IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
CMPMO No. 208 of 2017
Decided on: 29.11.2017
Sh. Anil Kumar Jamwal …Petitioner
.
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
.
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 his30/11/2017 23:54:38 :::HCHP
4actual 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.
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 litigationexpenses. 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
r to
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