HIGH COURT OF JUDICATURE AT ALLAHABAD
Court No. – 34
Case :- FIRST APPEAL No. – 93 of 2017
Appellant :- Amit Sikarwar
Respondent :- Smt. Shweta Singh
Counsel for Appellant :- Saurabh Gour,A.B.L. Gour
Counsel for Respondent :- Arvind Agrawal
Hon’ble Sudhir Agarwal,J.
Hon’ble Rajeev Misra,J.
1. Heard Mr. A.B.L. Gour, learned Senior Counsel assisted by Mr. Saurabh Gour, learned counsel for appellant and Mr. Manoj Kumar Yadav holding brief of Mr. Arvind Agrawal, learned counsel for respondent.
2. This appeal under Section 19 of Family Courts Act, 1984 (hereinafter referred to as “Act, 1984”) has arisen from judgment and order dated 24.01.2017 passed by Principal Judge, Family Court/Fast Track Court No.1, Agra on an application under Section 24 of Hindu Marriage Act, 1955 (hereinafter referred to as “Act, 1955”) filed by Respondent-wife, Smt. Shweta Singh in Matrimonial Suit No. 39 of 2015 (Amit Sikarwar Vs. Smt. Shweta Singh).
3. The only point of determination for adjudication of this appeal is, “whether Family Court/Court below was justified in awarding interim maintenance to Respondent-wife without examining material on record and by observing that evidence shall be examined later on and such a judgement, whether can be sustained in law or not.”
4. From perusal of record, it appears that Respondent-wife filed an application under Section 24 of Act, 1955 during pendency of Divorce Suit No. 39 of 2015 ( Amit Sikarwar Vs. Smt. Sweta Singh) claiming interim maintenance of Rs. 20,000/- per month, Rs.11,000/- towards litigation expenses and Rs. 500/- towards conveyance expenses. Respondent-wife stated that Appellant-husband is a Mechanical Engineer and working in L T-MHPS Boilers Private Limited, Faridabad and his salary is about Rs. 1,80,000/- per month though respondent-wife has no source of income; Appellant is not keeping his wife without any valid reason, therefore, she is entitled for interim maintenance and other expenses.
5. The said application was contested by Appellant-husband. He denied the averments made in application regarding income of appellant which was alleged to be Rs.1,80,000/- per month. On the contrary, he pleaded that Respondent-wife is working in a Private School and earning sufficient salary from there and she is not entitled to interim maintenance. Appellant also pleaded in his objections that details of salary of respondent-wife may be summoned from the college concerned.
6. A copy of salary statement of Smt. Sweta Singh was sent by Principal Christ The King Inter College, Tundla Firozabad and filed before Court below. From perusal of same, it is evident that gross salary of respondent-wife was Rs. 25140/- per month and she was paid Rs.23,340/- after deduction in the month of June, 2017. The aforesaid document was proved by Charles Joseph, working as P.T.I. in the said college, vide the statement dated 16.05.2017.
7. Unfortunately, no evidence has been examined by Court below while passing impugned order. To the contrary, Court below has observed, whether Respondent-wife is earning sufficient income or not, shall be examined after considering evidence, which may be filed and without examining evidence, which is already on record, Court Below has passed impugned order awarding interim maintenance of Rs. 15,000/- and Rs. 10,000/- towards litigation expenses.
8. The approach of Court below while passing impugned order without examining evidence on record is clearly illegal and not sustainable in law. Pre-condition for award of interim maintenance under Section 24 of Act, 1955 is that order shall be passed having regard to the income of appellant as also the income of respondent. Court shall pass an order of interim maintenance under Section 24 of Act, 1955 taking into consideration the principal of reasonable amount. For ready reference Section 24 of Act, 1955 is quoted as below:
“24. Maintenance pendente lite and expenses of proceedings.- Where in any proceeding under this Act it appears to the court 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 proceeding, it may, on the application of the wife or the husband, order the respondent to pay to the petitioner the expenses of the proceeding, and monthly during the proceeding such sum as, having regard to the petitioner’s own income and the income of the respondent, it may seem to the court to be reasonable”
9. In the present case neither salary of respondent has been considered nor income of appellant has been considered and therefore, order impugned has been passed in utter disregard of requirement of Section 24 of Act, 1955. We further find that Court below has gone to the extent of making an observation that wife’s independent income is immaterial while considering issue relating to grant of interim maintenance to the wife under Section 24 of Act, 1955. This observation made by Court below is contrary to what has been stated in Section 24 of Act, 1955.
10. In the light of discussion made herein above, it is evident that the impugned order passed by Court below cannot be sustained being illegal as same has been passed without considering specific provision of Section 24 of Act, 1955.
11. The points for determination formulated above are answered in favour of appellant. The Appeal is allowed. Impugned order dated 24.01.2017 passed by Court below is set aside.
12. However, we remit the matter to Court below to re-examine claim under Section 24 of Act, 1955 raised by respondent and pass fresh order in accordance with law, after considering evidence available on record. We also make it clear that amount, if any paid during pendencey of appeal, by husband-appellant, same shall be adjusted in the ultimate order passed by Court below but there shall be no refund by respondent to appellant. .
13. Parties shall bear their own costs.
Order Date :- 26.9.2019