233 FAO-M-162-2017 with
CM-14363-CII-2017 CMM-89-2017
KIRTI KHANNA
V/S
DEEPAK VERMA
Present: Mr. Anil Chawla, Advocate, for the appellant.
Mr. Sourabh Goel, Advocate, for the respondent.
*****
Respondent-husband had obtained a decree for nullity of
marriage under Sections 11 and 12 of the Hindu Marriage Act on the claim
that the appellant was already married at the time of marriage on
09.06.2010. Aggrieved against the judgment and decree, the appellant-wife
has preferred the appeal.
During pendency of the appeal, the appellant-wife has filed an
application under Section 24 of the Hindu Marriage Act. It is averred in the
application that the appellant-wife has got no source of income whereas the
respondent-husband is man of means and doing the business of goldsmith in
his own showroom at Amritsar and earning more than Rs.1 lac per month.
Besides this, he is owner of other moveable and immovable properties, as
such she claims maintenance pendente lite at the rate of Rs.50,000/- per
month.
On notice having been issued to the respondent-husband, he
has contested the application. Respondent-husband, present in person, has
submitted that no doubt he was earlier working as a goldsmith and doing
business with his father but now he has left the said business and at present
he is residing in the dera of Radha Swami at Beas for the last three months.
However, he admits that on account of parties have patched up their
differences with the intervention of the mediation, he had started staying
with the appellant-wife subject to the condition that he will continue to
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deposit sum of Rs.5000/- per month but he claims that on account of she
having left his company, he has stopped paying that amount and that she is
not entitled to any maintenance pendente lite.
We have considered the facts and circumstances of the case and
are of the opinion that it is the statutory obligation of the respondent-
husband to maintain the appellant-wife even during pendency of
matrimonial litigation between them. The capability and capacity of the
able-bodied respondent-husband to earn money is not controversial. He
being an able bodied person is capable of earning. He admitted that he had
earlier been doing the business of goldsmith and three months prior from
today he had been working and paying sum of Rs.5000/- to the appellant-
wife when attempt was made for bringing about reconciliation. He has
expressed his inability, in view of above circumstances, to pay any
maintenance pendente lite or litigation expenses to the wife as of now.
Counsel for the respondent-husband, in support of respondent,
has submitted that a sum of Rs.5000/- was paid towards the household
expenses under an agreement. He relies upon judgment of the Supreme
Court in Yamunabai Anantrao Adhav Vs. Anantrao Shivram Adhav, 1988
(1) R.C.R. (Criminal) 322, wherein a second wife claiming maintenance
had been held to be not entitled for the same as the marriage would be a
nullity. The marriage being a nullity is subjudice before this Court. As per
the wording of Section 24 of the Hindu Marriage Act, a wife is entitled to
interim maintenance “in any proceedings” pending between the parties
under the Hindu Marriage Act as such the judgment cited by counsel for the
respondent is not absolutely applicable to the facts of present case.
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Counsel for the appellant-wife, at this stage relies upon
judgment of the Single Bench of this Court in Manjeet Singh Vs. Parson
Kaur, 1990 (2) PLR 97 wherein such application had been dismissed
relying upon the judgment in Yamunabai Anantrao Adhav’s case (supra)
which judgment has been held to be not applicable in view of the statutory
right arising in favour of a spouse in any proceedings pending under the
Hindu Marriage Act. The said judgment of the Single Bench does not lay
down an absolute rule of law and is not applicable to the rights of the
parties.
We, in above circumstances, hold that the appellant-wife is
entitled to maintenance pendente lite under Section 24 of the Hindu
Marriage Act.
It cannot be believed that an able bodied person who is
technically expert in jewellery making in the present time would not be able
to earn anything especially when he has got a family business of jewellery
making. The husband cannot be permitted to adopt an evasive approach and
run away from his responsibilities by raising a claim that he has started
living in some Dera.
Our attention has been drawn by counsel for the appellant-wife
to the fact that application under Section 24 of the Hindu Marriage Act was
dismissed by the trial Court but the High Court in Civil Revision No.592-
2015 awarded a sum of Rs.7500/- per month.
Taking into consideration the fact that the respondent-husband
has expressed inability on account of his earning capacity having been
reduced, we deem it appropriate, in the interest of justice, to grant
maintenance pendente lite @ Rs.5000/- per month to the wife.
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Application under Section 24 of the Hindu Marriage Act is
allowed. It is ordered that the respondent-husband will pay a sum of
Rs.5,000/- per month as maintenance pendente lite to the appellant-wife
with effect from the date of application i.e. May, 2017. It is made clear that
the amount paid by the respondent-husband during the process of mediation
proceedings for a period of three months, will be deductible while
calculating the amount due towards the maintenance pendente lite.
Litigation expenses are assessed as Rs.30,000/-. A sum of Rs.20,000/-
earlier paid towards the litigation expenses, will be deductible from the said
amount.
For payment of entire arrears of maintenance pendente lite
calculated till 31.07.2018 and balance of litigation expenses, adjourned to
23.07.2018.
Counsel for the respondent-husband submits that there are still
chances of amicable settlement by mediation.
Let both the parties again appear before the Mediation and
Conciliation Centre of Punjab and Haryana High Court, Chandigarh on
23.05.2018, on which date, 50% of the amount due towards the maintenance
pendente lite will be paid to the appellant-wife.
For awaiting the report of Mediation Centre, to come up on the
date fixed.
(M.M.S. BEDI)
JUDGE
May 10, 2018. (HARI PAL VERMA)
harsha JUDGE
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