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Vaibhav Kumar vs Smt. Kamlesh And Anr on 24 October, 2018

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
D.B. Civil Misc. Appeal No. 395/2018

Vaibhav Kumar S/o Sh. Devendra Sikarwar, By Caste Koli,
Resident Of G-277, Paldi Road, Subhash Nagar, District Bhilwara.

—-Appellant
Versus

1. Smt. Kamlesh W/o Shri Vaibhav Sikarwar D/o Shri
Shannu Lal Verma,

2. Kovid S/o Shri Vaibhav Sikarwar, Minor Through His
Natural Guardian Mother Smt. Kamlesh, Respondent No.

1., Both Resident Of Koli Mohalla, Outside B Narayan Gate
Police Station Mathura Gate, Circular Road, Bharatpur.

—-Respondents

For Appellant(s) : Mr. T.R.S.Sodha
For Respondent(s) : Mr. N.K.Dadhich with Mr.
S.D.Vaishanav

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

Judgment

24/10/2018

1. This appeal is directed against order dated 12.1.18 of Judge,

Family Court, Bhilwara, allowing an application preferred under

Section 24 of Hindu Marriage Act, 1955 (for short “the Act’) by the

respondents herein, has been allowed and the appellant (husband)

has been directed to pay maintenance pendente lite and litigation

expenses to the respondent (wife).

2. The appellant filed a petition against the respondent under

Section 13 of the Act, seeking decree of divorce on the ground of
(2 of 5) [CMA-395/2018]

desertion and cruelty, which is pending trial before the Family

Court, Bhilwara. During the pendency of the petition, the

respondent-wife filed an application under Section 24 of the Act

claiming maintenance pendente lite and the litigation expenses.

The respondent claimed maintenance pendente lite Rs.30,000/-

per month, the litigation expenses Rs.20,000/- and Rs.5,000/-

towards the to and fro expenses to attend each date of hearing.

3. After due consideration, the Family Court awarded

Rs.15,000/- per month as maintenance pendente lite

( Rs.10,000/- per month for the respondent-wife and Rs.5,000/-

for the minor child), litigation expenses Rs.20,000/- in lump sum

and Rs.2500/- towards to and fro expenes to attend each date of

hearing.

4. Learned counsel appearing for the appellant contended that

the order impugned passed by the Family Court is illegal and

arbitrary inasmuch as, the same has been passed without there

being any proof regarding the income of the appellant. Learned

counsel submitted that as a matter of fact, the appellant is

unemployed and has no source of income. It is submitted that the

order impugned passed by the Family Court is cryptic inasmuch

as, it does not disclose any reason for the conclusion arrived at.

Learned counsel submitted that award of maintenance

Rs.15,000/- per month is highly excessive and therefore, the

order impugned deserves to be set aside. It is submitted that

while passing the order impugned, the Family Court has altogether

ignored the sources of income of the respondent.

5. On the other hand, the counsel for the respondent submitted
(3 of 5) [CMA-395/2018]

that a bare perusal of the order impugned reveals that all the

relevant aspects have been taken into consideration by the Family

Court and in no manner, the order passed could be said to be

cryptic so as to warrant interference by this court. Learned

counsel submitted that the respondent-wife has responsibility to

upbring the minor child and therefore, taking into consideration

the various sources of income of the appellant, maintenance of

Rs.15,000/- awarded cannot be said to be excessive. It is

submitted that amount of litigation expenses and to and fro

expenses for attending the date of hearing also cannot be said to

be excessive.

6. We have considered the rival submissions and perused the

material on record.

7. A bare perusal of the provisions of Section 24 of the Act

makes it abundantly clear 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 proceedings may

apply for interim maintenance and while determining the

maintenance pendente lite and expenses of the proceedings, the

court shall have regard to the petitioner’s own income and the

income of the respondent. 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. 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
(4 of 5) [CMA-395/2018]

of the income to maintain at the level of social status of other

spouse. No hard and fast rule can be laid down for determining

the amount of maintenance pendente lite. Suffice it to say that u/s

24, the vast discretion is vested with the court to award

maintenance which has to be exercised reasonably and judicially.

8. In the backdrop of position of law discussed as above,

adverting to the facts of the present case, there is nothing on

record suggesting that the respondent-wife has her own source of

income. It is not disputed before this court that the appellant is

qualified Diesel Mechanic and Lab Technician. The respondent

claimed that the appellant was earning Rs. 22,000/- as salary

while doing the job in a Nursing Home. That apart, he is also

doing job as Accountant in Four Lane Construction Company and

earning Rs.25,000/- per month. It is true that there was no

concrete proof placed on record to prove the income of the

appellant and the income of the appellant as quantified by the

respondent may be in the higher side but, looking to the job

wherein the appellant is engaged, he must be earning a

reasonable income. Thus, on the facts and in the circumstances of

the case, in our considered opinion, the maintenance awarded in

favour of the respondent-wife as Rs.10,000/- per month appears

to be in little higher side and therefore, we consider it appropriate

to reduce the same from Rs.10,000/- per month to Rs.7500/- per

month. We are not inclined to interfere with the amount of

maintenance determined for the minor child by the Family Court.

Keeping in view the expenditure to be incurred by the respondent

for legal assistance, lump sum amount of Rs.20,000/- awarded by
(5 of 5) [CMA-395/2018]

the Family Court cannot be said to be excessive. It is not disputed

that for attending the date of hearing, the respondent alongwith

minor child has to travel to Bharatpur which is a place far away

from Bhilwara where the respondent is presently residing and

therefore, amount of Rs.2,500/- determined by the Family Court

towards ‘to and fro’ and other expenses to be incurred by the

respondent while attending each date of hearing, also cannot be

said to be excessive.

9. In the result, the appeal is partly allowed. The respondent

no.1 shall be entitled for maintenance pendente lite a sum of Rs.

7,500/- per month instead of Rs.10,000/- as determined by the

Family Court. The order passed by the Family Court awarding

maintenance for the minor child, the litigation expenses and to

and fro and other expenses for attending each date of hearing

shall remain unaltered. The order passed by the Family Court shall

stand modified accordingly. No order as to costs.

(DINESH MEHTA),J (SANGEET LODHA),J

Aditya/

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