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Surendra Singh Tanwar vs Heemani Purohit on 24 September, 2019

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
D.B. Civil Misc. Appeal No. 2600/2019

Dr. Shri Surendra Singh Tanwar S/o Shri Babusingh, Aged About
37 Years, B/c Rajput, R/o Bijalpur, Madhyapradesh Mob.
986063547 C/o Sriram Polly Clinic, Near Jain Temple, Bijalpur,
Indore, Madhyapradesh.

—-Appellant
Versus
Dr. Heemani Purohit W/o Dr. Surendra Singh Tanwar, Aged About
33 Years, D/o Shri Bajranglal, B/c Purohit, Permanent Address
Ward No. 7, Mohalla Genani Baas, Near Purana Thana Bhawan,
Sardarsahar, District Churu, Mob. 9929616667

—-Respondent

For Appellant(s) : Mr. Nitin Prakash Trivedi
For Respondent(s) : Mr.Sandeep Saruparia

HON’BLE MR. JUSTICE SANGEET LODHA
HON’BLE MR. JUSTICE VINIT KUMAR MATHUR

Judgment

24/09/2019

1. This appeal is filed by the appellant assailing the legality of

the order dated 1.8.19 passed by the Family Court, Churu in

Divorce Petition No.64/17, 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 and the appellant has

been directed to pay maintenance pendente lite a sum of

Rs.3,000/- per month each to the respondent and her two

children.

2. The respondent filed a petition against the appellant seeking

divorce under the provisions of Section 13 of the Act of 1955.

During the pendency of the petition, the respondent filed an

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application under Section 24 of the Act of 1955, claiming

maintenance pendente lite a sum of Rs.10,000/- per month from

the appellant for herself and her two children.

3. The respondent averred in the application that she has no

source of income, whereas the appellant who is an Ayurvedic

doctor holding the qualification of BAMS, is earning Rs.50,000/-

per month. It was averred that appellant has deserted the

respondent and therefore, she is residing with her parents. The

respondent having no source of income, is not in position to

maintain the two children. The respondent, who herself is also an

Ayurvedic doctor, averred that presently, she is pursuing her

studies of Post Graduation in a private college and not even

earning the stipend whereas, the appellant herein is running his

own clinic at Indore.

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

reply thereto. The appellant had taken a categorical stand that the

respondent is also a practising BAMS doctor and has sufficient

source of income to maintain herself and the children. The

appellant also placed on record income tax return of the

respondent of the assessment year 2015-16 showing annual gross

income of the respondent as Rs.2,93,050/- whereas, as per the

income tax return of the appellant for the assessment year 2015-

16, he had gross total income of Rs.3,16,607/-. According to the

appellant both the spouses were having equal source of income

and thus, the respondent is not entitled to claim any maintenance

whatsoever.

5. The Family Court after due consideration of the material on

record found that the appellant has admitted his monthly income

as Rs.40,000/-. The court observed that the respondent has taken

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admission in Tatia University to pursue her Post Graduation course

and there is nothing on record suggesting that she is being paid

monthly stipend. The return filed by the respondent is of the

Assessment Year 2015-16 and there is nothing on record that she

has filed the return for subsequent assessment years as well. The

court observed that the appellant is under an obligation to

maintain the respondent as also two minor children and

accordingly, determined the maintenance pendente lite payable to

the respondent and her two children, a sum of Rs.3,000/- each.

Hence, this appeal.

6. Learned counsel appearing for the appellant contended that

the Family Court has seriously erred in arriving at the conclusion

that the respondent has no source of income. It is submitted that

the evidence produced on record showing that the respondent, a

Gynaecologist, is regular practising doctor, has altogether been

ignored by the Family Court. Learned counsel submitted that even

if the appellant had not produced the income tax return of the

respondent for the assessment years subsequent to 2015-16, the

Family Court could not have drawn an inference that the

respondent has no source of income whatsoever. Learned counsel

submitted that the respondent is having adequate source of

income to maintain herself and minor children and thus, she is not

entitled for any maintenance in terms of provisions of Section 24

of the Act of 1955.

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

reiterating the stand taken before the Family Court submitted that

the respondent is pursuing her studies for PG and at present, she

has no source of income and therefore, the appellant is under an

obligation to maintain the respondent and her two children.

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Learned counsel submitted that amount of maintenance

determined by the Family Court is too meagre and does not

warrant any interference by this court in exercise of the appellate

jurisdiction.

8. We have considered the submissions of the learned counsel

and perused the material on record.

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

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

social status of other spouse.

10. No hard and fast rule can be laid down for determination of

the amount of interim maintenance. It is pertinent to note that

besides the return of the income filed by the respondent for the

assessment year 2015-16, the appellant had also produced on

record the material showing that the respondent is a practising

Gynaecologist. Merely because, the appellant is pursuing the

studies of PG, no inference can be drawn that she has stopped

practising as Gynaecologist altogether. Suffice it to say that on the

basis of material on record, conclusion drawn by the Family Court

that the respondent has no source of income of her own does not

appear to be justified. But then, even if the appellant and the

respondent have equal source of income, the appellant cannot

shirk from his responsibility to share the expenditure to be

incurred by the respondent towards maintenance of children and

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therefore, the amount of maintenance determined by the Family

Court a meagre amount of Rs.3,000/- per month for each of the

children, keeping in view the admitted income of the appellant

cannot be said to be excessive.

11. In the result, the appeal is partly allowed. The order

impugned passed by the Family Court awarding maintenance

pendente lite a sum of Rs.3,000/- to the respondent is set aside.

However, the order passed by the Family Court directing appellant

to pay maintenance to the respondent a sum of Rs.3,000/- each

for two minor children is maintained. No order as to costs.

(VINIT KUMAR MATHUR),J (SANGEET LODHA),J

55-Aditya/-

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