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Chandraveer Singh vs Anita on 3 March, 2020

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
D.B. Civil Misc. Appeal No. 385/2019

Chandraveer Singh S/o Shri Ram Singh, Aged About 33 Years,
B/c Rajput, R/o Malwa Colony, Pratapgarh

—-Appellant
Versus
Anita W/o Shri Chandraveer Singh, D/o Shri Kalu Singh, B/c
Rajput, R/o Ratlam, Madhya Pradesh

—-Respondent

For Appellant(s) : Mr. Abhinav Jain
For Respondent(s) : Mr.Naresh Singh for Mr. Rakesh Arora

HON’BLE MR. JUSTICE SANGEET LODHA
HON’BLE MR. JUSTICE MANOJ KUMAR GARG

Judgment

03/03/2020

1. This appeal is filed by the appellant assailing the legality of the

order dated 10.12.18 passed by the Judge, Family Court, Pratapgarh in

Family Misc. Case No.14/18, whereby an application preferred by the

respondent under Section 24 of the Hindu Marriage Act, 1955 (for short

“the Act of 1955”) has been allowed and the appellant is directed to pay

maintenance pendente lite to the respondent a sum of Rs.20,000/- per

month. That apart, the appellant is directed to pay a sum of Rs.720/- to

the respondent towards the expenses to attend the each date of

hearing.

2. The appellant filed a petition against the respondent seeking

divorce under the provisions of Section 13 of the Act of 1955. During

the pendency of the petition, the respondent filed an application under

Section 24 of the Act of 1955, claiming maintenance pendente lite from

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the appellant a sum of Rs.15,000/- per month for herself and her minor

son. That apart, the respondent claimed litigation expenses a sum of

Rs.10,000/- in lump sum and Rs.1,000/- towards the expenses for

attending the each date of hearing. The respondent averred in the

application that she has no source of income, whereas the appellant is

employed in Vodafone Cellular Company on a respectable post and also

earning from irrigated agriculture land. The income of the appellant was

disclosed as Rs.10,00,000/- per annum.

3. The appellant contested the application by filing a reply thereto,

taking the stand that he is working as labourer in the town Pratapgarh

and do not possess any land/immovable property. The appellant claimed

that the respondent is earning Rs.20,000-25,000 per month while

working as private teacher in Ratlam City. The appellant submitted that

he is already paying a sum of Rs.10,000/- per month as maintenance to

the respondent and Rs.8,000/- towards the maintenance for his minor

child Shivendra Singh pursuant to the order passed by the Family Court,

Ratlam and therefore, the respondent is not entitled for any further

maintenance.

4. After due consideration of the rival submissions and material on

record, the Family Court determined the amount payable towards

maintenance pendente lite and other expenses to the respondent as

indicated above. Hence, this appeal.

5. Learned counsel appearing for the appellant contended that the

monthly income of the appellant a sum of Rs.35,000/- assessed by the

Family Court without there being any material on record, is ex facie

capricious. Drawing the attention of the Court to the income tax return

filed by the appellant for the assessment year 2016-17, learned counsel

submitted that the appellant is earning only Rs.2,79,360/- per annum

and thus, the amount of maintenance determined by the Family Court is

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quite excessive. Learned counsel urged that when the appellant was

already paying a sum of Rs.18,000/- per month towards the

maintenance to the respondent pursuant to the order passed by the

Family Court, Ratlam in proceedings under Section 125 Cr.P.C., there

was no occasion for the Family Court, Pratapgarh to direct the appellant

to pay maintenance pendente lite to the respondent a sum of

Rs.20,000/- per month whereas, the appellant had claimed only

Rs.15,000/- per month. Learned counsel submitted that the award of

maintenance a sum of Rs.20,000/- as against the maintenance awarded

by the Family Court, Ratlam to the respondent a sum of Rs.10,000/- is

excessive and therefore, the order impugned deserves to be set aside.

In support of the contention, learned counsel has relied upon the

decision of the Supreme Court in the matter of Kalyan Dey Chowdhury

vs. Rita Dey Chowdhury Nee Nandy: Civil Appeal No.5369/16, decided

on 19.4.17 and Neeta Rakesh Jain vs. Rakesh Jeetmal Jain: 2010 AIR

SCW 4417.

6. On the other hand, the counsel appearing for the respondent

submitted that the amount of maintenance awarded can always be

varied with the passage of time and thus, taking into consideration the

totality of the facts and circumstances of the case, the amount of

maintenance awarded by the Family Court, Pratapgarh by the order

impugned cannot be said to be excessive. Learned counsel submitted

that the appellant has not approached the Court with the clean hands.

It is submitted that instead of filing the latest income tax return, the

appellant has filed the income tax return of 2016-17 which does not

reflect his income as on the date the order impugned was passed by the

Family Court, Pratapgarh. Learned counsel submitted that the Family

Court has already issued the directions that the amount which is being

paid by the appellant towards the maintenance in other proceedings

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shall be adjusted against the amount of maintenance to be paid in

terms of the order impugned and thus, there is absolutely no reason as

to why the order impugned passed by the Family Court should be

interfered with by this Court in exercise of its appellate jurisdiction.

7. We have considered the submissions of the learned counsel and

perused the material on record.

8. Indisputably, the purpose behind Section 24 of the Act of 1955 is

to provide necessary financial assistance to the party to the matrimonial

dispute who has no independent income of his own sufficient for her or

his support 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. However, no

hard and fast rule can be laid down for determination of the amount of

interim maintenance.

9. In Kalyan Dey Chowdhury’s case (supra), relied upon by the

learned counsel for the appellant, the Supreme Court has followed the

decision in Dr. Kulbhushan Kumar vs. Raj Kumar Anr. : (1970) 3 SCC

129, wherein it has been held that 25% of the husband’s salary would

be just and proper to be awarded as maintenance to the respondent

wife therein. But at the same time, it is categorically held that

maintenance is always dependant on the factual position of the case

and the court would be justified in moulding the claim of maintenance

passed on various factors.

10. In Neeta Rakesh Jain’s case (supra), the Supreme Court

observed:

“8. Section 24 thus provides that in any proceeding under the
Act, the spouse who has no independent income sufficient for
her or his support may apply to the court to direct the

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respondent to pay the monthly maintenance as the court may
think reasonable, regard being had to the petitioner’s own
income and the income of the respondent. The very language in
which Section is couched indicates that wide discretion has been
conferred on the court in the matter of an order for interim
maintenance. Although the discretion conferred on the court is
wide, the Section provides guideline inasmuch as while fixing the
interim maintenance the court has to give due regard to the
income of the respondent and the petitioner’s own income. In
other words, in the matter of making an order for interim
maintenance, the discretion of the court must be guided by the
criterion provided in the Section, namely, the means of the
parties and also after taking into account incidental and other
relevant factors like social status; the background from which
both the parties come from and the economical dependence of
the petitioner. Since an order for interim maintenance by its very
nature is temporary, a detailed and elaborate exercise by the
court may not be necessary, but, at the same time, the court
has got to take all the relevant factors into account and arrive at
a proper amount having regard to the factors which are
mentioned in the statute.”

11. Adverting to the facts of the present case, it is noticed that the

appellant did not approach the Court with clean hands inasmuch as

though employed in Vodafone Cellular Company, the appellant denied

the fact and proceeded to make an averment that he is working as a

labourer in Pratapgarh Town. The averment made by the respondent

regarding the income from irrigated agriculture land was also not

denied by the appellant specifically. Before this Court, the appellant so

as to project that he is not earning Rs.35,000/- per month as assessed

by the Family Court, has produced on record the income tax return of

the assessment year 2016-17 related to the previous year 2015-16

instead of filing the income tax return of the preceding year. Be that as

it may, on the facts and in the circumstances of the case, the income of

the appellant as assessed by the Family Court on the basis of the

material on record and taking into consideration the assessment of the

income already made by the Family Court in proceedings under Section

125 Cr.P.C. cannot be said to be capricious or perverse. There was

absolutely no material placed on record to establish that the respondent

is employed as teacher and earning Rs.20,000-25,000 per month. The

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Family Court has awarded the maintenance both for the respondent and

her minor son and not for the respondent alone as claimed by the

appellant. It is true that the respondent had claimed Rs.15,000/- per

month but the fact remains that the appellant has already been directed

by the Family Court, Ratlam in proceedings under Section 125 Cr.P.C. to

pay a sum of Rs.18,000/- per month towards the maintenance to the

respondent for herself and her minor son. In the considered opinion of

this court, on the facts and circumstances of the case, where the

respondent has the responsibility to upbring a minor child, the

enhancement of meagre amount of Rs.2,000/- towards the

maintenance payable, does not warrant any interference by this Court

in exercise of its appellate jurisdiction moreso, for the reason that

Family Court is not precluded from enhancing the amount of

maintenance payable under Section 24 of the Act of 1955 from time to

time.

12. The appeal is therefore, dismissed. No order as to costs.

(MANOJ KUMAR GARG),J (SANGEET LODHA),J
17-Aditya/-

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