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Dr. Ajay Kashyap vs Dr. (Smt.) Hemlata Kashyap(S.24)

Madhya Pradesh High Court
Dr. Ajay Kashyap vs Dr. (Smt.) Hemlata Kashyap And Anr. on 4/4/2005

ORDER

Rajendra Menon, J.

1. This petition under Article 227 of the Constitution has been filed
  challenging an order passed by the Family Court, Gwalior vide Annexure
  P-1 on 5-11-2004 granting maintenance to the respondent in a
  application under Section 24 of the Hindu Marriage Act filed by the
  respondent. Maintenance @ Rs. 2000/- per month to respondent No. 1 wife
  and Rs. 1000/- per month to her seven years old son has been granted by
  the impugned order.

2. Petitioner and respondent were married on 19-11-95 at Gwalior.
  Because of certain reasons petitioner filed an application for
  dissolution of the marriage under Section 13 of the Hindu Marriage Act
  before the Competent Court of jurisdiction at Indore where petitioner
  is residing. Petitioner contended in his application under Section 13
  Annexure P-2 that he has a B.A.M.S. Doctor having received Post
  Graduate Diploma in Management, he is a Regional Sales Manager in a
  Private Ayurvedic Hospital. Inter alia contending that respondent is
  also a B.A.M.S. Gold Medalist Doctor not willing to reside with him,
  proceedings have been initiated for divorce. Respondent wife appeared
  and moved an application before the Indore Bench of this Court seeking
  transfer of the proceedings to Gwalior. M.C.C. No. 1191/2003 for
  transfer was allowed and the matter has been transferred to the Family
  Court at Gwalior. During the pendency of the proceedings inter alia on
  the ground that she is unemployed unable to maintain herself and her
  seven years old son, respondent wife filed an application Annexure P-4
  under Section 24 of the Hindu Marriage Act seeking a sum of Rs.
  10,000/- as maintenance and litigation expenses for herself and her
  son. This application was opposed by the petitioner, petitioner filed
  his reply and stated that for carrying out her practise respondent had
  issued certain advertisement in a newspaper “Dainik Bhaskar” indicating
  that she has established a clinic for consultation purpose at Gwalior
  namely “Charak Ayurvedic and Research Centre”. On the ground that
  respondent is earning and is capable of maintaining herself petitioner
  resisted the claim of respondent wife. Respondent wife also filed
  counter affidavit indicating that even though she had made endeavour to
  start her own private practise in the year 2002 but she could not
  established her practise, she was not even able to get the rent for
  maintaining the Chamber and, therefore, she has closed the Centre
  opened by her and at present is unemployed unable to maintain herself
  and her child. Considering the rival contentions made by both the
  parties, learned Court has allowed the application for maintenance to
  the extent of Rs. 2000/- for the wife and Rs. 1000/- for the Child.
  This order is challenged and inviting my attention to various documents
  available on record, Shri Pateria, learned Counsel argued that it was
  pointed out before the Court that petitioner is also unemployed, he has
  tendered his resignation from the establishment where he was working
  and ignoring all these pleadings, order passed for maintenance is said
  to be illegal. In inviting my attention to certain observations made by
  a Bench of this Court in the case of Smt. Mamta Jaiswal v. Rajesh
  Jaiswal, 2000(4) M.P.H.T. 457 = 2000(2) DMC 170, Shri Pateria argued
  that when the wife is duly qualified and is able to maintain herself
  and is incapable of maintaining herself by sitting idle without doing
  any service, such a lady is not entitled for maintenance for herself.
  Inter alia contending that petitioner is also unemployed and his
  application for claiming maintenance against the wife is pending,
  learned Counsel argued that the order is unsustainable.

See also  HC uphold grounds of cruelty - Divorce

3. Smt. Alka Dixit, learned Counsel appearing for the respondent wife
  refuted the aforesaid and submitted that a reasonable order of
  maintenance passed exercising discretion by the learned Court does not
  call for any interference by this Court. Placing reliance on two orders
  passed by this Court in the case of Sharad Kumar Gotee v. Mangal Singh,
  1987 (I) MPWN 220 and Smt. Yashoda Bai v. Omkar, 1987 (I) MPWN 43. Smt.
  Dixit argued that petitioner is liable to pay maintenance and,
  therefore, no case of interference is made out,

4. I have heard learned Counsel for the parties and perused the
  records.

5. It was the case of the respondent wife that petitioner is a Regional
  Sales Manager in a Private Ayurvedic Company and is earning Rs.
  25,000/- per month. In his application filed under Section 13 of the
  Hindu Marriage Act Annexure P-2 petitioner has indicated in Para 1 that
  he is a B.A.M.S. Doctor having Post Graduate Diploma in Management, he
  is working as Regional Manager in a Private Ayurvedic Company. These
  factors have been considered by the Court below and it has been held by
  the learned Court that merely because petitioner contends that he has
  resigned from the job he can not seek exemption from payment of
  maintenance. Affidavits and documents filed have been taken note of and
  after evaluating the material available on record, impugned order has
  been passed by the learned Court. Question is as to whether any
  interference in the matter can be made by this Court in a petition
  under Article 227 of the Constitution.

See also  Dowry, Cruelty and dissolution of the marriage

6. The judgment in the case of Munni Bai v. Jagdish, 1998(2) M.P.L.J.
  339, relied upon by Shri Arun Pateria is clearly distinguishable. That
  was a case for enhancement of the compensation awarded and while
  rejecting the claim for enhancement certain observations have been made
  by the learned Court with regard to right of an educated spouse to seek
  maintenance without making any efforts to secure employment and by
  remaining idle. The question of granting maintenance and the claims to
  be considered for dealing with such of the application under Section 24
  has been considered by a Bench of this Court in the case of Munni Bai
  (supra), and it has been held by this Court that while determining the
  claim of maintenance under Section 24 of the Hindu Marriage Act, the
  facts to be kept in mind is as to whether the applicant has any
  independent means to maintain himself or herself. A good cause for
  depriving the applicant right to maintenance is availability of an
  assured independent income. After considering in detail the requirement
  of Section 24 in Paras 26 to 30 of the aforesaid judgment, it has been
  held by this Court that the availability of independent means of
  livelihood of the wife has to be taken note of. In the present case,
  the facts as marshalled indicates that even though respondent wife had
  make endeavour for starting her own consultation clinic had made
  efforts for establishing the same. The affidavit filed by her indicates
  that she could not succeed in the same and having made efforts, she has
  no independent source of income for maintaining herself and her seven
  years old son. Learned Family Court has marshalled all these materials
  and after taking note of the rival contentions and the affidavit filed
  by each other has recorded a finding that respondent wife is
  unemployed, unable to maintain herself and her child. Petitioner is a
  qualified Doctor and can maintain the wife and child for which Rs.
  3000/- have been assessed. It has been held by the learned Court that
  petitioner was a Regional Sales Manager earning Rs. 25,000/- per month,
  he can not be exonerated from the liability of maintaining his wife and
  child only on the ground that now he has resigned from the job. Holding
  him to be well qualified, learned Court has directed for grant of
  maintenance by the impugned order.

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7. This Court while exercising limited jurisdiction under Article 227
  of the Constitution does not sit over the findings recorded by the
  Inferior Court or Tribunal as if it is exercising appellate
  jurisdiction, in the matter by marshalling the evidence, this Court can
  not record a finding different from the one recorded by the Family
  Court by re-appreciating the evidence. Interference is permissible only
  if on the basis of the material available on record finding recorded by
  the Court below can be termed as perverse to such an extent that no
  prudent man on reasonable consideration would arrive at such of the
  finding or the finding is contrary to the well settled legal
  principles. On marshalling the material available on record the views
  expressed by the learned Family Court is one of the possible views that
  can be arrived at and when this is the position, this Court has to be
  uphold the aforesaid view even if the other view as canvassed by Shri
  Arun Pateria could be one of the possible view.

8. A reasonable finding recorded by the Family Court on the basis of
  the due appreciation of the evidence and material available on record
  can not be substituted by this Court by a different finding as if this
  Court is exercising appellate jurisdiction over the findings of the
  Family Court. As the impugned order is reasonable in accordance with
  law, it is not a fit case where interference in the matter in a
  petition under Article 227 of the Constitution is called for. The
  findings recorded with regard to inability of respondent wife to
  maintain herself and her child is a reasonable finding based on material available on record which can not be termed as perverse or erroneous to such an extent that interference in the matter is called for in these proceedings.

9. Accordingly, finding no ground to interfere in the matter, petition stands dismissed without any order as to costs.

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