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Anjani Kumar @ Pintu vs Priya Devi @ Soni on 5 July, 2019

IN THE HIGH COURT OF JUDICATURE AT PATNA
CIVIL MISCELLANEOUS JURISDICTION No.387 of 2019

Anjani Kumar @ Pintu, Son of Damodar Prasad, Resident of Kasyap Nagar,
New Police Line, Police Station- Ara Nawada, District Bhojpur.

… … Petitioner
Versus
Priya Devi @ Soni Wife of Anjani Kumar, daughter of Late Surendra Prasad
Sinha, 15 B, Ashok Nagar, Police Station- Kankarbagh, District- Patna.

… … Respondent

Appearance :

For the Petitioner : Mr.Makardhwaj Upadhyay, Advocate
For the Respondent : Mr.

CORAM: HONOURABLE MR. JUSTICE ASHWANI KUMAR SINGH
ORAL JUDGMENT
Date : 05-07-2019

This application under SectionArticle 227 of the Constitution of

India has been filed by the petitioner for setting aside the order

dated 25.05.2018 passed by the learned Principal Judge, Family

Court, Bhojpur, Ara whereby he has directed the petitioner to pay

ad-interim maintenance to the respondent amounting to Rs.8000/-

per month from the date of filing of the suit and Rs.20,000/- as

cost of litigation to the respondent herein.

2. Learned counsel for the petitioner submitted that the

petitioner had initially filed Matrimonial Case No. 6 of 2011 under

Section 9 of the Hindu Marriage Act for restitution of conjugal

rights. Since the respondent did not join in the said case in spite of

due service of notice, the said case could not proceed.

Subsequently, the respondent filed a complaint vide Complaint

Case No. 77C of 2015 in the court against the petitioner inter alia
Patna High Court C.Misc. No.387 of 2019 dt.05-07-2019
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under Section 498A of the Indian Penal Code. He submitted that as

a matter of fact, the respondent has herself deserted the petitioner

and is not willing to live in her matrimonial home. Left with no

other option the petitioner filed Matrimonial Case No. 279 of 2013

seeking decree of divorce. Considering the aforesaid aspects, the

trial court ought to have rejected the application filed on behalf of

respondent but erroneously it has allowed the application of the

respondent and directed the petitioner, who is working as an agent

in Sahara India to pay Rs.8000/- per month as maintenance

allowance. According to him, the order impugned is erroneous in

law and is fit to be set aside.

3. Having heard learned counsel for the petitioner and

perused the materials on record, I find that the petitioner has filed

Matrimonial Case No.279 of 2013 seeking a decree of divorce.

After filing of the Matrimonial Case No.279 of 2013, the

respondent has filed Complaint Case No. 77C of 2015 against the

petitioner under Section 498 A of the Indian Penal Code and

Sections 3 and Section4 of the Dowry Prohibition Act alleging therein that

she was married to the petitioner on 21.06.2010. After marriage,

she was subjected to cruelty in various ways for non-fulfillment of

demand of dowry. The said complaint case is still pending.
Patna High Court C.Misc. No.387 of 2019 dt.05-07-2019
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4. In her application, she has stated that the petitioner

owns a three-storied house out of which two stories have been

given on rent. The petitioner earns Rs. 15,000/- per month as rent.

He also owns two vehicles, namely, Bolero and vehicle, which

plies on hire. He also runs a poultry firm and is engaged in trade of

share. Apart from the income of the aforesaid sources, he is also

working as an agent of Sahara India. She has further stated that the

total income of the petitioner is about Rs. 3 lakhs per month out of

the different trade and business being done by the petitioner. She

has also stated that she does not have any income and is totally

dependent on his brothers whose economic condition is itself bad.

On the basis of the aforesaid pleas, the respondent claimed Rs.

30,000/- per month as an interim maintenance allowance.

5. The petitioner contested the claim of the respondent.

He has stated in his reply to the claim made by the petitioner that

the brother of the respondent is a businessman and his monthly

income is about 1 lakh. He also owns a house in Kankarbagh

Colony, Patna, which is fitted with all modern appliances. The

respondent is also a working lady and earns about Rs. 30,000/- per

month. He has denied having any vehicle or medical agency or

poultry firm of his own. However, he has admitted that he works

as an agent in Sahara India and out of the income from the agency
Patna High Court C.Misc. No.387 of 2019 dt.05-07-2019
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somehow he is able to lead his life. On such pleas, he has made a

request to the Court to dismiss the application filed by the

respondent under Section 24 of the Hindu Marriage Act.

6. Having appreciated the rival submissions, the court

below has directed the petitioner to pay interim maintenance

allowance amounting to Rs. 8,000/- per month from the date of

filing of the suit and Rs.20,000/- as cost of litigation to the

respondent.

7. As far as the factum of marriage is concerned, the

same is not disputed. Though, the petitioner has disputed his

income from various sources, as stated by the respondent, he has

admitted that he is working as an agent in the Sahara India. He has

not brought on record anything to suggest that the respondent is a

working lady. The statement made by the petitioner that the

respondent is earning Rs.30,000/- per month from her private job

is not corroborated by any oral or documentary evidence. That

apart, the ground taken by the petitioner that since the respondent

is not living in her matrimonial house and has herself deserted the

petitioner is no ground for denying her maintenance. It is not

disputed that the respondent has filed a case inter alia under

Section 498A of the Indian Penal Code against the petitioner,

which is still pending in the court. If the wife alleges that she is
Patna High Court C.Misc. No.387 of 2019 dt.05-07-2019
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being subjected to cruelty in her matrimonial home, she has a right

not to live in her matrimonial home in order to save herself from

further torture.

8. It is true that wife’s income has to be taken into

account while determining the amount of maintenance payable to

her. However, in absence of any proof of employment of the

respondent, the court below has rightly directed the petitioner to

pay maintenance allowance to his wife.

9. SectionIn Sunita Kachwaha and Ors. vs. Anil Kuchwaha

[(2014) 16 SCC 715], the Supreme Court has held that even if the

wife was earning some amount, that may not be a reason to

outrightly reject her maintenance application.

10. The amount allowed as interim maintenance

allowance is neither unreasonable nor unjustified. The order

impugned needs no interference by this Court in exercise of power

conferred under SectionArticle 227 of the Constitution of India.

11. The application is dismissed.

(Ashwani Kumar Singh, J.)
kanchan/-

AFR/NAFR NAFR
CAV DATE NA
Uploading Date 09.07.2019
Transmission Date NA

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