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Yogesh Bajpayee vs Gudiya on 20 January, 2020

HIGH COURT OF JUDICATURE AT ALLAHABAD

?Court No. – 32

Case :- FIRST APPEAL No. – 56 of 2020

Appellant :- Yogesh Bajpayee

Respondent :- Gudiya

Counsel for Appellant :- Siya Ram Verma

Hon’ble Shashi Kant Gupta,J.

Hon’ble Vipin Chandra Dixit,J.

This appeal has been filed against the judgment and order dated 22.11.2019 passed by the Additional Principal Judge, Family Court, Court No. 5, Kanpur Nagar on an application filed under section 24 of Hindu Marriage Act (in short “the Act”) in Original Suit No. 2730 of 2018, Yogesh Bajpai Vs. Smt. Gudia, whereby the application of the respondent-wife has been partly allowed awarding Rs. 3,000/- per month towards interim maintenance pendente lite per month.

Heard the learned counsel for the appellant and perused the record.

Learned counsel for the appellant submitted that the findings given by the court below are illegal, arbitrary and are based on complete misreading of the case and misconception of legal position relevant to the matter and has not considered the evidence on record in right perspective.

A perusal of the record shows that a suit for divorce filed by the appellant is still pending before the court below. During the pendency of the said suit, an application under Section 24 of the Act was filed by the respondent-wife claiming Rs. 30,000/- towards litigation expenses and Rs. 5,000/- towards maintenance pendente lite but the court below, after perusal of the record and hearing the submissions of the learned counsel for the parties awarded Rs. 3,000/- towards maintenance pendente lite.

A perusal of the record further shows that the court below has given, cogent and convincing reasons while passing the impugned order. The order passed by the court below cannot be said to be unreasonable. Admittedly, the respondent is legally wedded wife of the appellant and it is duty of the appellant to maintain his wife. The court below has not accepted the submission made by the learned counsel for the appellant that he is unemployed and he has no source of income, and that he cannot incur the expenses of the respondent-wife towards maintenance pendente lite. Even otherwise also, it cannot be said that the awarded interim maintenance of Rs. 3,000/- is on higher side. It is also notable that the respondent-wife was not awarded any amount towards litigation expenses.

Considering the facts and circumstances of the case and keeping in mind the spiraling inflation rate and high cost of living index, we are of the opinion that Rs. 3,000/- per month towards maintenance pendente lite would not be treated to be on higher side. Thus, we find that the court below has given a cogent, convincing and satisfactory reasons while passing the impugned order and the same are neither perverse nor based on any extraneous consideration or irrelevant material. This Court, while exercising its appellate jurisdiction can not substitute its opinion for the opinion of the court below unless it is found that the conclusion drawn by the court below is factually incorrect, manifestly illegal or perverse. The appellant has failed to point out any infirmity in the finding recorded by the family court below.

In view of the above, we do not find any illegality, infirmity or perversity in the impugned order which may warrant any interference by this Court.

In the result, the appeal fails and is dismissed. However, it is made clear that this order will not preclude the respondent wife from challenging the impugned order for enhancement of the amount towards maintenance or claiming the litigation expenses.

Order Date :- 20.1.2020

vinay

 

 

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