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Deepak Shrivastava vs Smt.Jyoti on 15 March, 2018

1 W.P. No.6432/2016

HIGH COURT OF MADHYA PRADESH : BENCH AT
INDORE
(SINGLE BENCH : HON. Mr. JUSTICE VIVEK RUSIA)

W.P. No.6432 of 2016
Deepak Shrivastava. … Petitioner.

Vs.

Smt. Jyoti Shrivastava … Respondent.

***************
Shri Vinay Gandhi, Advocate for the petitioner.
Shri S.K. Golwalkar, Advocate for the respondent.
****************

ORDER

(Reserved on 12.03.2018)
(Passed on 15th March, 2018)

The petitioner – husband has filed the present
petition being aggrieved by order dated 15.7.2016 passed
by Additional Principal Judge, Family Court, Indore in
HMA Case No.290/2013, by which the petitioner has been
directed to pay the interim maintenance @ Rs.4,000/- per
month to the respondent-wife from 1.7.2015 in exercise of
powers u/s. 24 of the Hindu Marriage Act.

2. The facts, in short, are that the marriage
between the petitioner and respondent was solemnised on
11.3.2012. Due to some dispute arose between them, they
started living separately. The petitioner filed an application
u/s. 13(1)(i)-A of the Hindu Marriage Act on the ground of
cruelty. After receipt of summons, the respondent filed an
application u/s. 24 of the Hindu Marriage Act (hereinafter,
for short, “the Act”) claiming maintenance @ Rs.65,000/-

2 W.P. No.6432/2016

per month and the litigation expenses @ Rs.25,000/-. The
petitioner filed the reply to the said application by
submitting that the respondent is already working as
Assistant Professor in Career College of Law, Bhopal and
is getting Rs.15,050/- per month as salary and she owns a
house at Bhopal, therefore, she is not entitled to seek
maintenance from him. In support of the reply, the
petitioner has filed bank account statement of the
respondent; certificate dated 23.10.2015; and biodata of
the respondent. The petitioner has also filed documents to
show that she has purchased a house in a total sale-
consideration of Rs.4,25,000/- and obtained a loan of
Rs.2,00,000/- for purchase of a car.

3. Vide order dated 1.7.2015, the learned Family
Court has partly allowed the application filed u/s. 24 by
directing the petitioner to pay the interim maintenance @
Rs.5,000/- per month. Being aggrieved by the said order,
the petitioner filed writ petition No.5078/2015 before this
Court. By order dated 23.11.2015, this Court has set aside
the order and remanded the matter back to the Family
Court to decide afresh in accordance with law. Now, by the
impugned order dated 15.7.2016, the learned Family Court
has only reduced the amount from Rs.5,000/- to Rs.4,000/-
with the direction to the petitioner to pay from 1.7.2015
along with travelling expenses as litigation expenses at
Rs.8,000/-. Being aggrieved by the said order, the
petitioner has filed the present petition before this Court.

4. Shri Gandhi, learned counsel appearing for the
petitioner, vehemently argued that Section 24 of the Hindu
3 W.P. No.6432/2016

Marriage Act and Section 125 of the Cr.P.C. are not meant
for wife like the respondent who is able to maintain
herself. She cannot be permitted to use the beneficiary
provisions of law which are meant for the wife in need and
having no independent source of income. The respondent
is the owner of a house and a car and also working as
Assistant Professor under the norms of University Grant
Commission getting Rs.15,050/- as salary per month,
cannot be said to be a wife unable to maintain herself. The
learned Family Court cannot be permitted to pass the order
mechanically on an application filed by the wife. The
Family Court is expected to apply its mind while passing
the order of maintenance. In support of his contention, he
has placed reliance over the judgment of Delhi High Court
passed in the case of Manish Kumar V/s. Mrs. Pratibha
(CM(M) No.949/2008).

5. On the other hand, Shri Golwalkar, learned
counsel appearing for the respondent – wife, submitted that
the petitioner is working as Professor in the Government
College drawing the salary of more than Rs.1,00,000/-
which is much more higher as compared to the salary of
the wife/respondent. Looking to the status of the petitioner,
the learned Family Court has rightly allowed the
application by directing him to pay the interim
maintenance and the litigation charges. In support of his
contention, he has placed reliance over the judgment of
Smt. Mamta Jaiswal V/s. Rajesh Jaiswal : 2000(4)
MPHT 457; and Raghubir Yadav V/s. Smt. Purnima
Kharga (Yadav) : 2001(1) MPLJ 603 and prayed for
4 W.P. No.6432/2016

dismissal of the writ petition.

6. I have heard Shri Gandhi, learned counsel for
the petitioner and Shri Golwalkar, learned counsel for the
respondent.

7. In the first round of litigation, this Court vide
order dated 23.11.2015, had remanded the case in the light
of the judgment passed in Raghubir Yadav (supra) and
directed the Family Court to decide the application for
grant of maintenance afresh in accordance with law.

8. The facts of the case are not in much dispute.
The respondent is not disputing about her working as
Assistant Professor, income, ownership of a house and a
car. In her application filed u/s. 24 of the Hindu Marriage
Act, she has pleaded that she has no source of income and
she is dependent on her father to fulfil her daily needs and
looking to the status of the petitioner, hence she is entitled
for the maintenance @ Rs.65,000/- per month. In view of
the material available on record, the respondent has stated
absolutely incorrect averments in the application. She has
conveniently suppressed the fact of her working as
Assistant Professor, ownership of a house and a car in
order to get the maintenance and harass the petitioner. The
Family Court has recorded the finding that she is getting
the salary of Rs.15,050/- per month but held that since the
petitioner is getting much more higher salary than the
respondent, therefore, she is entitled to get Rs.4,000/- per
month as maintenance.

9. As per Section 24 of the Hindu Marriage Act,
where, in the proceedings under this Act, it appears to the
5 W.P. No.6432/2016

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
proceedings, 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 to the Court to be
reasonable. The word “no independent income” is used in
Section 24 of the Act. She has to plead and prove that the
income which she is receiving is not sufficient for her to
support her and meeting out the expenses of the
proceedings. In the application filed u/s. 24 of the Act,
there is absolutely no averment, rather she has falsely
stated that she is having no source of income, whereas, the
petitioner has successfully proved that she has sufficient
income and property. Provisions of Section 24 has been
made in the Act in order to support the wife or the
husband, as the case may be, having no independent
income to support and to contest the case. The order u/s.
24 of the Act cannot be passed mechanically because the
word which is used is “it appears to the Court”, the Court
has to record its satisfaction that there is no independent
income to support the wife or husband. The learned Family
Court has passed the order mechanically by reducing the
amount of Rs.5,000/- to Rs.4,000/- without there being any
pleading and proof in the application u/s. 24 of the Act.

9. In view of the above, the impugned order dated
15.7.2016 deserves to be and is hereby set aside so far as
6 W.P. No.6432/2016

payment of maintenance @ Rs.4,000/- per month is
concerned. At this stage, the learned counsel for the
petitioner submitted that the petitioner is ready to pay the
litigation charges and the travelling expenses to the
respondent, as directed by the learned Family Court.

10. With the aforesaid, this petition stands partly
allowed to the extent indicated above. No order as to costs.

( VIVEK RUSIA )
JUDGE
alok
Digitally signed by Alok Gargav
Date: 2018.03.16 16:30:59 +05’30’

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