217 FAO-2672-2016 and CMM-137-2017
Present: Mr. Sanjay Vij, Advocate, for the appellant.
Mr. Sanjay Verma, Advocate, for the respondent.
Aspiring to get a decree of divorce from his wife, the appellant-
husband preferred a petition under Section 13 of the Hindu Marriage Act
which has been dismissed by the District Judge, Family Court, Gurgaon.
Aggrieved by the said order, the appellant-husband has preferred this
During pendency of the appeal, the respondent-wife has filed
an application under Section 24 of the Hindu Marriage Act claiming that
she is unable to earn whereas the appellant-husband is serving as Implement
Engineer in Kutons Company, Gurgaon and had been getting salary of
Rs.28,000/- per month. He also owns a house in Chandigarh in the name of
his mother and a three storey house having basement in Gurgaon. He is
alleged to have rental income of Rs. 1 lac per month. It is averred that his
father is a Govt. employee posted as Section Officer in Army HQ Railway,
New Delhi. As such, the respondent-wife claims maintenance pendente lite
@ Rs.25,000/- besides litigation expenses.
Application has been opposed by the appellant-husband by
filing a detailed reply to the effect that he is at present unemployed and that
he is paying a sum of Rs.10,000/- to the respondent-wife as well as daughter
in proceedings under Section 125 Cr.P.C. It has also been alleged that a
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sum of Rs.7000/- per month has been ordered as financial help in
proceedings under the Protection of Women from Domestic Violence Act.
Vide order dated 22.08.2017, a sum of Rs.7000/- has been
ordered to be paid as financial help by the Magistrate and a sum of
Rs.10,000/- for the wife and the minor daughter (Rs.5,000/- each) has been
awarded by the learned Magistrate in proceedings under Section 125
It has been informed that a sum of Rs.7,000/- awarded by the
Court under the Protection of Women from Domestic Violence Act, is not
being paid and that the appeal is also pending for enhancement of the said
amount. It is also a fact that a sum of Rs.10,000/- per month i.e. Rs.5,000/-
for the wife and Rs.5,000/- for the minor daughter stand awarded in
proceedings under Section 125 Cr.P.C.
On asking of the Court, it has been informed that a sum of
Rs.10,000/- per month is regularly paid as determined in proceedings under
Section 125 Cr.P.C. A sum of Rs.7,000/- as ordered towards the
maintenance as determined by the Court under the Protection of Women
from Domestic Violence Act, is not being paid.
Considering the totality of the circumstances, we are of the
opinion that it is bounden duty of the appellant-husband to ensure the
maintenance of the wife during pendency of the proceedings under the
Hindu Marriage Act in order to sustain herself. In the present case, the
minor daughter is also staying with the respondent. She is bearing the
responsibility of both the parties by maintaining her as such she is entitled
to be compensated in the shape of maintenance for herself and for the minor
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We have considered the contention of learned counsel for the
appellant that the Company for which the appellant-husband was working
stands wound up and he is jobless.
It is not disputed that the appellant-husband is an engineer and
is a technocrat. Being a technical expert with technical education to his
credit, he is expected to earn at least sum of Rs.25,000/- to Rs.30,000/- per
Presuming that being an able bodied technical expert person,
the appellant is capable of earning bare minimum of Rs.30,000/-, we deem it
appropriate, in the interest of justice, to grant maintenance pendente lite @
Rs.18,000/- per month to the respondent-wife. It is made clear that a sum of
Rs.10,000/- awarded in proceedings under Section 125 Cr.P.C is liable to be
adjusted against the amount awarded by this Court.
In case amount of Rs.7,000/- per month as assessed by the
Court under the Protection of Women from Domestic Violence Act, stands
already paid, it will be adjustable and would not be required to be paid.
The amount of maintenance will be paid with effect from the
date of application i.e. September, 2017.
Besides assessing the maintenance pendente lite @ Rs.18,000/-
per month as mentioned hereinabove, a sum of Rs.25,000/- is assessed as
litigation expenses. A sum of Rs.20,000/- already paid towards interim
litigation expenses will be deductible from the amount assessed.
Application under Section 24 of the Hindu Marriage Act is
allowed, in above manner.
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For payment of entire arrears of maintenance calculated upto
31.03.2018 and balance of litigation expenses, to come up on 20.03.2018.
Record of lower Court has been received.
Appeal will be fixed for final hearing after clearance of entire
arrears of maintenance and balance of litigation expenses.
December 21, 2017. (AUGUSTINE GEORGE MASIH)
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