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Judgments of Supreme Court of India and High Courts

Shri. Avinash Rajendra Rasal vs Sou. Jyoti Avinash Rasal on 4 March, 2020

1/4 8 WP 2169-2020.doc

IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 2169 OF 2020

Avinash Rajendra Rasal .. Petitioner
Versus
Jyoti Avinash Rasal .. Respondent


Mr. Prasad P. Kulkarni for the petitioner.

CORAM: BHARATI DANGRE, J.

DATED : 4th MARCH 2020

P.C:-

1 The Writ Petition raises two- fold objection. The first
being that an order has been passed granting maintenance to a
minor child on an application preferred under Section 24 of the
Hindu Marriage Act, 1955. The second count on which the
impugned order is challenged is that by the said order, the
responsibility to maintain the child has been fastened only on the
petitioner husband and in particular where according the case of
the respondent she also has an earning source. It is the case of the
petitioner that she should equally share the responsibility to
maintain the minor child.

2 Both the contentions raised in the petition deserve an
outright rejection. The first contention about an application
being filed under Section 24 of the Hindu Adoption and

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Maintenance Act, on perusal of the application, it is not in
dispute that the caption of the said application is “Interim
Application under Section 24 of the Hindu Adoption and
Maintenance Act”. Reading of the application and the prayer
made therein would clearly divulge that the application seeks
maintenance amount for the minor child and the necessary
details of the applicant’s earnings as well as the earnings of the
respondent are to be found therein.

3 A specific averment is made to the effect that the
child born out of the wedlock is a responsibility of the parents and
presently with the amount of salary which she is fetching and
pertinent to note that she has admitted that she has an earning
capacity, a prayer is made that some responsibility must be
fastened on the respondent and therefore, maintenance of
Rs.10,000/- is claimed.

4 The said application is responded to by filing the
affidavit by the present petitioner and he avers that the applicant
is working as “Forest Guard” and this yields her a salary/income
of Rs.25,000/- to Rs.30,000/- and she should also share the
responsibility of maintaining the child.

5 The application resulted in passing of the impugned
order. The Court has passed the said order on the application
which was inadvertently captioned as one under “Section 24 of

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the Hindu Adoption and Maintenance Act, 1955″. Pertinent to
note that Section 24 of the Hindu Marriage Act, 1955 provide for
“Maintenance pendent lite” expenses of proceedings” and
necessarily involve the maintenance pendent lite claim and paid
to the wife or the husband. Section 26 of the said Act contain a
provision for custody of children and the said section enumerate
that in any proceedings instituted under the Act of 1955, the
Court is empowered to pass such interim orders and make such
provision in the decree as it deem fit with respect to the custody,
maintenance and education of minor children.

6 The purport of Section 26 being to empower the
Court to pass interim orders as well as final orders for the
maintenance of the child is obvious.

7 The application which is merely titled as the one
under Section 24, on its perusal contain all the ingredients of the
application under Section 26 and even the relief sought pertain to
the power of the Court under Section 26. It is a settled position
of law that mere non-mentioning of a provision of law or
mentioning an erroneous provision of law though rightly
invoking the jurisdiction of a Court which is empowered to
exercise its power under a particular statute would not render an
order passed by such a competent Court ineffective. It is on this
premise and the position of law the first objection deserves a
rejection.

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8 As far as the second contention as regards the amount

of maintenance of Rs.3,000/- which the petitioner has been
directed to pay for the maintenance of the minor child, suffice it
to note that the petitioner is working as an Assistant Teacher and
taking into consideration his earning capacity and also giving due
weightage to the earning capacity of the respondent wife who is
serving as a Forest Guard, the Civil Judge Junior Division, by the
impugned order has directed the petitioner to bear the financial
responsibility to the extent of Rs.3,000/- and contribute to the
amount required for maintaining the child. It is not in dispute
that the minor child Atharva is residing with the mother. A small
child of three years obviously cannot be maintained and catered
to at a meager amount of Rs.3,000/-. The wife necessarily has to
contribute from her share of income in upbringing the child. In
any contingency, the petitioner cannot be absolved of his
responsibility of contributing financially in the upbringing of the
child Atharva, if not he is catering to the emotional need of the
child.

9 The impugned order being impeccable not suffering
from any infirmity, deserve to be upheld. Resultantly, the Writ
Petition is dismissed.

SMT. BHARATI DANGRE, J

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