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Harendra Kumar vs Vijay Laxmi on 8 July, 2019

D.B. Civil Misc. Appeal No. 1494/2019

Harendra Kumar S/o Shri Bhanwar Lal, Aged About 40 Years, B/c
Kumhar, R/o Degana Tehsil Degana, District Nagaur.

Vijay Laxmi W/o Harendra Kumar, D/o Shri Bhanwar Lal, B/c
Kumhar, R/o Degana at Present Chankya Nagar, Lal Sagar,


For Appellant(s) : Mr. R.S.Choudhary




1. This appeal is directed against order dated 30.4.19 passed

by the Family Court No.1, Jodhpur, in Civil Original Case

No.730/17, whereby an application preferred by the respondent

u/s 24 and 26 of the SectionHindu Marriage Act, 1955( in short “the Act

of 1955”) has been allowed and the appellant has been directed to

pay a sum of Rs.10,000/- per month as maintenance pendente lite

to the respondent-wife and Rs.5,000/- each for her three children

i.e. two daughters and a son and further to pay a sum of

Rs.5000/- in lump sum as litigation expenses.

2. Learned counsel for the appellant submitted that the

respondent has independent income sufficient for her support and

necessary expenses of the proceeding yet the Family Court

without there being any documentary evidence regarding income

of the appellant, has passed the order directing appellant to pay

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the maintenance to the respondent to the tune of Rs.25,000/- per

month. Learned counsel submitted that the respondent filed an

application under Section 12 of Protection of Women from

SectionDomestic Violence Act,2005 (for short “the Act 2005”) of before

the Metropolitan Magistrate No.5, Jodhpur Metropolitan and the

learned Magistrate directed payment of maintenance of Rs.5,000/-

per month, which was enhanced to Rs.15,000/- per month by the

Sessions Judge, Jodhpur Metropolitan, however, on a

miscellaneous petition being filed, this court while disposing of the

petition directed the trial court to decide the application under

Section 12 of the Act of 2005 and the appellant has been directed

to pay the maintenance Rs.5,000/- per month as directed by the

trial court and thus, the maintenance to the tune of Rs.25,000/-

awarded by the Family Court is highly excessive and deserves to

be set aside.

3. Indisputably, the purpose behind Section 24 of the Act is to

provide necessary financial assistance to the party to the

matrimonial dispute who has no sufficient means to maintain

himself/herself 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


4. No hard and fast rule can be laid down for determination of

the amount of interim maintenance under Section 24 of the Act.

Though, the appellant has attempted to project that he is an

employee in Sharda Mahila College but the documents on record

apparently show that the appellant is the Managing Director of the

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said College. As observed by the Family Court, this fact is

admitted by the appellant in his application filed under Section 9

of the Act and thus, the conclusion drawn by the Family Court

regarding the appellant having sound financial status cannot be

faulted with. It is pertinent to note that the respondent-wife has

responsibility to upbring three children, out of them, two are

studying in the middle school. Thus, taking into consideration the

totality of the facts and circumstances of the case, the interim

maintenance payable to the respondent determined by the Family

Court as aforesaid cannot be said to be excessive. In the

proceeding under the Act of 2005, the monthly maintenance being

awarded as Rs.5,000/- per month has no bearing in the matter

inasmuch as, the yardstick for determination of interim

maintenance under Section 24 is absolutely different. Moreover,

the Family Court has specifically observed that if the respondent is

receiving the amount of maintenance in any other proceeding, the

same shall be adjusted in the amount payable under the order


5. For the aforementioned reasons, in considered opinion of this

court, the order impugned passed by the Family Court does not

suffer from any illegality or irregularity warranting interference by

this court in exercise of its appellate jurisdiction.

6. The appeal is dismissed accordingly.


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