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.

(M.M.S. BEDI)
JUDGE

(ANUPINDER SINGH GREWAL)
JUDGE
14.09.2018.

SwarnjitS

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