Mahendra Kumar vs Smt. Indra Devi on 8 May, 2017

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Civil Writ Petition No. 9402 / 2016
Mahendra Kumar S/o Shri Tarachand, Aged About 31 Years, B/c
Bothra Oswal R/o Near Hanumant Happy School, Maloo Chowk,
Nokha, District-bikaner

—-Petitioner
Versus
Smt. Indra Devi W/o Shri Mahendra Kumar D/o Shri Trilok Chand,
B/c Jain, R/o Village-khichan, Tehsil-phalodi, District-jodhpur

—-Respondent
Connected With
S.B. Civil Writ Petition No. 3810 / 2017
Smt. Indra Devi W/o Shri Mahendra Kumar D/o Trilok Chand, Aged
About 31 Years, B/c Jain, Resident of Village Khichan, Tehsil-
Phalodi, District- Jodhpur. At Present R/o C/o Shri Amar Chand
House No-12, Tilak Nagar First, Jodhpur

—-Petitioner

Versus

Mahendra Kumar S/o Shri Tara Chand,, Aged About 32 Years, B/c
Bothra Oswal, Resident of Near Hanumant Happy School, Maloo
Chowk, Nokha, District- Bikaner

—-Respondent
__
Mr.S.L.Jain, for the petitioner in C.W.No.9402/16 for respondent
in C.W.No.3810/17.

Mr.H.M.Sarsawat, for the petitioner in C.W.No.3810/17 and for
respondent in 9402/16.

__
HON’BLE MR. JUSTICE SANGEET LODHA
Judgment
08/05/2017

1. These two writ petitions arising out of the order dated

10.6.16 of Additional District Judge, Phalodi allowing the

application preferred under Section 24 of Hindu Marriage Act,

1955 (for short “the Act’) by the wife Smt. Indira Devi and
(2 of 7)
[CW-9402/2016 one connected petition]

directing the husband Mahendra Kumar to pay the maintenance

pendente lite, were heard together and are being disposed of by a

common order.

2. The petitioner Mahendra Kumar has questioned the legality

of order dated 30.10.16 granting maintenance, by way of Writ

Petition No.9402/16 whereas, the petitioner Smt. Indira Devi has

preferred the Writ Petition No.3810/17, seeking enhancement of

the amount of maintenance pendente lite determined by the court

below.

3. The facts relevant are that Smt. Indira Devi has filed a

petition under Section 13 of the Act which is being contested by

the husband Shri Mahendra Kumar by filing a reply thereto. During

the pendency of the petition, the wife Smt. Indira Devi filed an

application under Section 24 of the Act claiming maintenance

pendente lite and the litigation expenses. The applicant claimed

maintenance Rs.25000/- per month, the litigation expenses

Rs.15000/- and Rs.600/- towards the expenses to attend each

date of hearing.

4. After due consideration, the trial court has awarded

Rs.3,000/- per month as maintenance pendente lite and Rs.2000/-

per month towards the litigation expenses. Hence, these petitions.

5. Learned counsel appearing for the petitioner Mahendra

Kumar contended that the order impugned passed by the court

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below is illegal and arbitrary inasmuch as, the same has been

passed taking into consideration the affidavit filed on behalf of the

respondent Smt. Indira Devi, copy whereof was not even supplied
(3 of 7)
[CW-9402/2016 one connected petition]

to the petitioner. Learned counsel submitted that on the basis of

the averments made in the said affidavit, the court below has

drawn the conclusion regarding sound financial condition of the

petitioner. Learned counsel submitted that the facts mentioned in

the affidavit regarding the transaction of lacs of rupees in the bank

account of the petitioner are absolutely false. In this regard,

learned counsel has drawn attention of this court to the statement

of the bank account of the relevant period placed on record.

Learned counsel submitted that the petitioner is only a contractual

employee earning Rs.1,01,440/- per annum and thus, the

maintenance pendente lite awarded by the court below in favour

of the respondent Smt.Indira Devi is highly excessive. Learned

counsel submitted that there is no justification for awarding

litigation expenses Rs.2000/- per month. Learned counsel

submitted that the amount of litigation expenses has to be

determined taking into consideration the actual expenses likely to

be incurred and thus, the order impugned passed by the court

below awarding litigation expenses as aforesaid cannot be

sustained.

6. On the other hand, the counsel appearing for the respondent

Smt. Indira Devi has not disputed that the affidavit inter alia

giving the details of the transactions in the bank account of the

petitioner Mahendra Kumar was filed, but before the copy thereof

could be supplied to the counsel appearing on behalf of the

petitioner Mahendra Kumar, the application preferred under

Section 24 of the Act was decided by the trial court. However,
(4 of 7)
[CW-9402/2016 one connected petition]

learned counsel contended that besides being employee of the

Central Cooperative Bank, Bikaner, the petitioner Mahendra Kumar

is engaged in the work of National Commodity and Derivatives

Exchange and Multi Commodity Exchange and thus, he is earning

more than one lac rupees per month. Learned counsel submitted

that keeping in view huge monthly income of the petitioner, the

amount of maintenance pendente lite Rs.3000/- determined by

the court below is too meagre and therefore, deserves to be

enhanced adequately. Learned counsel submitted that keeping in

view the huge expenses to be incurred by the respondent towards

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the advocate’s fee and other litigation expenses including to and

fro expenses for attending each date of hearing, the litigation

expenses Rs.2000/- per month awarded by the court below cannot

be said to be excessive so as to warrant interference by this court.

7. I have considered the rival submissions and perused the

material on record.

8. A bare perusal of the provisions of Section 24 of the Act

makes it abundantly clear that either the wife or the husband, as

the case may be, has no independent income sufficient for her or

his support and the necessary expenses of the proceedings may

apply for interim maintenance and while determining the

maintenance pendente lite and expenses of the proceedings, the

court shall have regard to the petitioner’s own income and the

income of the respondent. The purpose behind Section 24 of the

Act is to provide necessary financial assistance to the party to the

matrimonial dispute who has no sufficient means to maintain
(5 of 7)
[CW-9402/2016 one connected petition]

himself/herself or to bear the expenses of the proceedings. While

considering the application for award of interim maintenance , the

relevant consideration is the inability of the spouse to maintain

himself or herself for want of independent income or inadequacy

of the income to maintain at the level of social status of other

spouse. No hard and fast rule can be laid down for determining

the amount of maintenance pendente lite. Suffice it to say that u/s

24, the vast discretion is vested with the court to award

maintenance which has to be exercised reasonably and judicially.

9. In the backdrop of position of law discussed as above,

adverting to the facts of the present case, there is nothing on

record suggesting that the respondent Smt. Indira Devi has her

own source of income. It is not disputed that the petitioner

Mahendra Kumar is employed in the Central Cooperative Bank

Limited at the relevant time was drawing salary of Rs.1,01,440/-,

which is bound to increase every year. It is true that the copy of

the affidavit filed on behalf of Smt. Indira Devi on the day the

application is decided was not supplied to the petitioner herein and

therefore, he had no occasion to file counter thereto. In any case,

a perusal of the statement of bank account placed on record by

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the petitioner Mahendra Kumar before this court reveals that the

averments made in the affidavit filed by the respondent regarding

the transaction of the lacs of rupees in the bank account of the

petitioner Mahendra Kumar are incorrect. The factum of the

petitioner being engaged in the work of NCDEX and MCX is also

not substantiated by any evidence on record. But in any case,
(6 of 7)
[CW-9402/2016 one connected petition]

from material on record, it is apparent that the petitioner has

reasonable source of income and thus, keeping in view high

inflation, the maintenance awarded by the court below in favour of

the respondent appears to be in lower side and deserves to be

enhanced reasonably. In the considered opinion of this court,

keeping in view all the relevant aspects of the matter, the amount

of maintenance payable to the respondent determined by the

court below as Rs.3000/- per month deserves to be enhanced to

Rs.4,000/- per month.

10. Coming to the litigation expenses Rs.2000/- per month,

there is absolutely no justification emerges out from the record for

awarding litigation expenses on monthly basis and thus, the order

passed by the court below regarding award of litigation expenses

deserves to be modified appropriately. On the facts and in the

circumstances of the case, it would be appropriate that the

petitioner Mahendra Kumar is directed to pay lump sum

Rs.10,000/- towards the litigation expenses and further Rs.500/-

towards to and fro and other expenses for each date of hearing

attended by the respondent.

11. Accordingly, it is directed that the respondent Smt. Indira

Devi shall be entitled for maintenance pendente lite from the

petitioner Mahendra Kumar a sum of Rs.4000/- per month instead

of Rs.3000/- as determined by the court below. The order passed

by the court below directing the petitioner Mahendra Kumar to pay

Rs.2000/- as litigation expenses to the respondent Smt. Indira

Devi shall stand set aside. The petitioner Mahendra Kumar shall
(7 of 7)
[CW-9402/2016 one connected petition]

pay a sum of Rs.10,000/- to the respondent Indira Devi towards

litigation expenses and further Rs.500/- towards to and fro

expenses on each date of hearing attended by the respondent

before the court below. The order dated 10.6.16 passed by the

court below shall stand modified accordingly.

12. The writ petitions stand disposed of in the terms indicated

above.

(SANGEET LODHA)J.

Aditya/

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