217 CMM-209-2017 in FAO-7162-2016
GURDEEP SINGH V/S KULWINDER KAUR
Present: Mr. Vipin Mahajan, Advocate for the appellant.
Mr. Uday Jain, Advocate for Mr. V.K. Shukla, Advocate
for the respondent.
Aggrieved by the dismissal of his petition for divorce vide
judgment and decree dated 29.03.2016, appellant-husband has filed an
appeal, which has been admitted for hearing.
During pendency of the appeal, an application under
Section 24 of the Hindu Marriage Act, 1955 has been filed by the
respondent-wife claiming that she has got no source of income and she
has to maintain herself and a minor son born out of the wedlock. The
appellant/husband is working as Supervisor in Star Paper Mills,
Saharanpur and earning a sum of ` 50,000/- per month.
The allegations have been denied by non-applicant-
appellant/husband, claiming that his salary is only ` 24,898/- per month.
It has also been brought to our notice that he is paying a sum of ` 2500/-
to the applicant-respondent/wife, ` 2,000/- to the minor child, besides
paying a sum of `2,000/- per month towards the residential expenses,
under the directions in proceedings under the Prevention of Women
from Domestic Violence Act. In view of `6,500/- being already paid,
pursuant to the orders passed by the Judicial Magistrate in the
proceedings as mentioned hereinbefore, it is claimed that the application
deserves to be dismissed.
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We have considered the facts and circumstances of the case.
The gross income of the non-applicant-appellant/husband is around
`27,000/- per month whereas the respondent-wife is not shown to be
earning anything. However, it is averred that she is earning a sum of
`10,000/- per month.
We have considered the rival contentions of counsel for
both the parties and are of the opinion that even if it is presumed that the
applicant-wife is compelled to take up the job of a Teacher in a private
school, in peculiar circumstances, she cannot be denied the maintenance
pendente lite. Counsel for the applicant-wife has submitted that at
present, she is not in any job and has got no source of income. Since the
applicant-respondent/wife is shouldering the responsibility of looking
after the minor child born out of the wedlock, alone, which is the
obligation of both the parents, she is entitled to some compensation for
that also. Even if, it is presumed that she had been working for some
period, her right to claim maintenance pendente lite, cannot be
jeopardized. However, she can be granted lesser amount of maintenance.
In the present case, taking into consideration, the totality of
circumstances, we are of the opinion that a sum of ` 9,000/- which is
approximately 1/3rd of the income of the non-applicant/appellant-
husband, would be sufficient enough to prevent the applicant-wife and
her son from starving in the present situation of hiking prices.
Accordingly, the maintenance pendente lite is fixed as ` 9,000/- per
month payable from the date of application i.e. December, 2017. It is
made clear that sum of `6500/- being paid, pursuant to the orders passed
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by the Judicial Magistrate in proceedings under the Prevention of
Women from Domestic Violence Act, would be deductible from this
amount. A sum of ` 30,000/- is awarded as litigation expenses.
`20,000/- which has earlier been paid by the appellant-husband to the
respondent-wife towards interim litigation expenses would be deductible
from ` 30,000/- assessed today.
The application (CMM-209-2017) under Section 24 of the
Hindu Marriage Act is allowed in the above said terms.
At this stage, counsel for the appellant-husband has
submitted that on account of differences, which have erupted between
the parties on account of long separation, he is ready to even part with a
house for maintenance of the respondent-wife. The bona fide of the
statement is doubted by the counsel for the respondent-wife. He seeks
time to get instructions from his client by the next date of hearing.
For payment of the arrears of maintenance pendente lite,
now to come up on 30.11.2018 without prejudice to the rights of the
parties to enter into any settlement.
Counsel for the appellant-husband may arrange a residential
house for her in the meanwhile.
(ANUPINDER SINGH GREWAL)
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