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Judgments of Supreme Court of India and High Courts

Krishna Kumar And Others vs Navneet Alias Seema And Others on 21 February, 2018

CRR No.1253 of 2017 -1-
CRR No.2471 of 2017

IN THE HIGH COURT FOR THE STATES OF PUNJAB AND
HARYANA AT CHANDIGARH

(1)
Crl. Revision No.1253 of 2017(OM)
Date of Decision: February 21, 2018

Krishan Kumar and others

…Petitioners

Versus

Navneet Alias Seema and others

…Respondents

(2)
Crl. Revision No.2471 of 2017(OM)

Navneet @ Seema

…Petitioner

Versus

Sandeep Kumar and others

…Respondents

CORAM:- MS. JUSTICE JAISHREE THAKUR

Present:- Mr. Akshay Jindal, Advocate
for the petitioners in CRR No.1253 of 2017 and
for the respondents in CRR No.2471 of 2017.

Mr. Rahul Deswal, Advocate
for the petitioner in CRR No.2471 of 2017 and
for the respondents in CRR No.1253 of 2017.

********

JAISHREE THAKUR, J.

The above captioned two criminal revisions are being disposed

of by a common order since parties to the said litigation are common and

both challenge the same order dated 08.03.2017 in proceedings arising out

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of a complaint filed under the Protection of Women from Domestic

Violence Act (for short ‘the DV Act’) .

2. In order to understand the lis between the parties, a few brief

facts are being taken from CRR No.1253 of 2017, which has been preferred

by petitioner No.1-Krishan Kumar (father-in-law), petitioner No.2-Chameli

(mother-in-law) and petitioner No.3-Sandeep Kumar (husband) against

complainant-respondent No.1 Navneet alias Seema and others. The parties

would be referred to in this order, as has been referred in CRR No.1253 of

2017.

3. Complainant/respondent No.1-wife herein solemnized a

marriage on 10.12.2006 with petitioner No.3 herein, out of which wedlock a

female child was born on 15.09.2007. She was turned out of her

matrimonial home, on account of her husband and his parents not being

satisfied with the dowry given. Eventually, a petition under Section 12 of

the DV Act along with reliefs claimed under Sections 17, 18, 19, 20, 22 and

23 of the DV Act with the specific reliefs of maintenance and right to reside

in the alleged shared household i.e. House No.568, Gali No.11, Gandhi

Nagar, Karnal was preferred. The trial court dismissed the relief of

residence in the shared household, on the ground that the said house

belonged exclusively to the father-in-law and granted maintenance to the

tune of Rs.4000/- per month from the date of the order. The said order was

an ex parte order, which was challenged in appeal by the complainant-wife

before the Addl. Sessions Judge, Karnal, who allowed the appeal and

modified the order of the trial court, to the extent of allowing residence to

complainant/respondent no.1-wife in the shared household i.e. House

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No.568, Gali No.11, Gandhi Nagar, Karnal and also enhanced the

maintenance to the tune of Rs.6000/- per month, while also allowing the

maintenance to be paid paid from date of filing of the complaint, instead of

maintaining the order passed by the trial court, granting maintenance from

the date of the order. In the said impugned order a restraining order was

issued against petitioner no 1 from alienating the house in question.

Aggrieved against the said order, CRR No.1253 of 2017 titled as “Krishan

Kumar and others vs. Navneet Alias Seema and others” has been preferred

by father-in-law, mother-in-law and husband of the complainant-wife

whereas, CRR No.2471 of 2017 titled as “Navneet @ Seema vs. Sandeep

Kumar and others” has been preferred by the complainant-wife. In CRR

No.1253 of 2017, the petitioners are seeking to challenge the judgment

passed in appeal, allowing right of residence in the house belonging solely

to father-in-law of the complainant-wife and the restraining order, whereas

in CRR No.2471 of 2017, the petitioner i.e. complainant-wife challenges

the said judgment, on the ground that the maintenance so awarded is

inadequate, since she has the responsibility of bringing up a minor child and

that income of his husband is around Rs.40,000/- and that he has given

incentive of Rs.12 lakhs for giving a good business to the bank.

4. Mr. Akshay Jindal, learned counsel appearing on behalf of the

petitioners (in CRR No.1253 of 2017) contend the impugned judgment

dated 08.03.2017 passed by the Addl. Sessions Judge, Karnal in appeal,

allowing right of residence is not sustainable, since the house in question

belongs solely to father-in-law of the complainant-wife i.e. petitioner No.1-

Krishan Kumar, which fact cannot be ignored. It is argued that the

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Appellate Court has ignored the dictum as laid down by the Supreme Court

in S.R. Batra and another vs. Taruna Batra (Smt.), (2007) 3 Supreme

Court Cases 169, wherein it has been held that a house belonging to the

mother-in-law cannot by any stretch of imagination be considered as a

‘shared household’. Moreover, petitioner No.3 (husband) is not residing in

the said house and in fact, residing in Sarojini Nagar, near ITI Chowk,

District Yamuna Nagar. It is also submitted that earlier a compromise had

been arrived at between the parties i.e. petitioner No.3-husband and

complainant-wife and a separate accommodation was taken in Hakikat

Nagar, Karnal where, both the parties resided together for a period of one

and half month. It is during the period of stay at Hakikat Nagar, Karnal that

various litigations were instituted against the petitioners and on account of

this enmity, it would be impossible for the complainant-wife to reside in the

house belonging to his father, as allowed by the Appellate Court.

Moreover, the order allowing maintenance from the date of the application

is not sustainable, as no cogent reasons are forthcoming as to why, the

enhanced maintenance should be paid from the date of the application,

instead of from the date of the order. It is also contended that the Appellate

court has also passed in junction, restricting petitioner No.1 (father-in-law)

from alienating the house without the consent of the complainant-wife,

which is also not sustainable.

5. Per contra, Mr. Rahul Deswal, learned counsel appearing on

behalf of the complainant-wife argues that the relief of maintenance is

wholly inadequate, since petitioner No.2-husband is working as Assistant

Manager in HDFC Bank, Yamuna Nagar and is earning a sum of

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Rs.40,000/- per month and the complainant-wife has the responsibility of

bringing up a minor daughter, whose entire future is ahead of her. Learned

counsel also submits that our own High Court in Subhash and another vs.

Shivani, 2016(3) RCR (Criminal) 959, had allowed the complainant therein

a right to reside in the shared household, belonging to her father-in-law,

since this was the house that she entered into after her marriage and

continued to reside there till the dispute arose between the parties. It is

argued that the divorce petition filed by petitioner No.3-husband is pending,

in which petitioner No.3-husband has been directed to pay a sum of

Rs.9000/- as maintenance to the complainant-wife under Section 24 of

Hindu Marriage Act, from the date of application, which shall include the

amount, which the complainant-wife is getting under the DV Act and the

said amount would subsist only during the pendency of the petition under

Section 13 of Hindu Marriage Act. It is also brought to the notice of the

court that petitioner No.3-husband is not residing in Yamuna Nagar, as he

was served at the residence described as House No.568, Gali No.11, Gandhi

Nagar, Karnal in the complaint case that was filed and even in the instant

criminal revision. It is further argued that the complainant-wife resided in

the house in a portion shown as ECDF in the site plan Ex.P1 at the time of

marriage and thereafter, two rooms, latrine and bathroom were constructed

in the portion shown as ABEF in the site plan Ex.P1, with the money

contributed by her parents, by selling their buffaloes for a sum of

Rs.40,000/-, which was given towards utilization in the construction, and

therefore, she has a right to reside in the said house. It is also argued that the

complainant-wife has successfully been able to establish that she is a victim

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of domestic violence and entitled to claim reliefs, as provided under the DV

Act.

6. I have heard learned counsel for the parties and with their

assistance, have perused the pleadings of the case.

7. Admittedly, the complainant-wife married with petitioner No.3-

Sandeep Kumar and out of which wedlock, a minor child namely Payal was

born. The complainant-wife was able to prove domestic violence through

oral as well as documentary evidence i.e. her MLR in proceedings under the

DV Act, which resulted in the petition being allowed by the Judicial

Magistrate Ist Class at Karnal by an order dated 20.05.2015. Since the

complainant-wife was not able to prove anything regarding monthly salary

of her husband (petitioner No.3), an amount of Rs.4000/- per month was

allowed, taking him to be a qualified labourer, capable of earning

Rs.10,000/- to Rs.12,000/- per month. As far as claim for right of residence

in the shared household was concerned, the same was disallowed, since

there was nothing on the record regarding the ownership of the house. The

Appellate Court allowed the appeal by the impugned judgment by relying

upon Subhash and another vs. Shivani (supra), while also enhancing the

maintenance to the tune of Rs.6000/- per month from the date of the

application. Besides this, she was also allowed to live in the shared

household and the petitioners herein were directed not to alienate the house

in question, as shown in the site plan.

8. The primary questions that arises for consideration would be;

(i) Whether the complainant-wife is entitled to right of

residence in the house that does not belong to her husband?

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(ii) Whether the complainant-wife is entitled to enhancement

of the maintenance amount?

9. The Protection of Women from Domestic Violence Act came to

be enacted in the year 2005 when a need was felt that adequate protections

were not being given to women, despite special provisions as provided

under Section 498-A of Indian Penal Code. The legislature was of the

opinion that there is abuse in a domestic relationship, which might be on

account of dowry or otherwise and women were to be afforded protection in

that relationship. The term ‘abuse’ was given a vide connotation, which

could be sexual abuse, verbal and emotional abuse and economic abuse,

besides the physical abuse. Section 2(s) of the DV Act defines the term

“shared household” as under;-

” ‘shared household’ means a household where the
person aggrieved lives or at any stage has lived in a
domestic relationship either singly or along with the
respondent and includes such a household whether owned
or tenanted either jointly by the aggrieved person and the
respondent, or owned or tenanted by either of them in
respect of which either the aggrieved person or the
respondent or both jointly or singly have any right, title,
interest or equity and includes such a household which
may belong to the joint family of which the respondent is
a member, irrespective of whether the respondent or the
aggrieved person has any right, title or interest in the
shared household.”

10. Section 2 (f) of the DV Act, defines the terms “domestic
relationship” as under;

“domestic relationship” means a relationship between
two persons who live or have, at any point of time, lived

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together in a shared household, when they are related by
consanguinity, marriage, or through a relationship in the
nature of marriage, adoption or are family members
living together as a joint family”

11. Section 17 of the DV Act provides for right to reside in a

shared household, which reads as under;-

“17. Right to reside in a shared household-

1. Notwithstanding anything contained in any other
law for the time being in force, every woman in a
domestic relationship shall have the right to reside in
the shared household, whether or not she has any right,
title or beneficial interest in the same.

2. The aggrieved person shall not be evicted or
excluded from the shared household or any part of it by
the respondent save in accordance with the procedure
established by law.”

12. Further, Section 19 of the DV Act states as under;

“19. Residence orders.–

1. While disposing of an application under sub-
section (1) of section 12, the Magistrate may, on being
satisfied that domestic violence has taken place, pass a
residence order–

a. restraining the respondent from dispossessing or
in any other manner disturbing the possession of the
aggrieved person from the shared household, whether or
not the respondent has a legal or equitable interest in
the shared household;

b. directing the respondent to remove himself from
the shared household;

c. restraining the respondent or any of his relatives
from entering any portion of the shared household in

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which the aggrieved person resides;

d. restraining the respondent from alienating or
disposing of the shared household or encumbering the
same;

e. restraining the respondent from renouncing his
rights in the shared household except with the leave of
the Magistrate; or
f. directing the respondent to secure same level of
alternate accommodation for the aggrieved person as
enjoyed by her in the shared household or to pay rent for
the same, if the circumstances so require:..”

13. The Appellate Court, in its impugned judgment dated

08.03.2017, while relying upon judgment of our own High Court in

Subhash and another vs. Shivani (supra), modified the order passed by

the Judicial Magistrate Ist Class and has observed as under (para 14);

“….Keeping in view the dictum laid down by the Punjab

and Haryana High Court in the above said judgment,

coupled with the facts of the present case and in the

considered view of this court, the complainant-appellant

is entitled to reside in the shared house of the

respondents and the respondents have no right to

alienate the house in question without the consent of the

complainant-appellant.”

14. In Subhash and another vs. Shivani (supra), our own High

Court observed as under;-

“I have heard learned counsel for the
petitioner who places reliance on the judgment of S.R.

Batra and another Vs. Smt. Taruna Batra, 2007 (1)

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RCR (Crl.) 403 wherein it had been observed in the
circumstances of the case that wife could only be
entitled to claim a right to residence in a shared
household, and a shared household would only mean the
house belonging to or taken on rent by the husband, or
the house which belongs to the joint family of which the
husband is a member. The Supreme Court was pleased
to observe that the definition of shared household in
Section 2 (s) of the Act is not very happily worded.

I have considered the judgment cited by
counsel for the petitioner in context to the provisions of
Section 2 (s) of the Act which entitles a wife to resist
eviction from shared household. A shared household, as
per the Statute is where the wife (aggrieved person) lives
or at any stage has lived in a domestic relationship
either singly or along with the respondent and would
also include a household whether owned or tenanted
either jointly by the aggrieved person and her in-laws or
owned or tenanted by either of them in respect of which
either the aggrieved person or the respondent (in laws)
or both jointly or singly have any right, title, interest or
equity. The respondent wife after marriage had stayed in
the house and had acquired an interest and right to stay
in the shared household. The judgment of S.R. Batra’s
case (supra) does not deal with a situation where the
husband (respondent) is bent upon a mischief by
camouflaging a situation by taking different residence
and wants to wash his hands of his liability towards his
wife by claiming that he is now unemployed and not
having any residence. Even the husband has not come
forward with any plea in order to enable his wife to
enforce her legal rights under Section 17 (1) of the Act

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for a shared household for having a domestic
relationship. The father-in-law, petitioner No.1 has
certainly, a domestic relationship with the respondent.”

15. The two Judge Bench of Supreme Court in S.R. Batra and

another vs. Taruna Batra (supra) has dealt with the definition “shared

household” in detail, besides the other provisions of the DV Act. A similar

question arose whether a house, which exclusively belonged to mother-in-

law of the complainant wherein she only lived with her husband for some

time in the past after their marriage, comes within the ambit of “shared

household” under Section 2(s) of the DV Act. The Supreme Court while

allowing the appeal has held that ‘The house in question belongs to the

mother-in-law of the respondent. It does not belong to her husband. Hence

the respondent cannot claim any right to live in that house. There is no

such law in India, like the British Matrimonial Homes Act, 1967, and in any

case, the rights which may be available under any law can only be as

against the husband and not against the father-in-law or mother-in-law.’

Learned counsel for the respondent Smt. Taruna Batra stated that the

definition of shared household includes a household where the person

aggrieved lives or at any stage had lived in a domestic relationship. He

contended that since admittedly the respondent had lived in the property in

question in the past, hence the said property is her shared household. The

Supreme Court has further observed as under;-

“25. We cannot agree with this submission.

26. If the aforesaid submission is accepted, then it will
mean that wherever the husband and wife lived together
in the past that property becomes a shared household. It

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is quite possible that the husband and wife may have
lived together in dozens of places e.g. with the husband’s
father, husband’s paternal grand parents, his maternal
parents, uncles, aunts, brothers, sisters, nephews, nieces
etc. If the interpretation canvassed by the learned
counsel for the respondent is accepted, all these houses
of the husband’s relatives will be shared households and
the wife can well insist in living in the all these houses of
her husband’s relatives merely because she had stayed
with her husband for some time in those houses in the
past. Such a view would lead to chaos and would be
absurd.

27. It is well settled that any interpretation which
leads to absurdity should not be accepted.

28. Learned counsel for the respondent Smt Taruna
Batra has relied upon Section 19(1)(f) of the Act and
claimed that she should be given an alternative
accommodation. In our opinion, the claim for alternative
accommodation can only be made against the husband
and not against the husband’s in-laws or other relatives.

29. As regards Section 17(1) of the Act, in our opinion
the wife is only entitled to claim a right to residence in a
shared household, and a `shared household’ would only
mean the house belonging to or taken on rent by the
husband, or the house which belongs to the joint family
of which the husband is a member. The property in
question in the present case neither belongs to Amit
Batra nor was it taken on rent by him nor is it a joint
family property of which the husband Amit Batra is a
member. It is the exclusive property of appellant No. 2,
mother of Amit Batra. Hence it cannot be called a
`shared household’.

30. No doubt, the definition of `shared household’ in

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Section 2(s) of the Act is not very happily worded, and
appears to be the result of clumsy drafting, but we have
to give it an interpretation which is sensible and which
does not lead to chaos in society.

31. In view of the above, the appeal is allowed. The
impugned judgment of the High Court is set aside and
the order of Senior Civil Judge dismissing the injunction
application of Smt. Taruna Batra is upheld. No costs.”

The ratio as laid down in S.R. Batra’s case (supra) has

subsequently been followed in a catena of judgments across various High

Courts i.e. by the Kerala High Court in Hashir vs. Shima, 2015(3) RCR

(Criminal) 683, by the Madras High Court in V.P. Anuradha vs. S.

Sugantha and others, 2015(4) RCR (Criminal) 631, by Delhi High Court

in Harish Chand Tandon vs. Darpan Tandon and others, 2015(153) DRJ

273.

16. In the case in hand, the relationship of petitioner No.3-husband

and complainant-wife did not survive, which resulted in number of

litigations between the parties. During the pendency of the complaint, in

view of a compromise arrived at between the parties, both the complainant-

wife and petitioner No.3-husband took a separate accommodation in

Hakikat Nagar, Karnal. It was during their stay at this separate

accommodation, the complainant-wife got a complaint registered against

petitioner No.3-husband and he was, therefore, challaned under Section

107/151 Cr.P.C. It is thereafter, a battle of litigation started between both

the husband and wife. Subsequent thereto, petitioner No.3-husband

initiated divorce proceedings against the complainant-wife and thereafter,

complainant-wife got an FIR No.1072 dated 19.11.2015, registered under

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Sections 323, 406, 506 of Indian Penal Code and Section 25/54/59 of Arms

Act at Karnal.

17. The argument raised that petitioner No.3 is residing at Karnal

i.e as would be evident that service was effected upon him at the very

address and therefore the complainant-wife is entitled to reside therein is

an argument which is not sustainable. Mere service upon the husband at the

said address in Karnal cannot be taken to be a proof that he is residing there,

since his parents are parties to the litigation and that is their permanent

address. Moreover the salary slip relied upon shows petitioner no 3 to be

working at Yamuna Nagar. In the case in hand, neither the husband nor

the wife are residing in the house in question, which belonged to petitioner

No.1 (father-in-law) exclusively. In S.R. Batra’s case (supra), it has been

clearly held by the Supreme Court that the house belonged to father-in-law

or mother-in-law, cannot be termed as “shared household” merely because

complainant-wife and her husband lived together in the past as husband and

wife there. It has been further observed by the Supreme Court that the

wife is only entitled to claim a right to residence in a shared household and

a shared household would mean the house belonging to or taken on rent by

the husband, or the house which belongs to the joint family of which the

husband is a member. Therefore, decision of this court in Subhash and

another vs. Shivani (supra) is distinguishable and is not applicable to the

peculiar facts and circumstances of the present case. Merely on account of

existence of a domestic relationship between the wife and other relation of

her husband, it would not make out a case for a wife to claim residence in a

house, which exclusively belonged to the relatives of the husband. A shared

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household must be read to mean a house belonging to or taken on rent by

the husband, or the house which belongs to the joint family, of which the

husband is a member.

18. In view of the foregoing discussion and ratio of law held by the

Supreme Court in S.R. Batra’s case (supra) the first question formed by

this court is answered against the complainant-wife. The house in question,

being exclusive belonging to petitioner No.1 (father-in-law), it cannot be

called as a “shared household” within the ambit of Section 2(s) of the DV

Act. Consequently, the impugned judgment dated 08.03.2017 passed by the

Appellate Court is liable to be set aside to the extent that complainant-wife

has no right to claim right of residence in the house in question, which

belonged to her father-in-law and further that petitioner No.1 (father-in-law)

cannot be restrained from alienating the house in question, being not a

shared household. Instead , the complainant-wife is held entitled to claim

for alternative accommodation or payment of rent in lieu thereof.

19. The second question which arises for consideration is whether

the complainant-wife is entitled to enhancement of the maintenance

amount? In the complaint filed before the trial court, the complainant-wife

claimed the maintenance amount of Rs.6000/- per month. However, in the

absence of any documentary record, the trial court by its order dated

20.05.2015 held the complainant-wife entitled to maintenance @ Rs.4000/-

per month, which amount was enhanced to Rs.6000/- per month in appeal

by the Appellate Court by an order dated 08.03.2017. In the divorce

proceedings initiated by petitioner No.3-husband, on an application filed

under Section 24 of the Hindu Marriage, the husband has been directed to

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pay a sum of Rs.9000/- per month as maintenance, including the amount the

complainant-wife is getting under the DV Act. However this court cannot

loose sight of the fact that the said order passed under Section 24 of Hindu

Marriage Act, shall remain in subsistence, only during the pendency of the

divorce proceedings. In the instant criminal revision, the complainant-wife

is seeking increase in the maintenance amount and is claiming Rs.10,000/-

per month for herself, besides a sum of Rs.10,000/- per month to the minor

girl child. The complainant-wife claimed that present salary of her husband

is Rs.40,000/- per month and her daughter Payal is now studying in Class

IV in Dev International School, Butana, District Karnal, which fact should

be taken into consideration, while enhancing the maintenance amount. In

CRR No.1253 of 2017, joining letter of petitioner No.3-husband as

Assistant Manager has been produced on record, which reflects that basic

salary of petitioner No.3-Sandeep Kumar is Rs.1,39,980/- per annum, apart

from HRA Rs.30000/- per annum, Conveyance Rs.9600/- per annum,

Medical Rs.15000/- per annum, Lunch Allowance Rs.10,920/- per annum,

Personal Pay Rs.18,000/- per annum, Other Allowance Rs.98,040/- per

annum. If the basic salary as well as personal pay and other allowance are

calculated, it comes to Rs.2,56,020/- per annum. The said joining letter is

dated March 10, 2015, which is almost three years old which would have

increased over this period in the form of annual increments and other

incentives. So, if the total salary of petitioner No.3 is taken to be

Rs.3,00,000/- per annum, then the monthly salary comes to Rs.25,000/- per

month. Keeping in view the fact that cost of living is increasing as well as

the requirement of the minor female child, whom the complainant-wife is

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looking after, this court is of the considered view that interest of justice

would be met, if Rs.15,000/- per month is awarded as maintenance inclusive

of rental towards accommodation ( which she has been held entitled to in

lieu of residence in father-in-law’s house) to the complainant-wife for her

maintenance as well as for the upbringing of the minor female child.

20. In view of the foregoing discussion, the second question is

answered in favour of the complainant-wife. The complainant-wife is held

entitled to maintenance @ Rs.15,000/- per month from the date of this order

in criminal revision (CRR No.2471 of 2017). This amount of Rs.15,000/-

would be subject to adjustments with the maintenance amount, which the

complainant-wife is getting in any other proceedings. An argument has also

been raised that the impugned order granting maintenance @ Rs.6000/- per

month from the date of the complaint and not from the date of order, as

allowed by the JMIC, is not sustainable, as no cogent reasons have been

given by the Appellate Court for the same. This argument is not sustainable

since petitioner No.3-husband has been fastened with the liability of paying

maintenance @ Rs.9000/- per month under Section 24 of Hindu Marriage

Act, which is substantially more than the amount, that has been awarded.

21. Both the petitions stand partly allowed accordingly.

(JAISHREE THAKUR)
February 21, 2018 JUDGE
vijay saini

Whether speaking/reasoned Yes/No
Whether reportable Yes/No

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