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Mukesh vs Rekha @ Rukmani on 1 November, 2019

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
D.B. Civil Misc. Appeal No. 2648/2019

Mukesh S/o Mangalchand, Aged About 25 Years, B/c Mali, R/o
Ward No. 4, Sardarshahar, District Churu, Rajasthan

—-Appellant
Versus
Rekha @ Rukmani W/o Mukesh, D/o Kishanlal, B/c Mali, R/o
Sardarshahar At Present R/o Ward No. 33, Gaushala Bas,
Sardarshahar , District Churu, Rajasthan.

—-Respondent

For Appellant(s) : Mr. Vivek Siddh

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

Judgment

01/11/2019

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

the order dated 29.8.19 passed by the Family Court, Churu in Civil

Case No.150/17, whereby while allowing an application preferred

by the respondent under Section 24 of the Hindu Marriage Act,

1955 (for short “the Act of 1955”), the appellant is directed to pay

maintenance a sum of Rs.2,500/- per month each to the

respondent-Smt. Rekha for herself and her daughter. That apart,

the appellant is directed to pay Rs.1,000/- to the respondent for

attending each date of hearing before the Family Court.

2. The appellant filed a petition against the respondent for

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

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

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Rs.10,000/- per month for herself and her daughter; Rs.20,000/-

towards the litigation expenses and Rs.2,000/- for attending each

date of hearing. The respondent averred in the application that she

has no source of income whereas, the appellant is earning Rs.

50,000/- per month from the agriculture, sale of milk and the work

of goldsmith.

3. The appellant filed a reply to the application contending that

the respondent is operating Beauty Parlour and earning

Rs.20,000/- per month. The appellant denied that he has sources

of income as alleged by the respondent.

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

Court determined the maintenance pendente lite payable by the

appellant to the respondent for herself and her daughter at

Rs.5,000/- per month and Rs.1,000/- towards the expenses for

each date of hearing.

5. Learned counsel appearing for the appellant contended that

the respondent has deserted the appellant and therefore, she is

not entitled for any maintenance. The Family Court has seriously

erred in ignoring the fact that the respondent has her own source

of income. It is submitted that without there being any cogent

evidence regarding the appellant’s income, the maintenance

awarded by the Family Court is apparently excessive. Drawing the

attention of the court to the order dated 30.5.19 passed by the

Additional Chief Judicial Magistrate, Sardarsahar in proceeding

under Section 125 Cr.P.C., learned counsel submitted that the

competent court had already determined the maintenance payable

to the respondent and the daughter Himanshi as Rs.1500/- and

Rs.1000/- per month respectively and thus, the Family Court has

seriously erred in passing the order impugned. Learned counsel

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submitted that while awarding the maintenance as aforesaid, the

amount already being paid by the appellant as per the order

passed by the competent court in proceedings under Section 125

Cr.P.C., is not directed to be adjusted and therefore, the order

impugned deserves to be set aside for this reason also.

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. No hard and fast rule can be laid

down for determination of the amount of interim maintenance.

8. Admittedly, no evidence was brought on record by the

appellant to establish that the respondent has her own source of

income. Though, the appellant had denied the sources of income

as alleged by the respondent but it was not even the case of the

appellant that he has no source of income whatsoever. The factum

of respondent deserting the appellant cannot be a ground to deny

the maintenance pendente lite under Section 24 of the Act of

1955.

9. In the considered opinion of this court, in absence of any

evidence regarding the respondent having any adequate source of

income, the amount of maintenance pendente lite a sum of

Rs.5,000/- per month determined by the Family Court for the

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respondent and her daughter and Rs.1,000/- for attending each

date of hearing, cannot be said to be excessive so as to warrant

interference by us in exercise of appellate jurisdiction.

10. It is noticed that while passing the order dated 30.5.19 in

proceedings under Section 125 Cr.P.C., the court has specifically

observed that amount payable under the said order shall be

adjusted against the amount of maintenance determined in any

other proceedings and thus, obviously, the amount of maintenance

directed to be paid by the appellant to the respondent in

proceedings under Section 125 Cr.P.C. shall be liable to be adjusted

against the amount of maintenance payable in terms of the order

impugned.

11. For the aforementioned reasons, the appeal is devoid of any

merit, it is hereby, dismissed with the observations as above.

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

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