HIGH COURT OF JUDICATURE AT ALLAHABAD
Reserved on: 19.7.2019
Delivered on: 14.8.2019
Court No. – 34
Case :- FIRST APPEAL No. – 188 of 2017
Appellant :- Smt. Prabha
Respondent :- Kapil Kumar Singh
Counsel for Appellant :- Shiv Shankar Pd Gupta,S.S.P. Gupta
Counsel for Respondent :- Arun Kumar Srivastava,Abhishek Kumar Yadav,Amit Kr. Srivastava,Arun Kumar Vishvakarma,Arun Kr. Srivastava
Hon’ble Sudhir Agarwal,J.
Hon’ble Rajeev Misra,J.
(Delivered by Hon’ble Rajeev Misra,J.)
1. This is defendant’s appeal under Sectionsection 19 of Family Court Act, 1984 (hereinafter referred to as ‘Act 1984’) arising out of judgement and order dated 24.4.2015, passed by Principal Judge, Family Court, Mathura in Misc. Case No. 294 of 2010 (Smt. Prabha Vs. Kapir Kumar Singh) under Sectionsection 24 of Act 1984, in Marriage Petition No. 294 of 2010 (Kapil Kumar Singh Vs. Smt. Prabha), whereby application (paper no. 4 Ga) filed by defendant-appellant for interim maintenance has been decided to the dissatisfaction of plaintiff-appellant.
2. We have heard Mr. S.S.P. Gupta, learned counsel for defendant-appellant. Inspite of revision of cause list, no one has appeared on behalf of defendant-respondent even though names of five advocates namely, Mr. Amit Kumar Srivastava, Mr. Arun Kumar Srivastava, Mr. Abhishek Kumar Yadav, Mr. Arun Kumar Vishvakarma and Mr. Arun Kumar Srivastava are printed in cause list.
3. Plaintiff-respondent, Kapil Kumar Singh filed Marriage Petition No. 294 of 2010 (Kapil Kumar Singh Vs. Smt. Prabha) for a decree of dissolution of marriage of parties. As per plaint allegations, marriage of parties was solemnized at Central Goat Research Centre, Makhdoom Farrah, Tehsil and District Mathura on 28.2.2008. According to plaintiff-respondent, conduct of defendant-appellant was unbecoming of a wife. To the contrary her conduct towards plaintiff-respondent and his family members was full of cruelty. Consequently, the basis of suit for dissolution of marriage was cruelty which is a ground recognized in law for grant of dissolution of marriage, as per Sectionsection 13 (i) (a) of SectionHindu Marriage Act, 1955 (hereinafter referred to as ‘Act 1955’).
4. Notices were issued to defendant-appellant. She accordingly appeared in Marriage Petition No. 294 of 2010 (Kapil Kumar Singh Vs. Smt. Prabha) and filed an application dated 16.8.2011 (paper no. 4 Ga) for interim maintenance for herself and her minor child and also litigation expenses as contemplated under Sectionsection 24 of Act 1955. By means of aforesaid application, defend-appellant alleged that plaintiff-respondent is employed in R.S. Infra Project Pvt. Ltd. Greater Noida and is drawing salary to the tune of Rs. 18,000/- per month. It was further stated that plaintiff-respondent has an income of Rs. 35,000/- from Agricultural Land. Father-in-law of defend-appellant has superannuated from his services in the Irrigation Department of Government of U.P. He has received Rs. 50,000/- towards fund and gratuity. He is also getting Rs. 20,000/- per month towards pension. According to defendant-appellant, she is unemployed. The son born out of wedlock of parties is too young. No arrangement has been made by plaintiff-respondent for maintenance of his wife and minor son. As such it was prayed that defendant-appellant be awarded interim maintenance to the tune of Rs. 15,000/- and a sum of Rs. 12,000/- towards litigation expenses.
5. Plaintiff-respondent contested the application for interim maintenance (paper no. 4-Ga) filed by defendant-appellant. He accordingly, filed his objections dated 16.5.2012. According to plaintiff-respondent, all the expenses which were incurred in delivery of child were borne by plaintiff-respondent. The salary of plaintiff-respondent is Rs. 9008 and not Rs. 18,000/- as alleged by defendant-appellant. The plaintiff-respondent has no agricultural income. As plaintiff-respondent is residing separately from his father, he has no concern with finance available with father-in-law of defendant-appellant. It was also alleged that defendant-appellant is working as a teacher in Ideal Public Junior High School, Farrah Tehsil, District Mathura, from where she is getting salary at the rate of Rs. 10,000/- per month. Apart from above, defendant-appellant also earns Rs. 10,000/- from private tution. Father-in-law of plaintiff-respondent is working as Technical Officer at Central Goat Research Institute, Makhdoom Farrah, from where he is getting a salary of Rs. 50,000/- per month. Father-in-law of plaintiff-respondent also has some tenure recorded in his favour from which he earns about Rs. 2,00,000/- per annum.
6. After exchange of pleadings, Court below proceeded to decide application for interim maintenance filed by defendant-appellant. Upon evaluation of material on record, Court below concluded that as per salary bill dated 1.5.2014, salary of plaintiff-respondent is Rs. 10,603/-. From the perusal of Khatauni 1413 to 1418 Fasli, it is established that plaintiff-respondent is recorded co-tenure holder along with Balbir Singh of Khatauni Khata No. 1447 area 0.729 hectares. As such, Court below concluded that plaintiff-respondent has some tenure recorded in his favour.
7. The defence raised by plaintiff-respondent that defendant-appellant is working in an institution and drawing a salary of Rs. 10,000/- could not be established by plaintiff-respondent. Similarly, plea raised by plaintiff-respondent that defendant-appellant earns Rs.10,000/- from tuition also could not be established by him. Court below concluded that defendant-appellant has no source of income and therefore, she is unable to maintain herself and her minor child. Accordingly, Court below opined that interest of justice shall be served in case some amount towards interim maintenance is granted to defendant-appellant after deducting the amount already paid pursuant to direction issued under section 125 Cr.P.C.
8. It is pertinent to mention here that vide order dated 1.6.2012 defendant-appellant has been awarded a sum of Rs. 2000/- towards maintenance for herself and a sum of Rs. 1,200/- has been awarded to minor child of defendant-appellant. As such, a total sum of Rs. 3,200/- has been awarded. Court below, however, very curiously awarded a sum of Rs. 3,000/- towards interim maintenance for defendant-appellant and her minor son. The amount paid under Sectionsection 125 Cr.P.C. was to be adjusted. Apart from the above, a lump sum amount of Rs. 5000/- was given towards litigation expenses. With the aforesaid directions, Court below decided application for interim maintenance filed by defendant-appellant vide order dated 25.4.2015. Dissatisfied with the order dated 25.4.2015, defendant-appellant has come up in appeal before this Court.
9. Learned counsel for defendant-appellant in support of appeal has submitted that it is an undisputed fact that compensation to the tune of Rs. 3,200/- was already awarded to defendant-appellant and her minor son. However, Court below in proceedings under Section 24 of Act 1984, has awarded a sum of Rs. 3,000/- towards interim maintenance and litigation expenses, which have been quantified at Rs. 5000/-. Further, while granting benefit to defendant-appellant under Sectionsection 24 of Act 1955, Court below has also directed that amount payable under Sectionsection 125 Cr.P.C. shall be adjusted. Thus, for all practical purposes, no amount of interim maintenance has been awarded by Court below to defendant-appellant and her minor son under Sectionsection 24 of Act 1955. He thus submits that the impugned order passed by Court below is liable to be set aside/modified by this Court.
10. It is next submitted that it is an admitted position that salary of plaintiff-respondent is Rs. 10,603/- per month. It is also proved on record that certain tenure is recorded in favour of plaintiff-respondent. Taking these two undisputed facts into account, Court below ought to have sympathetically considered application filed by defendant-appellant for interim maintenance. However, Court below while passing impugned order has completely ignored the undisputed position as noted herein above, rendering the impugned order arbitrary.
11. Before proceeding to consider the submissions urged by learned counsel for defendant- appellant, it shall be useful to refer to provisions of Section 24 of Act 1955 which provides for payment of interim maintenance and litigation expenses. The same is reproduced herein below:
“24. Maintenance pendente lite and expenses of proceedings. – Where in any proceeding under this Act it appears to the court that either the wife or the husband, as the case may be, has no independent income sufficient for her or his support and the necessary expenses of the proceeding, it may, on the application of the wife or the husband, order the respondent to pay to the petitioner the expenses of the proceeding, and monthly during the proceeding such sum as, having regard to the petitioner’s own income and the income of the respondent, it may seem to the court to be reasonable:
Provided that the application for the payment of the expenses of the proceeding and such monthly sum during the proceeding shall, as far as possible, be disposed of within sixty days from the date of service of notice on the wife or the husband, as the case may be.”
12. The object of Section 24 of Act 1955 is to provide interim maintenance so that the parties in whose favour maintenance is awarded is able to support itself. As such, the meaning of term “maintenance” and ‘support’ needs to be referred to, as is defined in Black’s Law Dictionary (6th Edn., pp.953-54) thus:
” … The furnishing by one person to another, for his or her support, of the means of living, or food, clothing, shelter, etc. particularly where the legal relation of the parties is such that one is bound to support the other, as between father and child, or husband and wife.”
13. Likewise, the word “support” as defined in the said dictionary (p. 1439) reads as under:
“That which furnishes a livelihood; a source or means of living; subsistence, sustenance, maintenance, or living. In a broad sense the term includes all such means of living as would enable one to live in the degree of comfort suitable and becoming to his station of life. It is said to include anything requisite to housing, feeding, clothing, health, proper recreation, vacation, traveling expense, or other proper cognate purposes; also, proper care, nursing, and medical attendance in sickness, and suitable burial at death.”
14. From perusal of Section 24 of Act 1955, it is apparent that there is only one indicator in the section, which shall be taken into account by a Court for the purpose of awarding interim maintenance. Similarly in the entire act of 1955, there is no provision, which provides relevant factors to be looked into by a Court while awarding interim maintenance or factors which are required to be ignored by a Court while awarding interim maintenance. In Neeta Rakesh Jain Vs. Jeetmal Jain, 2010 (12) SCC 242 Court has considered relevant factors, which are required to be taken into consideration by a Court while deciding an application under Section 24 of Act 1955. Paragraphs 9 and 10 of aforesaid judgement are relevant for the controversy in hand. Accordingly, the same are reproduced herein under:
“9. Section 24 thus provides that in any proceeding under the Act, the spouse who has no independent income sufficient for her or his support may apply to the court to direct the respondent to pay the monthly maintenance as the court may think reasonable, regard being had to the petitioner’s own income and the income of the respondent. The very language in which the section is couched indicates that wide discretion has been conferred on the court in the matter of an order for interim maintenance. Although the discretion conferred on the court is wide, the section provides the guideline inasmuch as while fixing the interim maintenance the court has to give due regard to the income of the respondent and the petitioner’s own income.
10. In other words, in the matter of making an order for interim maintenance, the discretion of the court must be guided by the criterion provided in the section, namely, the means of the parties and also after taking into account incidental and other relevant factors like social status; the background from which both the parties come from and the economical dependence of the petitioner. Since an order for interim maintenance by its very nature is temporary, a detailed and elaborate exercise by the court may not be necessary, but, at the same time, the court has got to take all the relevant factors into account and arrive at a proper amount having regard to the factors which are mentioned in the statute.”
15. Subsequently, Apex Court in Manish Jain Vs. Akansha Jain, 2017 (15) SCC 801 has observed as follows in paragraph 12:
“12. The Court exercises a wide discretion in the matter of granting alimony pendente lite but the discretion is judicial and neither arbitrary nor capricious. It is to be guided on sound principles of matrimonial law and to be exercised within the ambit of the provisions of the Act and having regard to the object of the Act. The Court would not be in a position to judge the merits of the rival contentions of the parties when deciding an application for interim alimony and would not allow its discretion to be fettered by the nature of the allegations made by them and would not examine the merits of the case. Section 24 of the HM Act lays down that in arriving at the quantum of interim maintenance to be paid by one spouse to another, the Court must have regard to the appellant’s own income and the income of the respondent.”
16. A Division Bench of our Court in Lalta Prasad Kushwaha Vs. Jayanti Kushwaha, 2019 (2) ADJ 12, after considering aforesaid judgements of Apex Court observed as follows in paragraphs 15 and 16:
“15. Section 24 of the HM Act empowers the court in any proceeding under the Act, if it appears to the court that either the wife or the husband, as the case may be, has no independent income sufficient for her or his support and the necessary expenses of the proceeding, it may, on the application of any one of them order the other party to pay to the petitioner the expenses of the proceeding and monthly maintenance as may seem to be reasonable during the proceeding, having regard to also the income of both the applicant and the respondent. Heading of Section 24 of the Act is “Maintenance pendente lite and expenses of proceedings”. The Section, however, does not use the word “maintenance”; but the word “support” can be interpreted to mean as Section 24 is intended to provide for maintenance pendente lite.
16. An order for maintenance pendente lite or for costs of the proceedings is conditional on the circumstance that the wife or husband who makes a claim for the same has no independent income sufficient for her or his support or to meet the necessary expenses of the proceeding. It is no answer to a claim of maintenance that the wife is educated and could support herself. Likewise, the financial position of the wife’s parents is also immaterial. The court must take into consideration the status of the parties and the capacity of the spouse to pay maintenance and whether the applicant has any independent income sufficient for her or his support. Maintenance is always dependent upon factual situation; the court should, therefore, mould the claim for maintenance determining the quantum based on various factors brought before the court.”
17. Upon perusal of impugned judgement in the backdrop of judgements referred to above, we find that Court below has not adverted itself to the undisputed facts that salary of plaintiff-respondent is Rs. 10,603/- and he also has recorded tenure in his favour. The plaintiff-respondent deliberately concealed his Agricultural income from Court below. Court below ought to have taken into consideration the aforesaid factors and in that situation, amount of interim maintenance awarded to defendant-appellant would certainly have been more than Rs. 3000/-.
18. There is another aspect of matter. A sum of Rs. 3,200/- has been awarded towards interim maintenance to defendant appellant and her minor son in proceedings under Sectionsection 125 Cr.P.C. It is impossible even to imagine as to how a mother and a minor son can meet their daily expenses with a meagre amount of Rs. 3,200/-.
19. Considering the law laid down in Neeta Rakesh Jain (Supra), and undisputed facts of the present case as detailed above, we are of the view that Court below has erred in law in awarding a sum of Rs. 3000/- towards interim maintenance to defendant-appellant and her minor child under Sectionsection 24 of Act 1955. Court below has further directed that amount payable pursuant to order passed under Sectionsection 125 Cr.P.C. shall be adjusted. The result of same is that no amount of interim maintenance has been awarded to defendant-appellant and her minor son.
20. In view of the discussions, made herein above, we are of the view that impugned judgement and order passed by Court below needs to be modified to do complete justice between the parties. Accordingly, we allow this appeal, modify the impugned judgement and decree passed by Court below by directing that defendant-appellant shall be entitled to a sum of Rs. 6,000/- per month towards interim maintenance i.e. Rs. 4000/- for herself and Rs. 2,000/- for minor son. However, the amount of maintenance paid and awarded under Sectionsection 125 Cr.P.C. shall be adjusted.
21. Appeal is, accordingly, allowed.
Order Date :- 14.8.2019