FAO(HMA) No. 281 of 2018
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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 itappears to the court that either the wife or the husband,
as the case may be, has no independent income sufficientfor 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’sown 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 fromthe 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
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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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