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Narveer Singh Solanki vs Vijeta Singh on 9 August, 2019

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
D.B. Civil Misc. Appeal No. 2153/2019

Narveer Singh Solanki S/o Mohan Singh Solanki, Aged 45 Years,
Resident of House No. 355 Housing Board Colony, Sirohi, District
Sirohi.

—-Appellant
Versus

1. Vijeta Singh W/o Narveer Singh Solanki, Aged 40 Years,
Resident of D-32, New I.T. Colony, Pratap Nagar, Jodhpur.

2. Divita D/o Narveer Singh Solanki, Aged About 13 Years,
Minors and Represented Through Their Mother Vijeta
Singh (Respondent No. 1) R/o D-32 New I.T. Colony,
Pratap Nagar, Jodhpur.

3. Siddhant S/o Narveer Singh Solanki, Aged 6 Years, Minors
and Represented Through their Mother Vijeta Singh
(Respondent No. 1) R/o D-32 New I.T. Colony, Pratap
Nagar, Jodhpur.

—-Respondents

For Appellant(s) : Mr. Shreyansh Mardia

HON’BLE MR. JUSTICE SANGEET LODHA
HON’BLE MR. JUSTICE P.K. LOHRA

Judgment

09/08/2019

1. This miscellaneous appeal is filed by the appellant assailing

the legality of the order dated 11.3.19 passed by the Family Court

No.2, Jodhpur in Civil Original Case No.4/16, 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.3,000/- per month each for herself and

her two children and a sum of Rs.5,000/- towards litigation

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expenses. The petitioner has also questioned legality of order

dated 11.3.19, rejecting an application preferred by the appellant

under Order XI Rule 12 CPC.

2. The appeal reported to be barred by limitation for three days

is accompanied by an application under Section 5 of Limitation Act.

For the reasons stated in the application, the same is allowed.

Delay in filing the appeal is condoned.

3. Heard learned counsel for the appellant.

4. The appellant filed a petition against the respondent for

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

before the Family Court No.2, Jodhpur. During the pendency of the

petition, the respondent filed an application under Section 24 Section26

of the Act of 1955, claiming maintenance pendente lite and

litigation expenses. The respondent averred in the application that

she has no source of income and presently, she is dependent upon

her parents. The respondent further averred that she has

responsibility of upbringing two children, a daughter and a son,

studying in Class VII and Class III in Saint Patrick Vidhya Bhawan,

Jodhpur and Saint Paul School, Jodhpur, respectively. According to

the respondent, the appellant employed as Teacher in Panchayat

Samiti, Reodar, District Sirohi, is drawing salary a sum of

Rs.38,000/- per month and his total monthly income is

Rs.50,000/- to 60,000/-. The respondent claimed maintenance

Rs.20,000/- for herself and two children and further, a sum of

Rs.25,000/- as litigation expenses and Rs.1,00,000/- towards the

expenditure already incurred by taking loan.

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5. The application was contested by the appellant by filing a

reply thereto. The appellant submitted that while working as

Teacher, after deduction, he is drawing salary only a sum of

Rs.24,994/- per month and has no other source of income. He

incurs expenditure of Rs.6,000/- per month for maintenance of his

old aged mother. The appellant claimed that respondent is

employed as Lecturer in Disha Sansthan, Jaipur and earning

Rs.30,000/- per month. The appellant filed an application under

Order XI Rule 12 14 CPC, seeking directions to the respondent to

produce her pay slip/certificate issued by Disha Sansthan, where

she is working as Lecturer. The respondent while filing a reply to

the application supported by an affidavit and denied the factum of

her being employed as Lecturer in Disha Sansthan, as claimed by

the appellant. The application was rejected by the Family Court

vide order dated 11.3.19.

6. Learned counsel appearing for the appellant submitted that

the Family Court has seriously erred in rejecting the application

preferred by the appellant under Order XI Rule 12 14 CPC on

account of same being not supported by an affidavit. Learned

counsel submitted that the factum of the respondent being

employed in Disha Sansthan was not in dispute and without there

being any evidence, the Family Court has seriously erred in

arriving at the finding that the respondent is working without any

pay. It is submitted that the respondent who had taken two

contrary stand before the Family Court, has wrongly been

extended protection under Section 24 of the Act of 1955. Learned

counsel submitted that the respondent, who is well qualified and

having her own source of income, was not entitled to claim any

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maintenance pendente lite. Learned counsel submitted that where

a spouse who has capacity of earning but chooses to remain idle is

not entitled to claim any maintenance pendente lite under Section

24 of the Act of 1955. In support of the contention, learned

counsel relied upon a decision of Delhi High Court in Criminal

Revision Petition No.344/Section11 “Damanpreet Kaur vs. Indermeet

Juneja Anr.”, decided on 14.5.12.

7. We have considered the submissions of the learned counsel

and perused the material on record.

8. Indisputably, the appellant is employed as Teacher in

Panchayat Samiti, Reodar and drawing monthly salary a sum of

Rs.41,325/-, which stands fortified from the salary certificate of

the appellant of the month April, 2019 produced on record before

the Family Court. The appellant claims that the respondent is

employed as Lecturer in Disha Sansthan, Jaipur. On the basis of

documents produced on record, the Family Court concluded that

the respondent is employed in Disha Sansthan, Jaipur however,

there was no evidence brought on record to establish that the

respondent is in permanent job and earning a reasonable income

as claimed.

9. 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

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income or inadequacy of the income to maintain at the level of

social status of other spouse.

10. Even if it is assumed for the sake of arguments that the

respondent has some source of income, it is not denied that she is

discharging the responsibility of upbringing two children, who are

studying in Class VII and Class III and thus, the appellant being

father, cannot shirk from his responsibility to maintain them as

well. It is pertinent to note that ignoring the income of the

appellant from any other source as claimed by the respondent,

admittedly, the appellant is earning a sum of Rs.41,325/- as

monthly salary while working as Teacher and thus, the amount of

maintenance determined by the Family Court, a meagre amount of

Rs.9,000/-, which is less than even 25% of the income of the

appellant, in no manner can be said to be excessive.

11. In the considered opinion of this court, taking into

consideration the total income of the appellant and the expenditure

bound to be incurred by the respondent for herself and two

children, in absence of any cogent evidence regarding the

respondent having any adequate source of income, the amount of

maintenance pendente lite determined by the Family Court

appears to be just and proper and does not warrant any

interference by us in exercise of appellate jurisdiction.

12. The appeal is therefore, dismissed in limine.

(P.K. LOHRA),J (SANGEET LODHA),J
36-Aditya/-

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