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Vikalp vs Neha Sharma on 28 August, 2018

FAO 5352 of 2018 (OM) [1]



FAO 5352 of 2018 (OM)

Date of Decision: August 28, 2018



Neha Sharma



Present: Mr.Ishan Singh Cooner, Advocate for the appellant.



Taking into consideration the fact that the husband/ appellant

has been doing the job in Vivo Company in Gurgaon and had been getting

salary of Rs.1 lac per month after deduction of tax, the lower Court has

awarded maintenance pendente lite under Section 24 of the Hindu Marriage

Act, for short ‘the Act’, at the rate of Rs.25000/- per month to the respondent

wife. The said order passed by the Family Court, Faridabad has been

questioned in appeal before this Court claiming that the appellant is, at

present, unemployed and the respondent being a highly qualified lady having

done MBA is earning for her comfortable survival.

We have heard counsel for the appellant who has urged that in

view of the earning capacity of the respondent and the present circumstances

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FAO 5352 of 2018 (OM) [2]

of the appellant, the amount of maintenance pendente lite awarded by the

lower Court is unreasonable. On asking of the Court regarding the stage of

the proceedings before the lower Court, it has been informed that the

evidence of the applicant/ appellant in his divorce petition has already been

completed and the case is at the stage of respondent’s evidence. There is

delay of 53 days in filing of the appeal.

We have considered all the facts and circumstances of this case.

We do no deem it appropriate to enter into the disputed question of fact and

decide the controversy regarding the actual income of the appellant, the

earning capacity of the respondent- wife and the appropriate amount which

is required to be paid as maintenance pendente lite in view of the stage of the

case which is at the penultimate stage. Provisions of Section 21 B (2) of the

Act provides that every petition filed under the Act is required to be tried as

expeditiously as possible and an endeavour should be made to decide the

same within 6 months from the service of the notice to the opposite party.

Even if it is presumed that the respondent has got an earning

capacity on the basis of her educational qualification, it will not debar her to

claim reasonable amount of maintenance pendente lite. The earning

capacity of the appellant and his educational qualification has been taken

into consideration by us and we are of the opinion that the plea that he is

unemployed person is unbelievable. No document has been produced on

the record that the appellant has ceased to work with the above said

Company and he is not earning anything. The appellant is an able-bodied

person cannot evade his liability to pay maintenance pendente lite during the

proceedings under the Act. Instead of interfering in the order of interim

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FAO 5352 of 2018 (OM) [3]

maintenance, we deem it appropriate to observe that in case the appellant

files an application before the lower Court in context to the provisions of

Section 21-B (2) of the Act for expeditious disposal of the case the trial

Court shall make an endeavour to conclude the proceedings within a

reasonable period expeditiously.

The appeal is dismissed at his stage.

Counsel for the appellant, at this stage, has submitted that

notice be issued to the respondent for making an attempt for amiable


Such a prayer can always be made before the lower Court. In

case any such request is made, the Court shall make efforts for amicable

settlement taking into consideration the spirit of Section 23 (2) of the Act.


sanjay JUDGE
Whether speaking/ reasoned: Yes/ No.

Whether reportable: Yes/No.

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