HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
D.B. Civil Misc. Appeal No. 749/2019
Ghanshyam Jangid S/o Shri Gopal Ram, Aged About 31 Years,
B/c Suthar, At Present R/o B/47, First Extension, Kamla Nehru
Nagar, Jodhpur.
—-Appellant
Versus
Shushma Royal W/o Shri Ghanshyam Jangid, Aged About 38
Years, D/o Shri Jawaharlal, B/c Suthar, R/o Plot No. 141,
Patrakar Colony, Sector No. 7, New Power House, Jodhpur,
Rajasthan.
—-Respondent
For Appellant(s) : Mr. Haider Aga
HON’BLE MR. JUSTICE SANGEET LODHA
HON’BLE MR. JUSTICE VINIT KUMAR MATHUR
Judgment
17/10/2019
1. This appeal is filed by the appellant assailing the legality of
the order dated 9.8.18 passed by the Family Court No.2, Jodhpur
Metropolitan in Civil Case No.21/17 (13/15), 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. The appellant has been directed to pay maintenance
pendente lite to the respondent a sum of Rs.10,000/- per month
and Rs.200/- per month as expenses for attending 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
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maintenance pendente lite from the appellant a sum of
Rs.50,000/- per month. The respondent averred in the application
that she has no source of income, whereas the appellant is
employed as doctor in All India Institute of Medical Sciences and
earning a sum of Rs. 1 lac per month as salary. That apart, the
appellant owns a factory on the Jodhpur-Pali Highway and earning
a sum of Rs.75,000/- per month as rent and has income of sum of
Rs.5 lacs per annum from the agriculture land measuring 150
bighas situated in villages Manveda and Jakhad. It was further
averred that the appellant has invested money in share market
and earning Rs.2 lacs per month.
3. The appellant contested the application by filing a reply
thereto. The factum of the appellant being employed in AIIMS as
doctor was not denied, however, it was denied that he was earning
a sum of Rs. 1 lac per month. It is averred that after compulsory
deduction, he was drawing only a sum of Rs.45,000/- per month
as salary, but now, his contract with AIIMS has come to an end.
The appellant averred that he has established his own clinic and
earning a meagre amount.
4. After due consideration of the rival submissions and material
on record, the Family Court determined the maintenance pendente
lite payable to the respondent as aforesaid. Hence, this appeal.
5. Learned counsel appearing for the appellant contended that
the appellant is no more in employment of the AIIMS and
therefore, he has no source of income from salary as alleged. It is
submitted that the appellant, a dentist, has established his own
clinic after taking loan of Rs.8 lacs from his relatives. Learned
counsel submitted that the appellant has no sufficient income. It is
submitted that the substantial amount of the appellant’s income is
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spent for treatment of ailing parents and thus, he is not in position
to give any amount as maintenance to the respondent. Learned
counsel submitted that admittedly, the respondent is preparing for
RAS exams. and thus, she being an educated woman, is in position
to earn her livelihood and therefore, cannot claim any maintenance
from the appellant.
6. We have considered the submissions of the learned counsel
and perused the material on record.
7. 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, n o hard and fast rule can
be laid down for determination of the amount of interim
maintenance.
8. Admittedly, the appellant is doctor, who was earning sufficient
income as salary while employed in the AIIMS. The appellant being
dentist, operating his own clinic, must be earning a reasonable
income which is not disclosed by him in reply to the application
filed. It is true that the income of the appellant from other sources
as pleaded was not established by any cogent evidence on record,
but on the facts and in the circumstances of the case, the
conclusion drawn by the Family Court regarding the income of the
appellant from the profession of doctor, cannot be said to be
capricious or perverse. No evidence whatsoever was produced by
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the appellant to establish that the respondent has any independent
source of income.
9. Thus, in absence of any evidence regarding the respondent
having any adequate source of income, the amount of
maintenance pendente lite determined by the Family Court does
not appear to be excessive so as to warrant any interference by us
in exercise of appellate jurisdiction.
10. The appeal is therefore, dismissed. It is made clear that the
dismissal of the appeal preferred by the appellant, shall not
preclude the respondent from filing the appeal for enhancement of
the maintenance, if so advised, or from pursuing the appeal, if any,
already filed.
(VINIT KUMAR MATHUR),J (SANGEET LODHA),J
67-Aditya/-
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