings that the respondent filed

an petition under Section 24 of the Act for grant of maintenance

pendent lite and expenses of proceedings.

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3. The application so filed was allowed by the learned trial

Court vide order dated 28.02.2017 and the petitioner was directed to

pay a sum of ` 8,000/- per month as maintenance pendent lite from the

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date of application and in addition thereto he was also directed to pay

a sum of Rs.10,000/- to the respondent towards litigation expenses.

4. The petitioner has assailed the order of maintenance

mainly on the ground that he is earning only ` 10,000/- per month,

therefore, a sum of ` 8,000/- towards maintenance could not have

been awarded in favour of the respondent.

5. The Hindu Marriage Act is a piece of social welfare

legislation regulating the marital relations of Hindus consistently with

their customary law i.e. Hindu Law. The object behind Section 24 of the

Act is to provide financial assistance to the indigent spouse to maintain

herself or himself during the pendency of the proceedings and also to

have sufficient funds to carry on the litigation so that the spouse does

not unduly suffer in the conduct of the case for want of funds.

6. Having made a note of the object of Section 24 of the Act,

it would be noticed that this is rather an unusual case calling for an

unusual solution. The case is unique because the respondent, who is the

wife of the petitioner and from whom the petitioner seeks divorce is

residing with his father at Bilaspur alongwith their two children and

taking care of the entire family of the petitioner, whereas the petitioner

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is residing separately from both his father and also his wife at Shimla

and does not dispute the aforesaid facts.

7. Despite repeated endeavours made by this Court,

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reconciliation could not take place between the parties and, therefore,

the Court is left with no other option but to decide the case on merit.

I have learned counsel for the parties and have gone

through the material placed on record.

8. It has specifically come on record in the salary certificate

of the petitioner issued by his employer, that he has been working as

Media Coordinator and drawing a salary of ` 10,000/- per month and

the said certificate has been duly proved on record by the authorized

signatory of the employer of the petitioner by filing his personal affidavit

to this effect. There is no evidence to the contrary available on record

and, therefore, the question arises as to on what basis did the learned

District Judge award the aforesaid amount(s).

9. The answer to this question is contained in operative part of

the impugned order which reads thus:-

“The applicant is admittedly having no source of income whereas the
non-applicant is proved to be working with a media house at Shimla,
as this fact has not been disputed, however, the non-
applicant/husband has disputed the income as ` 25,000/- per month,
but admitted that he is getting Rs.10,000/- as income. However, he has
not placed on record his salary slip or any other document to show
that he is getting only ` 10,000/-. In such situation this court is of the
view that the non-applicant/husband has not come forward about his

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actual income, resultantly, this court has to adopt some guess work to
assess the monthly income of the non-applicant/husband. The non-
applicant might be earning ` 18,000/- per month. The non-
applicant/husband has not pleaded that he has any other liability. In
such situation, it would be just and appropriate for this court to grant a

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sum of ` 8,000/- per month as maintenance pendent lite to the
applicant from the date of application. In addition to this, he has also
been burdened to pay a sum of ` 10,000/- to the applicant as litigation

expenses. The application under Section 24 of the Hindu Marriage Act
is thus allowed. Be tagged with the main case file after due
registration.”

10. Now, the moot question arises as to what rate of

maintenance is the respondent entitled to, particularly, when it is

proved on record that total income of the petitioner is only ` 10,000/-

per month. It is now settled law that alimony normally varies between

1/3rd and 1/5th of the income of the husband, however, taking into

consideration the fact that the respondent alongwith her two children

residing in the house alongwith the father of the petitioner, nonetheless

1/3rd of the income awarding maintenance at the rate of 1/3rd would

be inequitable and unjust. Therefore, taking into consideration all the

cumulative facts and circumstances, I am of the considered opinion

that the respondent is entitled to maintenance pendent lite of ` 4,000/-

per month.

11. The aforesaid observations obviously cannot withstand

judicial scrutiny in view of what has been observed above. Therefore,

this Court is left with no option but to set aside the said order, in so far

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as, it awards ` 8,000/- per month as maintenance pendent lite, as it can

conveniently be held that such findings are perverse and nothing short

of surmises and conjectures and not supported by any material

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whatsoever on the record. However, as regards to the payment of

litigation expenses of ` 10,000/-, I see no reason to interfere with the

same.

12. Accordingly, the order granting maintenance by the

learned Court below is modified only to the extent that instead of

`8,000/-, the petitioner shall pay a sum of ` 4,000/- per month as

maintenance pendent lite to the respondent from the date of

application i.e. 5.11.2015.

13. As undertaken by the petitioner as per separate

undertaking given in the Court today, he shall pay 50% arrears of

maintenance with effect from the date of application i.e. 5.11.2015 at

the rate of ` 4,000/- per month within a period of two months and the

remaining 50% arrears within next two months. In addition thereto, he

shall regularly pay the maintenance as awarded by this Court today by

depositing the same in the bank account of the respondent.

14. It is made clear that, in case, there is any violation of the

undertaking so furnished to this Court today, then the petitioner in

addition to any other action that may be initiated/taken against him,

shall be liable to be prosecuted and punished under the Contempt of

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Courts Act. The undertaking furnished by the petitioner shall be read as

a part and parcel of this order.

15. The petition is partly allowed in the aforesaid terms, leaving

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the parties to bear their own costs.

(Tarlok Singh Chauhan),

Judge.

November 29, 2017
sanjeev

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