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
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
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
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/