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Ankit Lalit Shah vs Heer Ankit Shah on 15 January, 2020

C/SCA/3235/2019 ORDER

IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 3235 of 2019

ANKIT LALIT SHAH
Versus
HEER ANKIT SHAH

Appearance:
MR KUNAL S SHAH(5282) for the Petitioner(s) No. 1
MR DAIFRAZ HAVEWALLA(3982) for the Respondent(s) No. 1

CORAM: HONOURABLE MR.JUSTICE G.R.UDHWANI
Date : 15/01/2020
ORAL ORDER

Rule.

1. This court is conscious of the fact that no elaborate reasons on
merits of the case would be necessary for interim order; however
considering the vehemence of the learned counsel for the opponent
opposing this interim order, merits of the case are addressed.

2. The divorce petition has been filed by husband being Family Suit
No. 16 of 2017 with the Family Court, Surat. The wife is residing in
Hong Kong and is required to attend the proceedings whenever
necessary from Hong Kong. She preferred application Exh.11 invoking
section 24 of the Hindu Marriage Act ( for short ‘the Act’) for
maintenance pendente lite; which reads as under:

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.”

2.1. Apparently lack of sufficient supporting income for

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C/SCA/3235/2019 ORDER

maintenance and necessary litigation expenses should form the
principal foundation in the evidence for the order; be it interim or final,
under section 24 of the Act; to rest on. Contrary argument therefore
cannot be countenanced.

3. Learned counsel for the opponent contended that whenever the
respondent is required by the court, she had to expend on her travel
and necessary travel tickets were produced on record .Mere proof of
expenses cannot be considered as proof of insufficiency of independent
income and therefore notwithstanding the proof of expenses, no case is
made out under Section 24 of the Act.

4. The impugned order records following findings:

“5. In Section 24 of the Act, the legislature has intentionally
used the expression “maintenance” pendente lite. The term
maintenance has been used in a wider sense which includes
provision for food, clothing, habitation and medical assistance
and treatment. The scope and object of section 24 of the Act is to
provide means to a spouse who has no independent source of
income for her maintenance and to bear the necessary expenses
of the proceedings.

6. From the record, it transpires that the petitioner has not
produced any documentary evidence as to his working and
earning. The petitioner has not stated that what he is doing and
earning. The respondent has not produced any documentary
evidence regarding the working and earning of the petitioner and
also for herself.

7. Looking to the fact that the petitioner is serving and earning
and the respondent is also working and earning, this court finds
that both the parties are working and earning for their livelihood
and hence this court does not find to pass an order for
maintenance of the respondent, but the court had to pass
necessary order under Section 24 of the Act for the expenses of
the proceeding.”

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C/SCA/3235/2019 ORDER

4.1. Apparently, the learned judge was conscious of the requirement
of section 24 of the Act as is clear from paragraph 5 above. In
paragraph 6 the learned judge found that neither the petitioner nor the
respondent produced documentary evidence regarding working and
their earnings. Thus, learned judge was aware of the fact that the
respondent has no documentary evidence with her to show that she had
no sufficient independent income for sustenance and expenses. This
finding ought to have persuaded the learned judge to reject the
application. Infact this persuaded the learned judge to reject the
application as clearly recorded in paragraph no.7 of the order. However
in the very next breath emotions in substitution of legal position
persuaded the learned judge to ignore the law and award the
maintenance only on the ground that the wife had to attend the court on
each and every date fixed for hearing and that she has engaged an
advocate for the purpose. This consideration is unknown to section 24
of the Act as discussed in greater detail. Mere attendance of the
proceedings is not the justification for awarding maintenance pendente
lite by interim or final order under Section 24 of the Act. Moreover, the
respondent can be compensated in terms of money, if she finally makes
out the case under Section 24 of the Act.

5. For the foregoing reason the impugned order is required to the
stayed. Accordingly interim relief in terms of paragraph 23(c) is granted.

(G.R.UDHWANI, J)
niru*

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