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Harishankar Dhakad vs Sushila on 21 October, 2019

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
D.B. Civil Misc. Appeal No. 977/2019

Harishankar Dhakad S/o Shri Balu Dhakad, Aged About 49 Years,
R/o Papadbad, Police Station Bijoliya, District Bhilwara.

—-Appellant
Versus
Sushila W/o Shri Hari Shankar Dhakad, D/o Shri Kajod Dhakad,
R/o Papadbad, Police Station Bijoliya, Presently Residing At
Amritpuriya, Police Station Bijoliya, District Bhilwara.

—-Respondent

For Appellant(s) : Mr. Ramesh Purohit

HON’BLE MR. JUSTICE SANGEET LODHA
HON’BLE MR. JUSTICE VINIT KUMAR MATHUR

Judgment

21/10/2019

1. This appeal is filed by the appellant assailing the legality of

the order dated 5.3.19 passed by the Family Court, Bhilwara in

Civil Case No.55/17, 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 a sum of Rs.5,000/- per

month to the respondent. The appellant has also questioned

legality of yet another order dated 5.3.19 passed by the Family

Court, whereby the application preferred by him under Order XXVI

Rule 10A seeking direction for DNA test of the child alleged to have

been born out of the wedlock between the appellant and the

respondent, has been dismissed.

2. The appellant filed a petition against the respondent for

restitution of conjugal rights under Section 9 of the Act of 1955.

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During the pendency of the petition, the respondent filed an

application under Section 24 of the Act of 1955, claiming

maintenance pendente lite from the appellant a sum of

Rs.15,000/- per month and Rs.750/- towards ‘to and fro’ expenses

to attend each date of hearing. The respondent averred in the

application that she has no source of income whereas, the

respondent is employed as Teacher Gr.II and earning monthly

salary Rs.40,000/- per month. That apart, he is having joint

khatedari land measuring 31.7 bighas, wherefrom he is earning

Rs.30,000/- per month.

3. After due consideration of the rival submissions, the Family

Court determined the maintenance pendente lite payable by the

appellant to the respondent as Rs.5,000/- per month.

4. At the outset, learned counsel appearing for the appellant

submitted that the appellant does not want to press the appeal

against the order dated 5.3.19 rejecting the application preferred

under Order XXVI Rule 10A read with Section 151 CPC with liberty

to avail the appropriate remedy.

5. Arguing the appeal against the order awarding maintenance,

learned counsel appearing for the appellant contended that the

appellant never entered into marriage with the respondent and

thus, the provisions of Section 24 of the Act of 1955 which

provides right to claim maintenance to the spouse is not attracted

in the matter. Learned counsel submitted that the appellant’s

marriage was solemnized with one Smt. Manju on 3.7.94 and out

of the wedlock, one son Yogesh was born on 19.5.95. Learned

counsel submitted that unless the factum of marriage between the

appellant and the respondent is established on the basis of some

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(3 of 4) [CMA-977/2019]

evidence, the directions issued by the Family Court granting

maintenance, cannot be sustained.

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.

8. It is true that the appellant has denied the factum of

marriage but the fact remains that the case set out by the

respondent is that the marriage between the parties was

solemnized in the childhood and later, out of the wedlock, a son

Kailash was born, who is presently 21 years of age. Obviously, the

issue sought to be raised regarding the solemnization of marriage

shall be decided by the Family Court on the basis of the evidence

to be led by the parties at the time of final decision of the petition

seeking restitution of conjugal rights filed on behalf of the

respondent. At this stage, on account of the factum of marriage

being disputed by the appellant, the application seeking

maintenance could not have been rejected by the Family Court.

9. It is pertinent to note that the appellant has not disputed the

factum of his being employed as Teacher Gr.II and having joint

khatedari land of 31.7 bighas. Admittedly, nothing was brought on

record to show that the respondent has her own source of income.

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10. Thus, on the facts and the circumstances of the case, the

order impugned passed by the Family Court determining a meagre

amount of Rs.5,000/- as maintenance pendente lite payable to the

respondent by the appellant cannot be said to be excessive so as

to warrant interference by us in exercise of appellate jurisdiction.

11. The appeal is therefore, dismissed.

(VINIT KUMAR MATHUR),J (SANGEET LODHA),J
35-Aditya/-

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