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Fao(Hma) No. 281 Of 2018 vs Mr. Vijay Chaudhary on 8 October, 2018

FAO(HMA) No. 281 of 2018

.

8.10.2018 Present: Mr. N.K. Thakur, Senior Advocate with Mr. Divya
Raj Singh, Advocate, for the appellant.

Mr. Vijay Chaudhary, Advocate, for the
respondent.

FAO(HMA) No. 281 of 2018

Mr. N.K. Thakur, learned Senior Advocate appearing

for the appellant, under instructions, states that there appears

to be no possibility of amicable settlement inter se parties, at

this stage, as such, matter may be heard and decided on merits.

2. Admit.

3. Be listed for final hearing in the first week of

January, 2018, as jointly prayed for by the learned counsel

representing the parties.

CMP No. 6367 of 2018

4. By way of instant application filed under S. 24 of the

Hindu Marriage Act, prayer has been made for grant of

maintenance pendente lite/expenses of litigation. Reply to the

application stands filed by the respondent.

5. It is not in dispute that the appellant was getting a

sum of `3,000/- per month on account of grant of maintenance

pendente lite/expenses of litigation, while case was pending

before the learned District Judge, Chamba.

6. Mr. Vijay Chaudhary, learned counsel representing

the respondent, while inviting attention of this Court to the

income certificate dated 21.7.2018 (Annexure R-2), stated that

the annual income of the respondent is `67,000/- and out of

which he is already paying `2,400/- per month to the

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respondent, on account of maintenance awarded to her in the

.

proceedings initiated by her under S. 125 CrPC. Mr. Chaudhary,

further stated that it is a matter of record that appellant is

getting a sum of `6,300/- per month on account of services

being rendered by her as Tailoring Teacher in Gram Panchayat

Diyola, which fact has been seriously disputed by Mr. N.K.

Thakur, learned Senior Advocate appearing for the appellant.

7. Mr. N.K. Thakur, learned Senior Advocate, while

inviting attention of this court to Annexure R-1, annexed to the

reply to application having been filed by the respondent, stated

that the appellant is only getting a meager salary of `2,000/-,

which is not sufficient for her maintenance. He further stated

that the appellant is also having one daughter and as such,

amount of `2,400/- per month awarded in the proceedings

under S. 125 CrPC is not sufficient, as such, she deserves to be

granted a sum of `10,000/- per month, as maintenance

pendente lite, during the pendency of the appeal at hand.

8. S. 24 of the Hindu Marriage Act clearly provides that

a spouse, who has no independent income sufficient for his/her

support, may apply to court seeking direction to the respondent

to pay monthly maintenance as court may find reasonable.

Though aforesaid provision of law clearly suggests that power to

grant maintenance pendente lite and expenses of litigation is

discretionary but the guidelines provided under aforesaid

provision of law cast a duty upon the court to give due regard to

the income of the respondent and petitioner’s own income, while

acceding to the request, if any, for grant of maintenance

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pendente lite and expenses in the proceedings under
S. 24 of the

.

Act ibid.

9. Reliance is placed upon judgment of Hon’ble Apex

Court in Neeta Rakesh Jain v. Rakesh Jeetmal Jain (2010) 12

SCC 242, wherein it has been held as under:

“8. Section 24 of the Act makes a provision for maintenance

pendent lite and expenses of proceedings. It reads thus:-

“S.24.- Maintenance pendent 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.

Provided that the application for the payment of the expenses of

the proceeding and such monthly sum during the proceeding,
shall, as far as possible, be disposed of within sixty days from

the date of service of notice on the wife or the husband, as the
case may be.”

9. 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
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.”

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10. It is quite apparent from a bare reading of the

.

provisions contained under S. 24 of the Act as well as law laid

down by the Hon’ble Apex Court (supra) taken note herein above

that spouse having no independent income can always seek

maintenance pendente lite and expenses of litigation during

pendency of the proceedings.

11. In the case at hand, documents annexed to the reply

and application, suggest that appellant is in receipt of a sum of

`2000/- on account of services being rendered by her as

Tailoring Teacher under Gram Panchayat Diyola. Though

specific assertion has been made in the reply to the application

that appellant is getting a sum of `6300/- per month on account

of her services as Tailoring Teacher under the Gram Panchayat

but no documentary evidence has been led on record to

substantiate aforesaid fact. Similarly, maintenance, if any,

granted under S. 125 CrPC, can not be a ground to deny

maintenance pendente lite and expenses of litigation under S. 24

of the Hindu Marriage Act, which is altogether an independent

provision specifically provided under the Hindu Marriage Act, to

ensure that spouse having no independent income is not left to

starve.

12. It is also not in dispute that the appellant is having

a minor daughter and as such, amount of `2,400/- per month

awarded under S. 125 CrPC can not be said to be sufficient

amount for the petitioner to maintain herself as well as her

daughter, but at the same time, this court can not lose sight of

the fact that annual income of the respondent is `67,000/- and

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he has parents to support, as such, this court deems it fit to

.

grant a sum of `3,500/- per month on account of maintenance

pendente lite. Respondent is also directed to pay `4,000/- as

expenses of litigation. The maintenance pendente lite shall be

payable from the date of filing of the application i.e. May, 2018

and arrears thereof shall be paid within four weeks from today,

with the learned trial Court. Application is disposed of.

Copy dasti.

(Sandeep Sharma)
Judge
October 8, 2018
(Vikrant)

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