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Neeraj Singh vs Ankita Singh on 22 January, 2019

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
D.B. Civil Misc. Appeal No. 1934/2018

Neeraj Singh S/o Chandrashekhar Singh, Aged About 34 Years,
B/c Rajput, R/o Adarsh Nagar, Kapasan, District Chittorgarh.

—-Appellant
Versus
Ankita Singh W/o Neeraj Singh, D/o Late Shri Ajaypal Singh, B/c
Rajput, R/o Mandalgarh, District Bhilwara.

—-Respondent

For Appellant(s) : Mr. JVS Deora
For Respondent(s) : Mr. N.K.Rastogi

HON’BLE MR. JUSTICE SANGEET LODHA
HON’BLE MR. JUSTICE DINESH MEHTA

Judgment

22/01/2019

1. This appeal is directed against order dated 23.3.18 passed

by the Family Court, Bhilwara, directing the appellant to pay

maintenance pendente lite a sum of Rs.10,000/- to the

respondent for herself and Rs.5,000/- for her minor daughter.

That apart, the appellant has been directed to pay a sum of

Rs.21,000/- towards the litigation expenses and further a sum of

Rs.500/- for expenses on each date of hearing.

2. The facts relevant are that during the pendency of the

proceedings between the parties under Section 9 of Hindu

Marriage Act, 1955 (for short “the Act”), the respondent-wife

preferred an application under Section 24 of the Act claiming

maintenance pendente lite a sum of Rs.20,000/- per month

stating that the appellant employed as Teacher in Panchayat
(2 of 4) [CMA-1934/2018]

Samiti, Bhadesar is drawing monthly salary a sum of Rs.30,000/-.

The application was contested by the appellant stating that as a

matter of fact he is drawing honorarium of Rs.6,000/- only. In this

regard, the respondent placed on record copy of the order dated

20.5.17 issued by the Gram Panchayat, Leswa, Panchayat Samiti,

Bhadesar. The Family Court while observing that during the course

of argument, it is revealed that elder brother and sister in law of

the respondent herein run a school wherein the appellant is

member of Management Committee and thus, it would not be

appropriate to accept that his monthly income is only Rs.6,000/-

and proceeded to entitlement of the appellant for maintenance as

aforesaid. Hence, this appeal.

3. Learned counsel appearing for the appellant contended that

the Family Court has failed to consider the provisions of Section

24 of the Act in correct perspective. It is submitted that the

finding recorded by the Family Court regarding the appellant’s

source of income on the basis of assumption and presumption is

ex facie erroneous. Learned counsel submitted that no facts were

brought on record regarding the school being run by the

respondent’s brother and the appellant having any pecuniary

interest therein yet, on the basis of whatever stated by the

respondent during the course of arguments, the finding recorded

by the Family Court is ex facie perverse.

4. On the other hand, the counsel appearing for the respondent

submitted that the appellant is employed as Teacher in the

Panchayat Samiti and as a matter of fact, drawing salary a sum of

Rs.30,000/- and thus, the amount of maintenance as determined

by the Family Court for the respondent herself and her minor
(3 of 4) [CMA-1934/2018]

child, cannot be said to be excessive so as to warrant interference

by this court. Learned counsel submitted that the appellant being

member of the Management Committee of the school run by his

brother, the presumption regarding he having a reasonable income

therefrom cannot be faulted with.

5. I have considered the rival submissions and perused the

material on record.

6. Indisputably, in the application filed, the appellant employed

as Teacher in the Panchayat Samiti, Bhadesar is drawing a salary

of Rs.30,000/- per month. Admittedly, no proof whatsoever was

produced by the respondent before the Family Court regarding the

appellant’s monthly salary. To the contrary, the appellant had

placed on record the order issued by his employer showing that he

was drawing honorarium of Rs.6,000/- per month only. It was not

the case set out in the application by the respondent that the

appellant has yet another source of income i.e. from the school

run by her brother wherein the appellant is member of

Management Committee. In the considered opinion of this court,

solely on the basis of the submissions made by the respondent

during the course of hearing, the Family Court has seriously erred

in holding that it would not be justified to accept the monthly

income of the appellant as Rs.6,000/- per month.

7. Apparently, the purpose behind Section 24 of the Act is to

provide necessary financial assistance to the party to the

matrimonial dispute who has no sufficient means to maintain

himself/herself or to bear the expenses of the proceedings. But

then, while determining the amount of maintenance payable to

the spouse who is unable to maintain himself/herself , the income
(4 of 4) [CMA-1934/2018]

of the spouse found to be liable for payment of maintenance must

be assessed on the basis of the material on record. In the instant

case, in the considered opinion of this court, the Family Court has

seriously erred in awarding maintenance to the respondent as

aforesaid without first quantifying the income of the appellant

appropriately while taking into consideration the material on

record.

8. In this view of the matter, the matter deserves to be

remanded to the Family Court to pass an appropriate order afresh

after assessing the income of the appellant on the basis of the

material on record.

9. Accordingly, the appeal is allowed. The order impugned

dated 23.3.18 is set aside. The matter is remanded to the Family

Court, Bhilwara for decision afresh, after due consideration of the

material on record. The parties shall be at liberty to place

additional material, if any, on record, for the purpose of just

determination of the maintenance payable.

(DINESH MEHTA),J (SANGEET LODHA),J
22-Aditya/-

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