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Ghanshyam Jangid vs Shushma Royal on 17 October, 2019

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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