Bombay High Court
Neelam Dadasaheb Shewale vs Dadasaheb Bandu Shewale on 17 February, 2010
Bench: R. S. Dalvi
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 8954 OF 2009
Neelam Dadasaheb Shewale .. Petitioner Vs.
Dadasaheb Bandu Shewale .. Respondent Mr. Milind N. Jadhav i/b Mr. Sagar G. Talekar for the Petitioner. Mr. R. T. Lalwani for the Respondent.
CORAM : MRS. R. S. DALVI, J.
DATE : 17TH FEBRUARY, 2010
1. This writ petition challenges three interim orders passed in MJ Petition No.A1633/97 which was for enhancement of maintenance under 25 (2) of the Hindu Marriage Act.
2. It may be mentioned that an application under that provision can be filed only upon change in the circumstances of either party which would require modification of the order of permanent alimony passed.
3. Two orders are passed upon three applications of the parties.
4. One application was filed by the ex-husband (husband) seeking to restrain his ex-wife (wife) from using his surname (name) since divorce decree has been already passed and has became final. This application came to be filed as an interim application in the fresh petition filed by the wife after divorce.
5. The Advocate on behalf of the wife argued that the separate petition only should have been filed. Both these reliefs, permanent and interim, are between the same parties pursuant to the same marital relationship which has since ceased. Under Section 7 of the Family Courts Act the Family Court has jurisdiction to decide the petition-application as well as a suit or proceeding (permanent or interim), for injunction arising out of the marital relationship. The husband can, therefore, file a separate application/petition for injunction or take out an application in the wife’s application/petition already filed. In fact, the husband can file a counterclaim in any petition with regard to any relief arising out of the marital obligation. An application which may be in the nature of counterclaim, can therefore be allowed an interim application.
6. The substance of the application is required to be considered rather than its form. The substance of the application of the husband is that the wife should not use his name.
7. The Advocate on behalf of the wife fairly concedes that since the marriage has been dissolved by a decree for divorce which has become final, the wife cannot use the name of the husband. That is the only substance to be considered by the Family Court. Under the impugned order dated 23rd September, 2009 the Family Court has considered that aspect as an application arising out of a marital relationship. It is correctly considered. The order needs no interference.
8. In fact, the Advocate on behalf of wife mentioned that the bank account of the wife stands in both her names. That statement itself shows that the wife uses the name of the husband even after their marital relationship has been dissolved by an order of the Court. The description of the bank account is therefore improper. It is, therefore, clarified that the wife cannot use the husband’s name anywhere including in her bank account. The injunction granted by the Family Court in the application of the husband shall be effectuated for all purposes.
9. The writ petition also challenges another order of the same date between the same parties but in two different applications. One was the application filed by the wife for her to be represented by her constituted attorney on the ground that she is ill, does not know English, she has been mentally tortured at the hands of the husband and she would not be able to stand the court proceeding. The other application is filed by her constituted attorney asking for permission to represent the wife as she cannot financially afford a lawyer, lawyers are otherwise not permitted and that she would be entitled to assistance of the person she has faith in.
10.The legal right of a party in Family Court to be represented by her constituted attorney in place of her Advocate who is registered legal practitioner is required to be seen. Under Section 13 of the Family Courts Act no party is entitled as of right to be represented by a legal practitioner. However, the Court may appoint legal expert as amicus curie to assist her/him. A party has full right to appear before the Family Court. None can object to such appearance. The wife does not desire to have an Advocate. She has refused legal aid offered to her. She contends that she has faith only her constituted attorney. The extent of the right of a constituted attorney is laid down in Order III Rule 1 of the Civil Procedure Code as follows :
ORDER III :
1. Appearances, etc., maybe in person, by recognized agent or by pleader. – Any appearance, application or act in or to any Court, required or authorized by law to be made or done by a party in such Court, may, except where otherwise expressly provided by any law for the time being in force, be made or done by the party in person, or by his recognized agent, or by a pleader [appearing, applying or acting, as the case may be,] on his behalf :
Provided that any such appearance shall, if the Court so directs, be made by the party in person.
11.What is appearance, application or act has been considered by Chief Justice Chagla, as he then was, in the case of Aswin Shambhuprasad Patel and others Vs. National Rayon Corporation Ltd. (AIR 1955 BOMBAY 262). The provision of the aforesaid order was considered taking into account the Bar Councils Act and the Bombay Pleaders Act. It has been held that the aforesaid rule would not apply where a law for the time being in force otherwise expressly provided. It is held that pleading is not included in the expression “appearance, application or act in or to any Court”. This is so because, the right of audience in Court, the right to address the Court, the right to examine and cross-examine the witnesses are dealt with in other parts of the Civil Procedure Code and not under Order 3. It was further held the right of audience in Court is a part of pleading in Court and not “acting” as provided under Order 3. It is further observed that a party in person would have a right of audience in Court and not his recognized agent who would be “appearing, applying or acting” on his behalf. 7
12.Further the right of pleaders to plead in a Court of law under authority of the client and to have a right of audience in Court as a member of Bar is not dealt with under Order 3. The members of the Bar have a right in clause 10 of the Letters Patent as they are qualified to plead in Court as required by specific legislation and rules. Under that clause no person except Advocates, Vakils or Attorneys would be allowed to act or plead for and on behalf of any suitor except the suitor himself. Considering Section 8 of the Bar Councils Act under which no person was entitled to practice as an Advocate unless his name was entered in the roll of Advocates, it was observed that the expression “practice” is wider than the expression “plead”. Similarly Section 9 of the Bombay Pleaders Act, which was similar to the above section, was considered. The proviso to that section allowed a party to appear, plead or act on his own behalf but a recognized agent of the party was allowed to only appear or act (and not plead). It was therefore observed that proviso made a distinction between appearing, pleading or acting and appearing or acting. Whereas the party could do all three of the above her/his constituted attorney 8
could do only the above two. Consequently it was held that in the District Courts a recognized agent had no right to plead by relying on provision 9 of the Bombay Pleaders Act. It was observed that the right of audience is a natural and necessary concomitant of the right to plead and as the recognized agent had no right to plead, it follows that he has no right of audience in Court.
13.The law that is laid down in the aforesaid judgment holds true and good till now and even within Section 13 of the Family Courts Act. The object of Section 13 of the Family Courts Act is to allow a party to represent her/his case and consequently right of the lawyer to plead, appear and have audience in Court is limited but the right given to the party to appear is not extended to that parties’ constituted attorney. Hence, the general law of procedure under Order 3 Rule 1 as also the special laws contained in the Bar Councils Act and the Bombay Pleaders Act would apply even in a Family Court. The object of that provision is that only qualified persons are entitled to appear in Courts and represent the case of their parties. The qualification is of the knowledge of the law and 9
the enrollment under the Act. If constituted attorneys of all the parties are allowed to appear, the Court would be overrun by any number of unqualified, unenrolled persons. Since Civil Procedure Code would generally apply to a Family Court under Section 10 of the Act, the restraint upon appearance under Order 3 of the Code must hold good.
14.In the case of Pavithra Vs. Rahul Raj (AIR 2003 MADRAS 138 it has been held that the recognized agent of the party in a Family Court proceedings cannot be allowed to prosecute it. Considering the various provisions of the Family Courts Act which follow the procedure different from the Civil Courts, it is observed that the parties themselves can be heard. Some times legal assistance can be provided. However, personal appearance of the parties is inevitable to comply with the mandatory provisions of the Family Courts Act. Though the authorized agent, who is not a legal practitioner can file a petition, he can only prosecute or defend it or represent the party only until the Family Court passes an order directing the party to appear in person depending upon the facts and stage of the case. In that case the constituted attorney sought 10
permission to defend the case on the ground that she was not able to come to India to contest the case. Such a permission, it was held, could not be granted.
15.In the case of Sudha Kaushik Vs. Umesh prasad Kaushik (AIR 2005 GUJARAT 244) upon considering the law under normal circumstances as aforesaid it was held since that case the petitioner’s life was in danger his father was allowed to represent his son in the interest of justice though it was held that in normal circumstances any citizen or party is not allowed to be represented by his power of attorney unless he is an Advocate of the Court.
16.Consequently both the orders of the Family Court, Bandra, Mumbai dated 23.09.2009 are correct and cannot be interfered with. Writ petition is dismissed.
(R. S. DALVI, J.)
Mumbai High Court:- WIFE OR HER PARENTS Cannot claim Marriage expense. Also the right to claim permanent alimony is dependent on the conduct and the circumstances involved.
Mumbai High Court
Sudha Suhas Nandanvankar vs Suhas Ramrao Nandanvankar
JUDGMENT S.B. Mhase, J.
1. This appeal is directed against the Judgment and Order passed in Misc. Application No. 60 of 2000 on 5-8-2000 by the Family Court, Bandra in an application preferred under Sections 27 and 25 of the Hindu Marriage Act, inter alia, making prayer that the stridhan of the applicant be returned and also permanent alimony be granted. The said application was partly allowed by the Family Court. However, in respect of part rejection of the application, this appeal has been preferred.
2. The applicant was married with the opponent on 21-5-1995 according to Hindu Laws. The said marriage has been annulled by a-decree of nullity dated 16-3-1996 on a ground that the applicant-wife was suffering from epilepsy at the time of marriage. Even though the said decree was ex-parte, the said decree was not challenged by the applicant-wife. However, after passing of the said decree, the notice was issued by the applicant for return of the articles which were presented to her at the time of marriage by her parents as per the list. It is further claimed that the expenses incurred for the said marriage of Rs. 31,876/- be returned. During the pendency of this application the applicant-wife further submitted the application (Exh.16) for return of the articles and jewellery which was presented to her by her in-laws at the time of marriage. She has further claimed permanent alimony. The Family Court has rejected the claim of Rs. 31,876/- which was incurred by the parents of the’ applicant-wife for the purposes of marriage expenses on the ground that there is no provision to return such amount. At the time of argument of this matter, the learned Counsel for the appellant-wife fairly conceded that there is no provision for return of such marriage expenses and therefore, unless there is a provision to that effect, the trial Court was justified in rejecting the claim for the marriage expenses to the extent of Rs. 31,876/-. The trial Court has also rejected the claim in respect of the golden articles and jewellery as listed in (Exh.16). This appeal is mainly directed against the said finding of the trial Court. We need not go to list of those articles but what we find that all these articles, as per the claim made by the applicant-wife, have been presented to her by the in-laws viz. mother-in-law, sister-in-law i.e. (sister of the husband), another sister-in-law i.e. the wife of the brother of the husband and so on. Naturally, as these Articles have been presented by the in-laws, the applicant has not produced any evidence to demonstrate that these articles were purchased by her in-laws at any point of time. However, she had entered into witness box and stated that these articles were presented to her. In order to support her testimony, she has produced the photographs which were taken at the time of marriage wherein these articles were reflected as having been put on her and thereby claiming that these articles were with her and they have not been returned by the husband. Since they found to be stridhan, she is entitled to return of the same. The husband has denied that such articles were ever presented to the applicant-wife. According to him these articles were not presented at any point of time and he further made a suggestion in the cross-examination that these articles were of the parents of the appellant-wife which were put on by her parents in order to have a show of the presentation of such articles and he calls it as a “mandap show”. Such suggestion has been denied by the applicant-wife. However, it is pertinent to note that if these articles were presented to her, she should have examined some witnesses who were present at the time of marriage in the presence of whom these articles were presented by her in-laws. However, she has not examined her father and mother. She has not examined any friend who may be accompanied her at the time of said marriage ceremony to demonstrate that such articles were presented during the marriage ceremony to her. As against this, what we have noticed that the respondent-husband has entered into witness box to depose that such articles were not presented. Apart from that respondent-husband has examined his parents. The parents have also stated that such articles were not presented to the appellant-wife and therefore, the respondent has brought on record the primary evidence to demonstrate that such articles were never presented. Learned Counsel for the applicant tried to submit that since these articles will have to be returned to the appellant-wife, the respondent and his parents are making statements that such articles were not presented. However, what we find that in that eventuality, these witnesses have been cross-examined and nothing have been brought in the cross-examination to demonstrate that these witnesses were supressing the truth. We have gone through the evidence of the parents and noticed that the evidence is convincing one and the trial Court has rightly appreciated the evidence. Therefore, we find that appellant has failed to establish that such articles were presented by her in-laws in the marriage ceremony.
3. Apart from this, we have taken into consideration that when the first notice was given the articles mentioned in the list Exh.16 were not demanded. Not only that when the application was filed, in the said application there was no demand for the articles. It is during the pendency of the application, the Exh.16 was submitted to the Family Court making claim towards specific articles. Those articles were golden and jewellery articles and such important stridhan will not be forgotten by the appellant-wife till the pendency of the application. In that context it is reflected that it is a after thought decision to claim the articles and we find that the observation and finding recorded by the Family Court are proper and justified one and we find that there is no merit in the submission of the learned Counsel that the Family Court should have allowed the list (Exh.i6).
4. So far as the articles which are directed to be returned to the appellant-wife, we find that the findings have been rightly recorded and no interference is called for. Apart from that there was a counter appeal filed by the first party challenging the said order. The said appeal is withdrawn by the respondent-husband as not pressed and therefore, we confirm that part of the Family Court’s order.
5. The last question which requires consideration is in respect of the alimony. It is an admitted fact that the decree for nullity has been passed under Section 5(ii)(c) since the appellant was suffering from epilepsy. Since the learned Advocate for the appellant submits that under Section 25 the alimony has to be paid at the time of passing of the final decree. He relied on the decision in the case of Shantaram Tukaram Patil and anr. vs. Dagubai Tukaram Patil and ors. reported in 1987 Mh.LJ. 179. He further pointed out that the said Judgment is relied upon by the single Judge in a subsequent Judgment in the case of Krishnakant vs. Reena reported in 1999 (1) Mh.LJ. 388 and submitted that even though the decree of nullity was passed the petitioner is entitled to claim alimony under Section 25.
The learned Counsel for the respondent submitted that both these Judgments have considered the aspect that the entitlement of the party for permanent alimony and more specifically right of the wife. However, he submitted that the said right is available on condition that taking into consideration the conduct and the circumstances of case the Court is satisfied that alimony shall be granted. According to him after marriage, immediately there was a “Satyanarayan Pooja” and for the first time husband and wife came together. The respondent-husband found that the appellant-wife is a patient of epilepsy and on the next day, he has called on to the parents of appellant-wife and the father of the appellant came along with the Doctor to discuss. Learned Counsel further stated that the father requested respondent to allow the appellant to stay with respondent and the medical expenses will be borne by the father of the appellant. He submitted that thus the fact that the appellant was suffering from epilepsy was not disclosed at the time of settlement of marriage and till the marriage is performed. He further submitted that even though on 1 or 2 occasions, prior to the marriage there was a meeting of respondent husband and appellant-wife, still the appellant wife has not disclosed that she is a patient of epilepsy. Thus he submitted that the conduct of the appellant and her parents in not disclosing that the appellant wife is suffering from epilepsy is itself a fraudulent and therefore, the party which takes the benefit of it, shall not be allowed to take such benefit and this circumstance may be taken into consideration. Relevant portion of Section 25 of the Hindu Marriage Act, 1955 is as follows :- Section 25.- Permanent alimony and maintenance – (1) Any Court exercising jurisdiction under this Act may, at the time of passing any decree or at any time subsequent thereto, on application made to it for the purpose by either the wife or the husband as the case may be, order that the respondent shall pay to the applicant for her or his maintenance and support such gross sum or such monthly or periodical sum for a term not exceeding the life of the applicant as, having reward to the respondent’s own income and other property, if any, the income and other property of the applicant, (the conduct of the parties and other circumstances of the case), it may seem to the Court to be just, and any such payment may be secured, if necessary, by a charge on the immovable property of the respondent. In the facts and circumstances of the present case what we find that since the decree for nullity of marriage is passed under Section 5(ii)(c) we have to consider as to whether order for amount of alimony is to be passed. In view of the above referred 2 Judgments which have been relied by the Counsel for the appellant, we do not find any difficulty to conclude that in such a decree the wife is entitled to have a permanent alimony. However, whether the conduct of the parties and other circumstances involved in this case will allow us to pass such order is the main question. It is an admitted fact that the marriage was celebrated on 21-5-1995 and within 4 days from the date of marriage, ‘Satyanarayan Pooja’ was performed in the matrimonial home and thereafter husband and wife were allowed to stay with each other. However, when it was found that the appellant-wife is suffering from epilepsy the marriage was not consumated and on 27-5-1995 the respondent-husband has contacted the appellant’s father. The applicant’s father and mother accompanied by the Doctor attached to the Poddar hospital came to the house of the respondent-husband and thereafter they discussed about the fact of suffering of the epilepsy. The appellant’s father showed willingness to incur the medical expenses for the treatment of the appellant. However, he requested the Respondent to allow the appellant to stay in the house of the respondent-husband. This was not accepted by the respondent and therefore, the father of the appellant has taken the appellant and thereafter, a petition for nullity of marriage was filed in which ex-parte decree was passed. The said decree is not challenged. Thereafter, the applicant has filed this application for the permanent alimony. It is pertinent to note that the parents and/or father of the appellant have not entered into a witness box either to depose that the fact of the epilepsy was disclosed to the respondent husband at the time of settlement of carriage nor the appellant has stated in her evidence that at any point of time prior to the marriage when they have seen each other said fact was disclosed to the respondent-husband. Therefore, the only inference is that till the marriage is performed the respondent was not aware of the fact that the appellant is a patient of epilepsy. The moment he got knowledge, he has not consummated the marriage and called the parents of the appellant and thereafter appellant was taken by the parents. This shows that had the fact been disclosed prior to the performance of the marriage, the respondent-husband would not have conducted such marriage with the appellant-wife. The non disclosure by the parents of the appellant and the appellant accepting the decree as it is without making any grudge that in respect of the ground that the appellant was suffering from the epilepsy prior to the marriage reflects upon the conduct of the appellant and if we take into consideration this aspect what we find is that the appellant is trying to take advantage of her wrong or fraud and is trying to harass the respondent by claiming the amount of alimony. But what we find is that after a decree of annulment the respondent has married and he is having a child. Now this appears to be an attempt on the part of the appellant and her parents to disturb the marital life of the respondent which he has tried to settle after annulment of the marriage. This is an attempt to shift the liability of maintenance by the appellant-wife on a husband who was not at fault and who has not consummated the marriage. Even though the law permits the right of the alimony in favour of the appellant, however, the conduct and the circumstances involved in the present case does not permit us to pass an order of permanent alimony in favour of the appellant. We find that the findings recorded by the Family Court are just and proper and no interference is called for.
6. In the result, we find that there is no substance in the appeal and hence, appeal is hereby dismissed with no order as to costs.
Bombay HC:- Once the interim maintenance is granted either under section 24 of the Hindu Marriage Act or under section 18 of the Hindu Adoptions and Maintenance Act, then, there is no question of entertaining the application under the other Act.
M.B. Shah, C.J.
1. After considering the various decisions cited at the hearing of the Notice of Motion, by order dated 17th January, 1997, Variava, J., referred to the Division Bench the following two questions for determination:–
“1. Whether in proceedings under section 18 of the Hindu Adoptions and Maintenance Act, the Court can grant interim maintenance?
2. Whether if matrimonial proceedings are pending between the parties then an application for interim maintenance must be made only to the Family Court under the provisions of section 24 of the Hindu Marriage Act?”
2. With regard to the first question, after considering the various decisions, the Division Bench of this Court (V.P. Tipnis & Mrs. R.R Desai, JJ.) by judgment and order dated (16th and 17th December, 1997 in Appeal No. 14 of 1997) has arrived at the conclusion that, in a suit filed under section 18 of the Hindu Adoptions and Maintenance Act, 1956, the Court has jurisdiction and power to pass appropriate interim and ad-interim orders. We agree with the said conclusion.
3. Further, it is to be noted that the Hindu Adoptions and Maintenance Act, 1956 codifies the law relating to adoptions and maintenance among Hindus. It only declares and codifies the law with regard to adoptions and maintenance by Hindus. The basis of such obligation to maintain wives, widowed daughter-in-law, children and aged parents may be a pious obligation of Hindus. The provisions relating to maintenance are in Chapter III. Section 18 deals with maintenance of a wife during her life time under certain circumstances, as provided in sub-section (2) thereof. Section 19 provides for maintenance of a widowed daughter-in-law to the extent that she is unable to maintain herself out of her own earnings or other property by her father-in-law. Similarly, section 20 provides for maintenance of his or her legitimate or illegitimate children and his or her aged or infirm parents. The liability to pay maintenance to children is on the father or mother. Similarly, liability to pay maintenance to infirm parents is on the son or the daughter. Section 22 further provides that the heirs of a deceased Hindu are bound to maintain the defendants of the deceased (as defined in section 21) out of the estate inherited by them from the deceased. Section 23 provides for the objective criteria for determining the amount of maintenance. Further, the requirement is that no person shall be entitled to claim maintenance if she or he has ceased to be a Hindu by conversion to any other religion (section 24). Section 25 empowers the alteration of the amount of maintenance on change of circumstances justifying such alteration. Further, the proceedings initiated for getting maintenance would be under the Civil Procedure Code. Hence, there is no reason why inherent jurisdiction of the Court cannot be exercised for providing interim maintenance. If a deserted wife, widowed daughter-in-law, minor children and aged parents are not provided with interim maintenance, it would cause lot of hardship for a long period. The entire purpose of the enactment would be defeated because of the proverbial delays in disposal of cases resulting in grave hardship to the applicants who may have no means to survive until final decree is passed. There is no provision under the Hindu Adoptions and Maintenance Act or under the Civil Procedure Code that interim maintenance cannot be granted; there is no provision under the said Act which would meet the necessities of the case in question. Therefore, for doing real and substantial justice, Court can exercise power under section 151 of the Civil Procedure Code for grant of interim maintenance. It would also prevent abuse of the process of the Court.
4. Even in proceedings under section 125 of the Code of Criminal Procedure, in the case of Savitri v. Govind Singh Rawat, 1986 Cri. L.J. 411, the Court held as under :–
“Having regard to the nature of the jurisdiction exercised by a Magistrate under section 125 of the Code, we feel that the said provisions should be interpreted as conferring power by necessary implication on the Magistrate to pass an order directing a person against whom an application is made under it to pay a reasonable sum by way of interim maintenance, subject to the other conditions referred to, pending final disposal of the application. In taking this view we have also taken note of the provisions of section 7(2)(a) of the Family Courts Act, 1984 (Act No. 66 of 1984) passed recently by Parliament proposing to transfer the jurisdiction exercisable by Magistrates under section 125 of the Code to the Family Courts constituted under the said Act.”
For arriving at the above conclusion, the Court has observed that every Court must be deemed to possess by necessary intendment all such powers as are necessary to make its orders effective. The Court further observed that whenever anything is required to be done by law and it is found impossible to do that thing unless something not authorised in express terms be also done, then that something else will be supplied by necessary intendment. In a civil suit filed for maintenance on the basis of the law applicable under the Hindu Adoptions and Maintenance Act, such power is required to be exercised. In our view, there is no reason not to apply the ratio laid down by the Supreme Court in Savitri’s case (supra) to the question involved in the present case.
5. Re: The Second Question :
In our view, even if matrimonial proceedings are pending between the parties, it is not the requirement that the application for interim maintenance must be made only to the Family Court under the provisions of section 24 of the Hindu Marriage Act. Once we arrive at the conclusion that an application under section 18 of the Hindu Adoptions and Maintenance Act is maintainable during the pendency of proceedings under the Hindu Marriage Act, then, obviously, the result would be that the application (or interim maintenance could be filed before the Court dealing with the right arising under provisions of section 18 of the Hindu Adoptions and Maintenance Act.
6. With regard to the provisions of section 18 of the Hindu Adoptions and Maintenance Act and provisions of the Hindu Marriage Act, the Apex Court, in the case of Chand Dhawan v. Jawaharlal Dhawari, 1993(3) Supreme Court Cases 4061, has held that, without affection or disruption of the marital status, a Hindu wife sustaining that status can live in separation from her husband, and whether she is living in that state or not, her claim to maintenance stands preserved in codification under section 18(1) of the Hindu Adoptions and Maintenance Act. She may also be entitled to relief under section 125 of the Code of Criminal Procedure; but this is an alternative measure. The Court clarified that, in a petition under the Hindu Marriage Act, the Court is empowered to grant interim maintenance; but, in those cases where the marital status is to be affected or disrupted, then the Court would pass orders for maintenance. In other cases, the Hindu Adoptions and Maintenance Act would be applicable. Hence, in our view, even if matrimonial proceedings are pending between the parties in the Family Court, it is not necessary that for getting interim maintenance, an application must be made to the said Court under the provisions of section 24 of the Hindu Marriage Act.
7. We, however, make it clear that, once the interim maintenance is granted either under section 24 of the Hindu Marriage Act or under section 18 of the Hindu Adoptions and Maintenance Act, then, there is no question of entertaining the application under the other Act. This would avoid multiplicity of proceedings, because the criteria for awarding maintenance under both the provisions would be the same.
8. Reference stands disposed of accordingly.
Husband get divorce u/S 13(1)(ia) and (ib) of HMA but the Bombay HIgh Court set asides the order of Maintenance to the wife which was rejected by Family Court.
A husband who won the Divorce & Maintenance battle in Family Court has to run pillar to post even after the mental cruelty from Wife…this time its from Bombay High Court. Even after the Maintenance application of Wife was rejected by Family Court u/s 18(2)(a), (b), (g) and 20 of the Hindu Adoptions and Maintenance Act, 1956, the Bombay High Court ordered to set aside the same and directed the Lower Court for the Re-trail of the said application.
below is the Judgement
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
FAMILY COURT APPEAL NO.28 OF 2012
aged about 47 years, Hindu Indian Inhabitant,
residing at c/o.Champaklal Hemchand Shah,
A-204, Shelter C.H.S. Ltd. Ambadi Road,
Near Kalpana Hospital,
Opp.Kuldip Dewankar Garden,
Vasai Road (West), Dist.Thane-401202. … Appellant
Nitin Chimanlal Shah,
aged about 46 years, Hindu Indian Inhabitant,
residing at 303, Darshan C.H.S.Ltd.
Love Lane, Opp.B.I.T. Chawl,
Mazgaon, Mumbai – 400 010. …. Respondent
FAMILY COURT APPEAL NO.29 OF 2012
CIVIL APPLICATION NO.41 OF 2012
FAMILY COURT APPEAL NO.29 OF 2012
1. Bhavana N.Shah,
aged about 47 years, Hindu Indian Inhabitant,
residing at c/o.Champaklal Hemchand Shah,
A-204, Shelter C.H.S. Ltd. Ambadi Road,
Near Kalpana Hospital,
Opp.Kuldip Dewankar Garden,
Vasai Road (West), Dist.Thane-401 202.
2.Chi.Palak Nitin Shah,
aged about 19 years, Indian Inhabitant,
residing at C/o.Champaklal Hemchand Shah,
A-204 Shelter C.H.S. Ltd. Ambadi Road,
1 of 18
Near Kalpana Hospital,
Opp.Kuldip Dewankar Garden,
Vasai Road (West), District Thane-401 202. … Appellants
Nitin Chimanlal Shah,
aged about 46 years, Hindu Indian Inhabitant,
residing at 303, Darshan C.H.S.Ltd.
Love Lane, Opp.B.I.T. Chawl,
Mazgaon, Mumbai – 400 010. …. Respondent
Mr.Ajit Karwande for the Appellants.
Respondent-husband present in-person.
CORAM: A.M. KHANWILKAR &
JUDGMENT RESERVED ON : 15TH JUNE, 2012
JUDGMENT PRONOUNCED ON : 21ST JUNE, 2012
JUDGMENT (Per Khanwilkar, J.) :
1. We propose to dispose of both these Appeals together by this
2. Appeal No.28/2012 is directed against the Judgment and Decree
passed in Petition No.A-1082/2007 dated 1st December, 2011 passed by
Family Court No.VII, Mumbai, whereby, the Family Court allowed the
Petition filed by the respondent-husband for dissolution of marriage and divorce under Section 13(1)(ia) and (ib) of the Hindu Marriage Act, 1955.
3. The other Appeal being Appeal No.29/2012 is also filed by the
wife along with daughter challenging the common Judgment dated 1st
December, 2011 passed by the Family Court No.VII, Mumbai in Petition
No.C-136/06 praying for maintenance and separate residential
accommodation for herself and minor daughter Palak Nitin Shah under
Section 18(2)(a), (b), (g) and 20 of the Hindu Adoptions and Maintenance Act, 1956.
4. The Family Court by the common Judgment has dismissed the
petition filed by the wife and minor daughter for maintenance and
residential accommodation but has allowed the Petition filed by the
husband for dissolution of marriage and decree of divorce. We would
first examine the challenge to the decree of divorce by the appellant wife.
5. The respondent husband in his Petition filed under Section 13(1)
(ia) and (ib) of the Hindu Marriage Act has stated that the marriage
between the parties took place on 5th February, 1990. They were blessed with one daughter named Palak. After few years, discord between the spouses took place as a result of very rude behaviour of the wife. The wife was uninterested in domestic work. She picked up quarrels on unessential matters and created unhealthy atmosphere in the house. The wife was in the habit of making false, frivolous and concocted allegations against the husband and his family members. She went to the extent of making false allegations against the husband having illicit relationship with his two real sisters. That on 1st June, 2005, the wife left her matrimonial home on her own and inspite of persuasion by the husband and his relatives, she refused to join the company of the husband. On the basis of these allegations, the husband prayed for dissolution of marriage between the parties solemnized on 5th February, 1990 at Mumbai and the decree of divorce.
6. The appellant wife filed written statement to oppose the said
Petition. The parties adduced evidence in support of their respective
claim. The Family Court adverting to the relevant evidence and placing emphasis on the admissions given by the appellant wife in her crossexamination, accepted the claim of the respondent husband. The Family Court in the common Judgment has highlighted the admissions of
appellant in her cross-examination wherein she has admitted that she did not lodge any complaint before police against respondents or his family members. Further, she does not have any evidence to show that she was tortured mentally as well as physically. She admitted that she got her daughter admitted in Nazareth School without consent of her husband and she had never discussed with husband about the same. She has also admitted that the husband and his family members approached her and tried to convince her to come back to her matrimonial home on two occasions. She has admitted in the cross-examination that she saw the illicit relations between her husband and his real sisters. The Family Court has then considered the admission of appellant’s witness PW 2 i.e. daughter Palak. It has then noted that besides the oral admissions of the appellant and her witness, even the documentary evidence goes against the appellant. It took into account the pleadings and oral evidence of the parties, more particularly, in respect of the allegation about the illicit relations of husband with his sisters. The appellant had made those allegations in her letters sent to the husband and reiterated the same in the pleading and also in the oral evidence and justified the same on the ground that that was her inner feeling. The Family Court,
therefore, opined that the allegations by the appellant wife about illicit relation between husband and his sister were unsubstantiated and frivolous. The Family Court has noticed the letters Exhibit 62 and Exhibit 63, in addition to the stand taken in the written statement as well as oral evidence of the appellant. The Family Court on analysis of the above material then proceeded to authoritatively hold that the wild allegations made by the wife against the husband about illicit relations between him and his sisters, coupled with the fact that inspite of attempt made by the husband and his family members to persuade the appellant wife to come back to her matrimonial home and resume cohabitation/conjugal rights, she failed to do so, answered the issue against the appellant wife and therefore, dissolved the marriage between the parties on the ground of cruelty within the meaning of Section 13(1) (ia) and Section 13(1)(ib) of the Hindu Marriage Act. This is the sum and substance of the finding and the conclusion reached by the Family Court to answer the matter in issue.
7. We have heard Mr.Karwande for the appellant wife and the
respondent husband who has appeared in-person. No doubt,
Mr.Karwande made strenuous effort to persuade us to take the view that the common Judgment of the Family Court is completely unsustainable as it fails to analyse the evidence properly and to record finding of fact in the context of the separate issue that was required to be answered before concluding that the petition filed by husband for dissolution of marriage and divorce deserves to be allowed. The argument is attractive at the first blush. However, as aforesaid, the Family Court has adverted to the substance of the pleading and oral and documentary evidence adduced by the parties. The Family Court has deduced its conclusion on that basis.
After having perused the relevant pleadings and the evidence on record, which this Court in appeal is expected to do, the conclusion reached by the Family Court in dissolving the marriage between the parties and passing decree of divorce is inevitable. We are inclined to uphold the order of dissolution of marriage and the decree of divorce.
8. We would first deal with the ground ascribable to Section 13(1)
(ia) of the Hindu Marriage Act. The Family Court has adverted to
different allegations found in the petition filed by the husband. In our opinion, the decree passed by the Family Court ought to be upheld on the ground of cruelty considering the fact that the appellant wife in her communication dated 11th May, 2006 in response to the letters sent by the respondent husband dated 5th December, 2005 and 11th January, 2006 has stated about the incidents she had personally noticed indicative of illicit relations between the respondent husband and his sisters. We refrain from reproducing those allegations in this Judgment. Suffice it to mention that the same are serious and disparaging remarks. The respondent husband in his petition has pointedly referred to the said communication, being one of the acts committed by the appellant wife which had caused immense mental agony and cruelty to him. The appellant wife in the written statement went on to reiterate those allegations and gave justification that the letters sent by her on 11th May, 2006 was a privileged communication between the husband and wife. She has further justified her stand on the ground that she had stated those
facts in the said letter on the basis of “her inner feelings”. This defence is found in paragraph XIV of the written statement. The husband in his evidence has reiterated the position that making of such malafide, reckless and frivolous allegations by the wife constituted severe mental cruelty to him. Nevertheless, the appellant wife in her oral evidence (cross-examination) went on to assert that she personally saw the illicit relations between the respondent husband and his real sisters and she had written about the same in her communication dated 11th May, 2006 sent to respondent husband on the basis of her inner feelings. Admittedly, no contemporaneous evidence has been produced by the appellant wife to
corroborate her version. The facts stated by her in her communication
dated 11th May, 2006 on which she has placed reliance have not been
substantiated by the appellant at all, except her bare words. The making of such false, frivolous and unsubstantiated allegations against the husband in the communication as well as reiterating the same in the written statement and also in the oral evidence given by the wife before the Court was bound to cause mental cruelty to the husband. It was clearly an attempt to sully the reputation not only of the respondent husband but also of the two sisters who were in the profession of Medicine and Law respectively. That, by itself, is a good and germane ground to dissolve the marriage between the parties and to grant decree of divorce under Section 13(1)(ia) of the Hindu Marriage Act. We need not deal with the other allegations concerning ground of cruelty. Even the Family Court has not touched upon those allegations but in substance has opined that this ground established from the record was sufficient to grant decree of divorce. In other words, the decree of divorce under Section 13(1)(ia) deserves to be upheld in the fact situation of the present case.
9. The Family Court has also dissolved the marriage between the
parties and granted decree of divorce on the ground under Section 13(1)(ib) i.e. desertion. As an appellate Court, having upheld the decree of divorce on one count, which is formidable one and unassailable on any count, it may not be necessary to dilate on other grounds to sustain the decree. Be that as it may, we find that even though the Family Court has not thoroughly analysed the pleadings and evidence on record in the context of Section 13(1)(ib), but has certainly referred to the substance of the pleadings and the evidence. The Family Court has noted that appellant wife left the matrimonial house on her own on 1st June, 2005 and that inspite of persuasion by the respondent husband and his family members on two different occasions, she refused to resume cohabitation/conjugal rights. The fact that she left her matrimonial home on 1st June, 2005 is admitted by the wife. She has also admitted that after leaving the matrimonial home, she stayed with her father. Further, she took away her daughter along with her and got her admitted in Nazareth School without consulting her husband or informing him about the same.
She has also admitted that the husband and his family members had come to her on two occasions to convince her to resume cohabitation/conjugal rights, but she did not go back to her matrimonial house. On the basis of these admitted facts, the Family Court has granted decree of divorce also on the ground of desertion under Section 13(1)(ib).
10. As aforesaid, on reading the impugned Judgment, it may appear
that it has straightway jumped to conclusion against the appellant wife.
Notably, the Court has rightly noted the essential factors to constitute the
ground of “desertion”. Such as, factum of separation, intention to bring
cohabitation permanently to an end, the element of persuasion. In the
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communication sent by the wife to the husband and more so in her
pleading and oral evidence before the Court, the appellant wife has given
admission on the above aspects. The fact that the parties separated on 1st
June, 2005 is indisputable. The husband having approached appellant
wife as also his family members on two occasions to persuade the
appellant to resume cohabitation/conjugal rights has been admitted by the
appellant wife. However, she refused to go back. It necessarily follows
that the appellant wife had shown intention to bring cohabitation
permanently to an end. Even persuasion by respondent husband and his
family members did not work with the appellant. She steadfastly refused
to join the matrimonial home. In this backdrop, the finding as well as the
conclusion reached by the Family Court of dissolving the marriage
between the parties and granting decree of divorce under Section 13(1)
(ib) is also unexceptionable.
11. As aforesaid, no interference is warranted with the final order
passed by the Family Court in dissolving the marriage between the parties
and granting decree of divorce on the ground of cruelty and desertion
under Section 13(1)(ia) and 13(1)(ib) in favour of respondent husband
and against the appellant wife.
11 of 18
12. That takes us to the other Appeal arising out of the dismissal of
Petition filed by the appellant wife, for maintenance and separate residential
accommodation, by the common judgment and decree. Indeed, this Petition
was filed by the appellant wife in earlier point of time. The Petition for
dissolution of marriage and divorce was filed by the husband, during the
pendency of the maintenance petition. The claim in the maintenance petition
was founded on the ground under Section 18(1) and 18(2) (a), (e) and (g). In
other words, appellant wife claimed separate residential accommodation from
her husband without forfeiting her claim of maintenance, on the ground of
desertion by the husband and of abandoning her without reasonable cause and
without her consent or against her wish, or willfully neglecting her. The second
ground was that she was treated with such cruelty as to cause reasonable
apprehension in her mind that it will be harmful or injurious to live with her
husband and, thirdly, that there are other causes justifying living separately. The
Trial Court has examined the subject issues while considering the question of
awarding maintenance amount to the wife and the daughter as well as of
separate residence to the wife, together. Indubitably, these issues were distinct
and were required to be analysed and decided separately. Further, the same
have been disposed of together by cryptic judgment, in the following words:
12 of 18
“Issue Nos. 1 to 4 (in Petition No. C-136/2006)
22. The evidence is already discussed above. To avoid
repetitions and the issues involved in this case, it is sufficient to
mention that Bhavna(wife) left the matrimonial home on her own.
She took with her minor daughter, who has attained majority today.
She even failed to inform the husband. She admits that she has no
proof of physical or mental cruelty. She has not proved reasonable
cause to reside separately.
23. There is sufficient evidence on record to show that
Nitin(husband) was willing to continue matrimonial relations. He has
made request in writing (Exh 62 and Exh 63) Bhavana (wife) has not
bothered to reply it. Palak (P. W. No. 2) admits that sister of
respondent had come to convince her and mother to come to reside
with them. Bhavana(wife) also admits that on two occasions the
husband and his family members came to bring her back. Sec. 18(1)
of Hindu Adoption and Maintenance Act, 1956 provides wife shall
shall be entitled to be maintained by her husband during her life time.
Sub-clause (2) provides – a Hindu wife shall be entitled to live
separately from her husband without forfeiting her claim to
a) If he is guilty of desertion,
b) If he has treated her with cruelty,
c) If he is suffering from a virulent from of leprosy,
d) If he has any other wife living,
e) If he keeps a concubine in the same house,
f) If he ceased to be a Hindu by conversion, if there is any other
cause justifying her living separately.
24. The rights and liabilities are co-relative. If any one want
rights, then he has to perform liability. No doubt, the wife is entitled
to live separately for any of the just grounds as provided under sec.
18(2) of The Hindu Adoptions and Maintenance Act, 1956. The
entire evidence on record shows that Bhavana(wife) is at fault. She
herself treated the husband with cruelty. She has deserted him
without reasonable cause. She has failed to prove her claim.
25. The argument (Exh. 86) advanced by wife is mainly
relating to properties or without any factual or legal support. Hence,
need no reply. Therefore, I answer point nos. 3 to 4 in the negative.”
13. In substance, the Family Court was influenced by the fact that, in the
accompanying Petition, it was already found that appellant wife had left the
13 of 18
matrimonial home on her own, along with her minor daughter and was not
willing to return back, even though the respondent husband was willing to
continue with the matrimonial relation. Thus, the Family Court held that the
appellant wife is dis-entitled from claiming maintenance from her husband. As
regards the maintenance amount payable to daughter Palak, the Family Court
noted that she has attained majority. The fact that she was still unmarried, has
not been reckoned at all. Be that as it may, we are of the considered opinion
that the manner in which the Petition for maintenance and separate residence,
filed by the appellant, has been decided, is undesirable. The Family Court
ought to have analysed the pleadings and evidence in the context of the claim
of maintenance by wife and unmarried daughter, though attained adulthood.
14. The respondent has placed emphasis on the decision of the Rajasthan
High Court in Shimla Devi vs. Kuldeep Sharma AIR 1999 Rajasthan 181. In
that case, the Court proceeded on the finding that the wife was unwilling to
reconcile and resume cohabitation. Notably, the said judgment considered the
correctness of the decision of the Family Court by which the marriage between
the parties came to be dissolved and decree of divorce was passed. The
observations found in Paragraph 7 and 8 of the said decision, on which
emphasis has been placed, will be relevant in the context of the issue of
dissolution of marriage and passing of decree of divorce. Reliance was then
placed on the decision in the case of Deb Narayan Halder vs. Smt. Anushree
14 of 18
Halder AIR 2003 SC 3174. The Court found that the reasons given by the
wife, about her ill treatment, were non existent and unsubstantiated. The Court
then proceeded to hold that the wife left the matrimonial home without any
justification. On that basis, the Court answered the issue of maintenance under
Section 125 of the Code of Criminal Procedure, which is attracted when the
person, having sufficient means, neglects or refuses to maintain his wife and
unmarried daughter, though they are not able to maintain themselves. Section
18(1) of the Hindu Adoption and Maintenance Act, 1956 bestows right in the
Hindu wife, being entitled to be maintained by her husband during her life
time. Indeed, the opening words of the said Section are of some significance,
which read – “subject to the provisions of this section”. Sub-Section (1) of
Section 18, distinctly deals with issue of maintenance of Hindu wife, by her
husband, during her lifetime. Whereas, Section 18(2) of the Act bestows right
in the Hindu wife to be entitled to live separately from her husband without
forfeiting her claim of maintenance. In the present case, besides the issue of
maintenance of wife, it was necessary to examine the independent claim of the
unmarried daughter – who at the time of institution of the petition was
15. As regards the claim of the appellant wife for providing separate
residential accommodation, even if we were to take the view that the Family
Court in substance has found that the appellant wife has not substantiated the
15 of 18
requirements specified in Clause (a) and Clause (b) of Sub-Section (2), even
then, the Court was obliged to analyse the pleadings and evidence of the parties
in the context of the requirements of Clause (g) of Section 18(2), which entitles
the Hindu wife to live separately from her husband without forfeiting her claim
to maintainance on account of any other cause justifying living separately. That
was one of the ground pressed into service by the appellant for her claim of
separate residence, in her Petition, which is noted even in the opening part of
the Judgment. The Family Court ought to have considered the matter in that
16. On a bare perusal of Section 18, it is amply clear that the sweep of
each requirement under Sub-Section (2) is markedly different. In other words,
each of these causes in clauses (a), (b) and (g), invoked by the appellant wife,
operate in different spheres. It was but appropriate that the Family Court ought
to have analysed the material on record to answer the same independently and
not to jump to a conclusion.
17. Considering the fact that the Family Court has not properly dealt with
the issues of maintenance and separate residence, we deem it appropriate to
quash and set aside the reasons and the conclusion on these two issues, which
have been considered in Petition No. C-136/2006, filed by the wife along with
the daughter. Instead, the parties will have to be relegated before the Family
16 of 18
Court for reconsideration of the said matter afresh from the stage of oral
arguments, on its own merits, in accordance with law, uninfluenced by any
observation made in the impugned decision on the said issues.
18. We may place on record that we are not specifically touching upon
the arguments canvassed by the parties, in relation to these two issues of grant
of separate residence to wife and maintenance amount payable to the wife and
daughter, unmarrried though. Inasmuch as, any observation made in that
behalf would affect the parties one way or the other. In other words, all the
contentions available to the parties, in Petition No. C-136/2006, are kept open.
19. Accordingly, we proceed to pass the following order:
O R D E R
(1) The Appeal No.28/2012 filed by the wife challenging the
decree of dissolution of marriage between the parties and divorce is
dismissed. Instead, the said decree, passed by the Family Court at
the instance of the respondent/husband, is upheld and maintained.
(2) The Family Court Appeal No.29/2012 is allowed. The
judgment and decree, passed in Petition No. C-136/2006 is quashed
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and set aside. Instead, the parties are relegated before the Principal
Judge, Family Court, Mumbai for reconsideration of the said Petition
afresh from the stage of oral arguments. All questions therein are left
(3) The parties shall appear before the Principal Judge of the
Family Court, Mumbai on 2nd July, 2012, who may take up the said
Petition No.C-135/2006 himself or assign it to any other Judge of the
Family Court at Mumbai for denovo reconsideration from the stage
of arguments. The Concerned Judge shall dispose of the said
(4) No order as to costs.
(5) In view of the above order, Civil Application stands
18 of 18
Delhi HC- Maintenance rejected as the Woman is well qualified, employed earlier and quited the job on her own will.
CRL.REV.P. 344/2011 Page 1 of 8
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% RESERVED ON : 19.04.2012
PRONOUNCED ON: 14.05.2012
+ CRL.REV.P. 344/2011
DAMANREET KAUR ….. Petitioner
Through: Mr.Sugam Puri, Advocate
INDERMEET JUNEJA & ANR ….. Respondents
Through: Mr.Shyam Moorjani with
Mr.Taru Goomber, Mr.Pankaj Mendiratta
and Mr. Gaurav Goswami, Advocates.
HON’BLE MS. JUSTICE PRATIBHA RANI
1. The petitioner has preferred this revision petition
impugning the order dated 01.06.2011 passed by the learned
Addl. Sessions Judge, Delhi. The petitioner is wife of respondent
Indermeet Juneja. She filed a complaint case bearing No.352/3
under Section 12 of Protection of Women from Domestic
Violence Act, 2005 alongwith an application for monetary relief
under Section 23 of the Act. Her prayer for interim monetary
relief was declined vide order dated 18.11.2010 by the learned
2. Feeling aggrieved, she preferred an appeal against the
said order passed by the learned M.M. declining monetary relief
to her. In appeal, the learned ASJ vide the impugned order CRL.REV.P. 344/2011 Page 2 of 8
dated 01.06.2011 though declined the prayer of interim
monetary relief to the petitioner, partly allowed the appeal and
directed the respondent to pay a sum of Rs.10,000/- per month
from the date of filing of the petition towards contribution of
the respondent to maintain the child born out of the wedlock of
3. The grievance of the petitioner is that the learned ASJ
committed an error in declining the relief to her on the ground
that she was well qualified, capable to maintain herself and
had the capacity to work and that she had also been actually
earning in the past and was thus not entitled to get any
maintenance from the respondent. The petitioner has
submitted that earlier she was working with Met Life Insurance
Company since the birth of her child. The company due to its
relocation process had asked the petitioner to shift to
Bangalore. She could not accept this offer as it would not be
appropriate for the child to be uprooted from the place where
she has been residing and due to the fact that there were
visitation orders passed by the learned Sessions Court and had
the petitioner along with the child shifted to Bangalore, the said
orders could not have been complied with. As such the
petitioner turned down the offer of the company. The company
refused to change its policy and the petitioner was forced to
resign from her job.
4. The relieving letter placed on record by the petitioner is
dated 17.08.2010. As per this relieving letter the date of joining CRL.REV.P. 344/2011 Page 3 of 8
of the petitioner with Met Life was 07.01.2008 and her
designation at the time of leaving the company was Assistant
Manager (Service Delivery). She has been relieved pursuant to
her resignation letter dated 17.06.2010. This letter is not
accompanied by the resignation letter of the petitioner giving
the reasons for her resignation or the policy of the company to
shift her to Bangalore. It is relevant to mention here that while
the date of joining of petitioner with Met Life Insurance is
07.01.2008, the petitioner has given birth to a female child on
18.09.2008 i.e. in the same year and despite having infant
child to take care, she has served the company till she was
relieved on 17.08.2010.
5. The contention of petitioner is that in order to comply
with the order of the Court to allow the respondent to have
visitation right she could not shift to Bangalore. There is
nothing on record to indicate that at any point of time despite
continuous litigation going on between the parties she had
approached the Court for modification of the order regarding
visitation right. If the petitioner of her own prefers to resign,
she cannot take shelter under the Court order regarding
visitation right. With the passage of time the child has grown
up and is of school going age. Thus, it is more convenient for a
working mother to be in the job then to sit at home.
6. The learned ASJ has rightly declined the interim monetary
relief to the petitioner by holding that she was well educated
lady earning Rs.50,000/- per month and had chosen not to CRL.REV.P. 344/2011 Page 4 of 8
work of her own will though had the capacity to work and find a
suitable job for herself.
7. The learned ASJ in the impugned order has also corrected
the error appearing in the order of learned M.M declining the
monetary relief to the child for the reason that she was not the
petitioner before the Court. In para-10 of the impugned order,
the learned ASJ, after considering the facts and relevant case
law has concluded as under:-
“10. On perusal of record and after hearing the
submissions made at bar, I do not find any infirmity in the
impugned order as regards maintenance to the
appellant/wife is concerned. The question, whether
appellant/wife was forced to resign or she had resigned
herself is a question to be considered by the court during
trial and also the question whether the reasons given by
her for resigning were satisfactory or not. These are the
question to be gone into during evidence by the Learned
Trial Court. But, the observation of the Learned Trial Court
in para-10 i.e. “As far as the maintenance of the child is
concerned, since she is not the petitioner in the present
complaint, I would not be able to pass any orders as
regards the maintenance for the daughter of the parties”,
is erroneous and cannot be sustained. Admittedly on the
date, when application u/s. 12 of the „act‟ was filed by the
appellant/wife, child was in the custody of the husband.
Secondly, if the scheme of the act is seen as a whole, it is
obvious that it is not necessary that the child should be
impleaded as a party. Relief can be granted to the child or
for the benefit of the child without child being impleaded
as a party. The relief can be granted not only to the
aggrieved person, but also to the „child‟. On reading of
Section 20 and 21 of the „Act‟ it is clear that not only
aggrieved person, but any child or children may be
granted relief. The court has to keep in mind the interest
and the welfare of the child, even if child is not a party.
Therefore, orders as regard custody or the maintenance or
the welfare of the „children‟ can be passed even if child is CRL.REV.P. 344/2011 Page 5 of 8
not a party in the application filed under the „Act‟ before
Learned Metropolitan Magistrate. There is manifest error
in the impugned order as regards the observations in
para-10 of the impugned order, which is set aside. In view
of this, it is directed that Learned Trial Court shall decide
the quantum of maintenance for the minor daughter of
the parties after making a realistic assessment of the
needs of child, keeping in view the status of parties, on
the basis of material placed on record by the parties.
Respondent/husband submitted that he was ready and
willing to bear 50% of expenditure of the child. He can
show his bonafide by providing some assistance to the
child so that the child is brought up in an appropriate
atmosphere and so that she is provided with minimum
comfort, which the child requires.
11. In the circumstances, till further orders are passed by
the Learned Trial Court, I deem it expedient in the interest
of justice to direct the respondent/husband to pay sum of
Rs.10,000/- per month towards his contribution from the
date of filing of the petition to maintain the child. The
amount ordered to be paid by respondent/husband shall
not tantamount to be an expression on merits of the case.
Appeal stands disposed of accordingly. TCR be sent back
alongwith copy of this order. File be consigned to Record
8. In Smt.Mamta Jaiswal vs. Rajesh Jaiswal 2000(3)
MPLJ 100, the High Court of Madhya Pradesh while dealing
with identical situation observed that well qualified spouses
desirous of remaining idle, not making efforts for the purpose
of finding out a source of livelihood, have to be discouraged, if
the society wants to progress. For better appreciation, relevant
paragraphs of the said decision are reproduced hereunder:-
“In view of this, the question arises, as to in what way
Section 24 of the Act has to be interpreted. Whether a
spouse who has capacity of earning but chooses to remain
idle, should be permitted to saddle other spouse with his CRL.REV.P. 344/2011 Page 6 of 8
or her expenditure? Whether such spouse should be
permitted to get pendent lite alimony at higher rate from
other spouse in such condition? According to me, Section
24 has been enacted for the purpose of providing a
monetary assistance to such spouse who is incapable of
supporting himself or herself inspite of sincere efforts
made by him or herself. A spouse who is well qualified to
get the service immediately with less efforts is not
expected to remain idle to squeeze out, to milk out the
other spouse by relieving him of his or her own purse by a
cut in the nature of pendent lite alimony. The law does not
expect the increasing number of such idle persons who by
remaining in the arena of legal battles, try to squeeze out
the adversary by implementing the provisions of law
suitable to their purpose. In the present case Mamta
Jaiswal is a well qualified woman possessing qualification
like M.Sc. M.C M.Ed. Till 1994 she was serving in
Gulamnabi Azad Education College. It impliedly means
that she was possessing sufficient experience. How such
a lady can remain without service? It really put a big
question which is to be answered by Mamta Jaiswal with
sufficient cogent and believable evidence by proving that
in spite of sufficient efforts made by her, she was not able
to get service and, therefore, she is unable to support
herself. A lady who is fighting matrimonial petition filed for
divorce, cannot be permitted to sit idle and to put her
burden on the husband for demanding pendente lite
alimony from him during pendency of such matrimonial
petition. Section 24 is not meant for creating an army of
such idle persons who would be sitting idle waiting for a
„dole‟ to be awarded by her husband who has got a
grievance against her and who has gone to the Court for
seeking a relief against her. The case may be vice versa
also. If a husband well qualified, sufficient enough to earn,
sit idle and puts his burden on the wife and waits for a
‟dole‟ to be awarded by remaining entangled in litigation.
That is also not permissible. The law does not help
indolents as well idles so also does not want an army of
self made lazy idles. Everyone has to earn for the purpose
of maintenance of himself or herself, at least, has to make
sincere efforts in that direction. If this criteria is not
applied, if this attitude is not adopted, there would be a CRL.REV.P. 344/2011 Page 7 of 8
tendency growing amongst such litigants to prolong such
litigation and to milk out the adversary who happens to be
a spouse, once dear but far away after an emerging of
litigation. If such army is permitted to remain in existence,
there would be no sincere efforts of amicable settlements
because the lazy spouse would be very happy to fight and
frustrate the efforts of amicable settlement because he
would be reaping the money in the nature of pendent lite
alimony, and would prefer to be happy in remaining idle
and not bothering himself or herself for any activity to
support and maintain himself or herself. That cannot be
treated to be aim, goal of Section 24. It is indirectly
against healthiness of the society. It has enacted for
needy persons who in spite of sincere efforts and
sufficient effort are unable to support and maintain
themselves and are required to fight out the litigation
jeopardizing their hard earned income by toiling working
In the present case, wife Mamta Jaiswal, has been
awarded Rs.800/- per month as pendent lite alimony and
has been awarded the relief of being reimbursed from
husband whenever she makes up a trip to Indore from
Pusad, Distt. Yeotmal for attending Matrimonial Court for
date of hearing. She is well qualified woman once upon
time obviously serving as lecturer in Education College.
How she can be equated with a gullible woman of village?
Needless to point out that a woman who is educated
herself with Master‟s degree in Science, Masters Degree in
Education, would not feel herself alone in travelling from
Pusad to Indore, when at least a bus service is available as
mode of transport. The submission made on behalf of
Mamta, the wife, is not palatable and digestible. This
smells of oblique intention of putting extra financial
burden on the husband. Such attempts are to be
9. Section 20 (1) (d) of PWDV Act, 2005 specifies that upon
appropriate proof, the court may order the respondent to pay
maintenance to the aggrieved person and to her children and CRL.REV.P. 344/2011 Page 8 of 8
further permits the Court to pass an order of maintenance
under the PWDVA in addition to maintenance already granted
under section 125 Cr.P.C.
10. In State of Maharashtra vs. Sujay Mangesh
Poyarekar (2008) 9 SCC 475 it was held that powers of the
revisional courts are very limited and the revisional court
should not interfere unless there is a jurisdictional error or an
error of law is noticed.
11. The learned ASJ in the impugned order has rightly
observed that the question whether the petitioner-wife was
forced to resign or had resigned herself is a question to be
considered during trial and also the question whether the
reasons given by her for resigning from her job were
satisfactory or not.
12. It is worth mentioning here that the child for which
maintenance of Rs.10,000/- per month from the date of filing of
the petition has been ordered by Learned Addl. Sessions Judge
is just and fair and sufficient to meet the requirements of a
child which is aged about 3 ½ years.
13. There is no jurisdictional error or error in law in the
impugned order. The petition being devoid of merit is hereby
dismissed with no order as to costs.
MAY 14, 2012/„dc‟
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CM(M) 169/2009
Judgment Delivered on: 31.03.2011
RANI SETHI ….. Petitioner Through : Mr. G.K. Sharma, Adv.
SUNIL SETHI ….. Respondent Through : Mr. B.P. Singh, Adv.
HON’BLE MR. JUSTICE G.S.SISTANI
- Whether the Reporters of local papers may be allowed to seethe judgment? Yes
- To be referred to Reporter or not? Yes
- Whether the judgment should be reported in the Digest? Yes
G.S.SISTANI, J. (ORAL)
- Present petition is directed against the order dated 24.2.2009 passed by learned Additional District Judge, Delhi, on an application filed by respondent (husband) under Section 24 of Hindu Marriage Act, seeking maintenance from the petitioner (wife). By the abovesaid order, trial court has directed the petitioner (wife) to pay maintenance to the respondent (husband) @ `20,000/-, per month, and `10,000/- as litigation expenses and also to provide Zen Car for the use of the respondent (husband).
2. Learned counsel for the petitioner submits that learned trial court has exceeded its jurisdiction and has erroneously come to a finding with regard to the income of the petitioner. While it is not in dispute that petitioner is carrying out the business of running paying guest hostels in the name of Pradise PG, it is submitted by counsel for the
petitioner that the trial court has failed to consider the expenses of running the business which includes providing the students with boarding, lodging and transportation facilities and the earnings from the business are barely sufficient to maintain herself and her
two children, whom she is solely supporting. It is further contended that the financial condition of the petitioner has been ignored by the trial court. Counsel next submits that in fact the financial condition of the petitioner would be evident from the fact that petitioner is residing in a rented accommodation and is paying rent @ `12,500/-, per month. Mr.Sharma submits that trial court has completely lost sight of the fact that petitioner has to maintain and provide for two unmarried children – one son, who is 26 years of age, and a daughter, who is 24 years of age. Counsel next submits that petitioner has to not only provide for their maintenance but also plan their marriages and ensure a secured future for the children. Besides petitioner has to look after herself. It is further submitted that petitioner is medically unfit and is suffering from Leucoderma and arthritis and she has to spend on doctors, medicines and other tests. Copies of medical prescriptions have been placed on record in support of her contention.
3. Learned counsel for the petitioner submits that even otherwise the respondent is an able bodied person and he is in a position to maintain himself. Counsel further submits that respondent is carrying on a business in the name and style of Sethi Contractor
and accordingly the respondent is not entitled to any maintenance. A copy of the visiting card of Sethi Contractor has been placed on record. Stress has also been laid by counsel for the petitioner on the conduct and character of the respondent. Various instances have been cited in the present petition by the petitioner to show that respondent has an immoral character. It is also contended that learned trial court has relied purely on the guess work to assess the income of the petitioner and, thus, the impugned order is liable to be set aside.
4. Learned counsel for the petitioner submits that petitioner has subsequently been able to lay her hands on documents to show that respondent is earning and is able to maintain himself, however, the documents were neither filed along with this petition
nor the same were filed before the trial court at the relevant time. However, it is submitted by counsel for the petitioner that an application has already been moved before the trial court for modification of the impugned order and the petitioner will rely upon those documents before the trial court.
5. Learned counsel for the respondent submits that despite the fact that the business was set up by the respondent and the petitioner together initially, out of the funds received from selling ancestral property of the respondent, and the business is making a good profit, the trial court has been extremely conservative in granting only `20,000/-, per month, as maintenance, for the respondent. Counsel further submits that in the affidavit filed by the respondent on 20.1.2009 before the trial court, the respondent has enlisted the assets of the business, which are reproduced below:
(a) 300 room on rent fully equipped and furnished with double bed 18000×300.00
(b) Taa Bus 1.50 Seaters 54 lacs
(c) One Tata Winger (9+1) 8 lacs
(d) Three Maruti Vans 6 lacs
(e) One Maruti Zen 3 lacs
(f) One Accent Viva Car 4 lacs
(g) One Mess kitchen Modular with all apparatus, uttencils, equipments, etc. sufficient for 600 inmates
along with all other required faculties 8 lacs
(h) One Modern Zim with all equipments 2 lacs
(i) One General Store with stock 2 lacs
(j) One Cyber Café with four computers and other necessary equipments 1 ½ lacs
(k) House-hold articles including laptop, Fridge, Air Conditioners (3), Two LCD TVs, etc. Three bed rooms
fully equipped with one drawing room and kitchen with jewellery articles common family ornaments,
ancestral, etc. 20 lacs
6. It is submitted by counsel for the respondent that a perusal of the abovementioned assets of the business would show that petitioner is running a flourishing business. It is further submitted that the assets of the business, business investments and other personal assets owned by the petitioner would give some idea of the status of the petitioner. It is next submitted that petitioner had filed an additional affidavit before the trial court where she had herself admitted that she is running business in the name and style of Paradise Hostel for the purposes of which she has taken 81 flats in two societies on rent, for which she is paying `5,07,000/- as rent;`65,800/- as maintenance + electricity and other expenses towards hostel, bus payments, etc. Petitioner has also admitted in the additional affidavit that she is paying `25,000/-, per month, towards
house keeping; `48,000/-, per month, towards kitchen expenses; `50,000/- towards the salary of drivers, electrician, plumbers, etc; `2,50,000/-, per month, towards Hostel‟s Ration, Grocery Expenditure, for a strength of 386 students.
7. Learned counsel for the respondent submits that respondent was
unceremoniously thrown out of his house and it is only by the order
of the court that few articles were returned, which have been
noticed by the trial court in para 12 of its order. Relevant portion of
which reads as under:
“… an application in the Court for taking his clothes and
chapels lying at the house of the non applicant and the non
applicant has given only two pairs of pants and shirts, one
kurta paijama, three bainyans, two underwears and one pair
of chappals and two sweaters in the court on 21.1.2009 and
other articles of the applicant mentioned in his application
have not yet been given by the non-applicant/ wife.”
8. It is next submitted that the respondent tried setting up another
business and starting life afresh. However, the business was
unsuccessful and the partnership which was entered into for the
purpose of business was dissolved on 1.12.2009. The respondent
has placed a copy of the dissolution of partnership deed dated
1.12.2009 in support of his contention. Counsel further submits
that there is no infirmity in the order of the trial court, which would
CM(M)NO.169/2009 Page 6 of 14
call for interference in the proceedings under Article 227 of the
Constitution of India.
9. I have heard counsel for the parties, who have also drawn the attention of the Court to various documents placed on record as also the affidavits filed by both the parties before the trial court. In this case, the undisputed facts, which emerge, are that marriage between parties was solemnized on 6.12.1982. A son, who is at present 26 years of age, and a daughter, who is at present 24 years, were born out of their wedlock. Admittedly, the parties started residing separately since September, 2006, and thereafter with the intervention of friends and relations, the petitioner and respondent stayed together for a brief period in the matrimonial home, however, the parties again separated on 6.9.2008. Allegation of the respondent is that he was thrown out of the matrimonial home, which prima facie appears to be correct as few of his articles were handed over to him on 20.1.2009 in the Court, as observed by the trial court.
10. It is settled position of law that the law makes provision to strike a balance between the standard of living, status and luxuries that were enjoyed by a spouse in the matrimonial home and after separation. It has been held by the Apex Court that the needs of the parties, capacity to pay etc. must be taken into account while deciding quantum of maintenance.
11. In the case of Jasbir Kaur Sehgal (Smt.) v. District Judge, Dehradun & Others, reported at (1997) 7 Supreme Court Cases 7, it has been held as under:
“8. The wife has no fixed abode of residence. She says she is living in a Gurudwara with her eldest daughter for safety. On the other hand the husband has sufficient income and a house to himself. The Wife has not claimed any litigation expenses in this appeal. She is aggrieved only because of the paltry amount of maintenance fixed by the courts. No set formula can be laid for fixing the amount of maintenance. It has, in the very nature of things, to depend on the facts and circumstance of each case. Some scope for liverage can, however, be always there. Court has to consider the status of the parties, their respective needs, capacity of the husband to pay having regard to his reasonable expenses for his own maintenance and of those he is obliged under the law and statutory but involuntary payments or deductions. The amount of maintenance fixed for the wife should be such as she can live in reasonable comfort considering her status and the mode of life she was used to when she lived with her husband and also that she does not feel handicapped in the prosecution of her case. At the same time, the amount so fixed cannot be excessive or extortionate. In the circumstances of the present case we fix maintenance pendente lite at the rate of Rs.5,000/- per month payable by respondent-husband to the appellant-wife.”
12. A Single Judge of this Court in the case of Bharat Hegde v. Saroj Hegde, reported at 140 (2007) DLT 16, had culled out following 11 factors, which can be taken into consideration for deciding the application under Section 24 of Hindu Marriage Act, relevant portion of which reads as under:
8. Unfortunately, in India, parties do not truthfully reveal their income. For self employed persons or persons employed in the unorganized sector, truthful income never surfaces. Tax avoidance is the norm. Tax compliance is the exception in this country. Therefore, in determining the interim maintenance, there cannot be mathematical exactitude. The court has to take a general view. From the various judicial precedents, the under noted 11 factors can be culled out, which are to be taken into consideration while deciding an application under Section 24 of the Hindu Marriage Act. The same are:
(1) Status of the parties.
(2) Reasonable wants of the claimant.
(3) The independent income and property of the claimant.
(4) The number of persons, the non applicant has to maintain.
(5) The amount should aid the applicant to live in a similar life style as he/she enjoyed in the matrimonial home.
(6) Non-applicant‟s liabilities, if any.
(7) Provisions for food, clothing, shelter, education, medical attendance and treatment etc. of the applicant.
(8) Payment capacity of the non-applicant.
(9) Some guess work is not ruled out while estimating the income of the non-applicant when all the sources or correct sources are not disclosed.
(10) The non-applicant to defray the cost of litigation.
(11) The amount awarded under Section 125, Cr.P.C. is adjustable against the amount awarded under Section 24 of the Act.
13. The Supreme Court of India in the case of Jasbir Kaur (Smt.) (supra), has also recognized the fact that spouses in the proceedings for maintenance do not truthfully disclose their true income and therefore some guess work on the part of the Court is permissible. Further the Supreme Court has also observed that “considering the diverse claims made by the parties one inflating the income and the other suppressing an element of conjecture and guess work does enter for arriving at the income of the husband. It cannot be done by any mathematical precision”.
14. Further in a recent decision the Apex Court in Neeta Rakesh Jain v. Rakesh Jeetmal Jain reported at AIR 2010 SC 3540, has laid guidelines which the courts may keep in mind at the time of fixing the quantum of maintenance.
“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. While, in this case, petitioner has placed copies of income tax returns for the assessment years 2007-2008 on record, a copy of balance sheet as on 31.3.2007 as also a copy of Profit and Loss Account for the year ended as on 31.3.2007, have also been placed on record. The Profit and Loss Account of the guest house of the petitioner reads as under: “PARADISE PG HOUSE PROP. MRS. RANI SETHI B-75, DUGGAL COLONYKHANPUR, NEW DELHI – 110062 PROFIT & LOSS ACCOUNT FOR THE YEAR ENDED ON 31.03.2007 PARTICULARS AMOUNT PARICULARS AMOUNT
To Establishment 695900.00 By Receipts 8380178.00
To Rent for Flats 3191660.00
” Mess Expenses 1521958.00
” Electricity & Water 295800.00
” Bank Charges 39870.63
” Staff Welfare 51270.00
” Transportation 478756.00
”Telephone Expenses 229234.00
” Vehicle Running & Maintenance 252859.93
” Hire Charges 121000.00
” Bedsheets & Lined 152540.00
” Medicines & Doctor‟s Fee 24128.00
” Printing & Stationery 42190.00
” Travelling & Conveyance 44262.00
” Insurance 15078.00
” Misc. Expenses 37383.00
” Security Expenses 164500.00
” Repair & Maintenance 286856.00
” Interest on Car Loan Amount
” Amount written Off
” Audit Fee 23697.00
” Depreciation 16200.00
” Net Profit transferred to Capital 191222.07
16. A perusal of the Profit and Loss Account shows that this business is
incurring a profit of `83,80178/- for the year ending on 31.3.2007.
17. The affidavits filed by both the petitioner and the respondent
before the trial court also unfold the details of the business, which
was initially being carried out by both the petitioner and the
respondent and subsequently admittedly by the wife along.
Relevant portion of the affidavit of the respondent reads as under:
“Affidavit of Sunil Sethi s/o late J.N. Sethi R/o A-43, Street No.10, Madhu
Vihar, I.P. Extension, Delhi-110092 (however presently without any
I the above-named deponent do hereby solemnly affirm on oath and state
1. I say that being petitioner in the above mentioned case, I am
entitled to swear the present affidavit.
2. I say that the respondent is proprietor of M/s Paradise P.G. House
Informative Society, Sector-VI, Greater Noida, (U.P.).
3. That the said firm established by me and started with the capital
investment of Rs.8,00,000/- in the year of 2003 which I had got
from my share in my ancestral/parental property.
4. I say that the total asset of the said firm owned by the respondent
is about Rs.1,00,000/- approximately. This assessment is dated
05.09.08 when I forced to leave the business.
5. I say that asset of the respondent’s firm as on 05.09.08 were as
S. Particulars Approx.
CM(M)NO.169/2009 Page 11 of 14
1. 300 room on rent fully equipped and
furnished with double bed
2. Tata Bus 1.50 Seaters
3. One Tata Winger (9+1 seater)
4. Three Maruti Vans
5. One Maruti Zen
6. One Accent Viva Car
7. One Mess Kitchen Modular with all apparatus, utensil, equipments etc.sufficient for 600 inmates along with all other required facilities 8 lacs
8. One Modern Zim with all equipments2 lacs
9. On General Store with stock 2 lacs
10. One Cyber Cafe with four computers
and other necessary equipments
1 ½ lacs
11. House-hold articles including Laptop,
Fridge, Air Conditions (3), Two LCD TVs
etc. Three bed rooms fully equipped
with one drawing room and kitchen with
jewellery articles common family
ornaments, ancestral etc.
6. I say that on 05.05.08, the liability over the firm namely M/s Paradise
was namely Rs.15,00,000/- approx.”
18. The petitioner herein also filed her affidavit before the trial court.
Affidavit of petitioner reads as under:
“I, Rani Sethi w/o Mr. Sunil Sethi r/o Rajdhani Nikunj, Plot no.94, I.P.
Extension, Patparganj, Delhi do hereby solemnly affirm on and declare as
B. That following are the details of the monthly expenditure incurred by
me in my business of running Paradise Hostel.
i. That I have hired on rent 50 and 31 flats respectively in two
societies namely informatics and Khushboo whose details
are as follows:
Rent of Flats Maintenance Electricity Bills
Informatics Rs.2,59,000/- Rs.34,800/- +Electivity Bills
Khusboo Rs.2,48,000/- Rs.31,000/- +Electivity Bills
CM(M)NO.169/2009 Page 12 of 14
Total Rent Rs.5,07,000/- Rs.65,800/- +Electivity
C. That the expenditure incurred and the monthly installments due for
the following are as under:
Hotel Bus EMI-22,216/- PER per month + 9 Lakh
invested in Bus down payment.
Winger’s EMI-10,450/- per month + 2,60,000/-
Viva’s EMI-10209/- per month
Zen’s EMI-10,540/- per month
Van’s EMI-17,365/- per month
Total EMI-71,365/- per month
D. Staff Salary – Home Keeping 25,000/- per month
Kitchen 48,000/- per month
Drivers and electrician
Total Salary of Staff 1,23,000/- per month
Hostel’s Ration + Grocery Exp.+ Snacks item etc. 2,50,000/- per month
for 386 strength of students
Maintenance Exp. 30,000/- per month
Diesel for Bus 25,000/- per month
Diesel for Generator- Informatics 38,800/- per month
Khushboo 19,400/- per month
House rent 12,500/- per month
House Maintenance 15,000/- per month+Electricity bill
Transport charge of hostel 27,000/- per month
Three buses on hire
E. That it is also submitted that session starts in August of every month.”
19. Taking into consideration the documents, which have been filed on
record of this court and the affidavit of the petitioner, the balance
sheet, the Profit and Loss Account of the guest house and the
income and expenditure of the guest house, it is clear that the
CM(M)NO.169/2009 Page 13 of 14
petitioner has a substantial income from the business, which was at
one time started jointly by both the petitioner and the respondent.
The purpose of section 24 of Hindu Marriage Act is to provide
support to a spouse who has no independent source of income and
is incapable of maintaining himself/herself. It is trite law that the
term „support‟ is not to be construed in a narrow manner so as to
mean bare subsistence. It means that the other spouse, who has no
independent source of income, is provided with such maintenance
so as to live in a similar status as was enjoyed by them in their
matrimonial home. It is the purpose of section 24 that the wife or
the husband who has no sufficient source of income for her or his
support or for the expenses of the proceedings must be provided
with such reasonable sum that strikes equity between the spouses.
20. Taking into consideration the facts of this case and the settled
position of law, I am of the view that learned trial court has
correctly considered the relevant factors and has also rightly relied
upon the judgments of this court as also the Apex Court. I find no
infirmity in the order dated 24.2.2009, which requires interference
by this court in the proceedings under Article 227 of the
Constitution of India. Accordingly, present petition is without any
merit and the same is dismissed.
21. Interim order dated 4.3.2009 stands vacated. All arrears shall be
cleared by the petitioner within a period of three months from today, which shall be paid by the petitioner to the respondent in equal installments and the first installment shall be paid by the petitioner within 15 days from today.
CM NO.3129/2009 (STAY).
22. Application stands dismissed in view of the orders passed in the petition.
G.S. SISTANI, J.
March 31, 2011
The Noble Justice Dhingra in action again. This time delivers justice in a HMA case, Parnab Kumar Chakarborthy Vs Ruma Chakarborthy-2008
Here is what he had to say:
- 3. The petitioner in his petition has stated that the learned Court has taken into account his gross salary while his net salary after deduction was hardly Rs.5,000/-. He had to maintain two houses. He was working in Bhiwadi in Rajasthan as Shift In charge, his daughter from the earlier deceased wife was living at his ancestral house at Rai Barelli with his ailing mother. Thus, he had to maintain two units; one at Rai Barelli and other at Rajasthan. He also pleaded that the learned ADJ had not taken into account the fact that the wife was a professional beautician, who had done diploma in beauty-culture and hair dressing and in the bio data supplied to him at the time of marriage, it was stated that she was a freelance beautician doing the work of beautician. He further stated that the account of expenditure given by the wife would show that she was living in luxury, which was not possible out of the meager income of her father, who was a retired Naval Officer and since she was qualified and was spending a lot so, there was a presumption that she was earning and she had not come to the Court with clean hands.
IN THE HIGH COURT OF DELHI AT NEW DELHI
KAVITA PRASAD ….. Petitioner
Through: Mr. S.D. Singh, Adv.
RAM ASHRAY PRASAD ….. Respondent
CORAM:HON’BLE MR. JUSTICE SHIV NARAYAN DHINGRA
O R D E R
The petitioner who is an MBBS qualified Doctor and admittedly had been in practice before, claims that she was sitting at home despite being a qualified Doctor and does not work. The petitioner claimed maintenance against her husband who is in service. The Trial Court granted maintenance of Rs.4,000/- per month. This petition is made against observation of the Trial Court that she was working somewhere and earning around Rs.8,000 to 10,000/- PM and that the maintenance granted by the Trial Court was made subject to adjustment of the maintenance being received by her under Section 125. Since counsel for the petitioner states that petitioner is not working anywhere, despite being a qualified Doctor, I consider that as she is receiving maintenance from husband, the Court should not allow her experience and qualification to go waste. I consider that she should be directed to work as a honorary Doctor in some public welfare institute or school free of charges where she can take care of health of the poor people. Let her come to Court and give an undertaking that she was prepared to work without charging anything in any institution named by this Court around her house minimum 5 hours a day and 6 days a week, so long she receives maintenance from her husband on the plea of being unemployed.
List on 23rd October, 2008.
SHIV NARAYAN DHINGRA,J
OCTOBER 01, 2008
Chand Dhawan Vs Jawaharlal Dhawan [ SC ]
SMT. CHAND DHAWAN
JAWAHARLAL DHAWAN  RD-SC 303 (11 June 1993)
YOGESHWAR DAYAL (J)
CITATION: 1993 SCR (3) 954 1993 SCC (3) 406 JT 1993 (4) 22 1993 SCALE (3)1
Hindu Marriage Act, 1955-S. 25 and Ss. 9 to 14, 24 & 28-`Any decree’ in S. 25-Dismissing of matrimonial petition, held, does not constitute `only decree’ for award of permanent maintenance or alimony–Marital status has to be affected or disrupted for maintenance to be awarded–Evidence Act, 1862, s. 41 Hindu Marriage Act, 1955–S.25-Hindu Adoptions and Maintenance Act, 1956–S.18–Held, Court cannot grant relief of maintenance simplicitor obtainable under one Act in proceedings under the other-Code of Criminal Procedure 1973, s. 125.
Interpretation of Statutes-Hindu Marriage Act. 1955-S. 25- Hindu Adoptions and Maintenance Act, 1956-S. 18-Held, where both statutes codified and clear on their subjects, liberality of interpretation cannot permit interchangeabil- ity so as to destroy distinction.
The parties were married in 1972 in Punjab. In 1985, a petition for divorce by mutual consent was filed in court at Amritsar The appellant-wife alleged that she was not a consenting party, and the petition was dismissed in 1987 following an agreement on the basis of which she would be put back in the matrimonial home. However, barely three months later, the respondent husband filed a regular petition for divorce at Ghaziabad inter alia alleging adultery against his wife. The appellant-wife refuted the charge. The Court granted her maintenance pendente lite at Rs. 1,000 p.m. The husband not paving this amount, the divorce proceedings stand stayed.
On 22nd March, 1990 the appellant moved the District judge, Amritsar and was granted Rs. 6,000as litigation expenses and Rs. 2,000as maintenance pendente lite from the date of application under S. 24. She also claimed permanent alimony and maintenance under S. 25 of the Hindu Marriage Act, 1955.
On appeal, the High Court held that an application under S.
25 was not 955 maintainable as the matrimonial court at amritsar had not passed any decree for restitution of conjugal rights, judicial separation, nullity or divorce. Sequelly it quashed the order under S. 24 of the Act.
Dismissing the appeal, this Court
HELD:The right of permanent maintenance in favour of the husband or the wife is dependent (in the Court passing a degree of the kind envisaged under Ss. 9to 14 of the Act.
In (other words, without the marital status being affected or disrupted by the matrimonial court under the Hindu Marriage Act the claim (of permanent alimony was not to be valid as ancilliary or incidental to such affectation or disruption.
Kadia Martial Purshotham v. Kadia Lilavati Gokaldas AIR 1961 Guj 202; Shantaram Gopalshet Narkar v. Hirabai, AIR 1962 Bom 27 Minarani Majumdar v. Dasarath Majumdar AIR 1963 Cal 428;
Shantaram Dinkar Karnik v. Malti Shantaram Karnik AIR 1964 Bom 83; Akasam Chinna Babu v.Akasam Parbati, AIR 1967 Ori 163; Gurcharan Kaur v. Ram Chand, AIR 1979 P & H 206;
Darshan Singh v. Mst. Daso., AIR 1980 Raj 102; Smt.
Sushama v. Satish Chander, AIR 1984 Del 1; Vinod Chandra Sharma v. Smt. Rajesh Pathak, AIR 1988 All 150 and Ranganatham v. Shyamala AIR 1990 Mad 1, affirmed.
Smt. Swaran Lata v.Sukhvinder Kumar (1986) 1 Hindu LR 363;
Sadanand Sahadeo Rawool v. Sulochana Sadanand Rawool, AIR 1989 Bom 220; Surendra Singh Chauhan v. Mamta Chauhan, 11 1990 Divorce & Matrimonial Cases 208; Modilal kalaramji Jain v. Lakshmi Modilal Jain AlR 1991 Bom 440; and Shilla Jagannadha Prasad v. Smt. Shilla Lalitha Kumari 1988 Hindu LR 26, overruled.
Durga Das v. Smt. Tara Rani, AIR & H 141, referred to.
2.A Court intervening under the Hindu Marriage Act undoubtedly has the power to grant permanent alimony or maintenance, if that power is invoked at the juncture when the marital status is affected or disrupted. It also retains the power subsequently to be invoked on application by a party entitled to relief. A nd such order, in all events, remains within the jurisdiction of that court, to be altered or modified as future situations may warrant.
3.While sustaining her marriage and preserving her marital status, a Hindu wife’s claim to maintenance is codified is S.18 of the Hindu Adoptions 956 and Maintenance Act, 1956 and must necessarily be agitated thereunder.
4.The court is not at liberty to grant relief of maintenance simplicitor obtainable under one Act in proceedings under the other. As is evident, both the statutes are codified as such and are clear on their subjects and by liberality of interpretation inter-changeability cannot be permitted so as to destroy the distinction on the subject of maintenance.
Carew, & Co. v. Union of India  2 SCC 791 and Motor Owners’ Insurance Co. Ltd. v. Jadavjit Keshavji Modi  4 SCC 660, referred to.
5.When distinctive claims are covered distinctly under two different statutes, choosing of one forum or the other, are not mere procedural technicalities or irregularities. These are matters which go to the root of the jurisdiction. The matrimonial court, a court of special jurisdiction. is not meant to pronounce upon a claim of maintenance without having to go into the exercise of passing a decree which implies that unless it goes onwards, Moves or leads through, to affect or disrupt the marital status between the parties.
By rejecting a claim, the matrimonial court does make an appealable decree. in terms of section 28, but neither affects nor disrupts the marriage. It certainly does not pass a decree in terms of section 25 for its decision has not moved or done anything towards, or led through, to disturb the marriage, or to confer or to take away any legal character or status.
CIVIL APPELLATE JURISDICTION: Civil Appeal Nos. 2653-54 of 1991.
From the Judgment and Order dated 15.2.91 of the Punjab and Haryana High Court in Civil Revision Nos. 2998 and 2919 of 1990.
D.V. Sehgal and N.K. Aggarwal for the Appellant.
G.L, Saghi, P.P. Tripathi and Suchinto Chatterji for the Respondent.
The Judgment of the Court was delivered by PUNCHHI, J. The point which requires determination in these two appeals, arising from a common judgment and order dated February 15, 1991 of a Division Bench of the Punjab and Haryana High Court at Chandigarh, in Civil Revision Nos.
2918 and 2919 of 1990 is, whether the payment of alimony is admissible 957 without the relationship between the spouses being terminated.
The wife-appellant was married to the husband-respondent on September 19,1972 at Amritsar, in the State of Punjab.
Three children were born from the wed lock and are at present living with their father. Out of them two are males, their respective years of birth being 1973 and 1980 and the third is a female born in the year 1976. On 28-8- 1985 a petition under section 13-B of Hindu Marriage Act, 1955 (hereafter referred to as the Act’) seeking divorce by mutual consent was received by the court of the Additional District Judge, Amritsar purported to have been failed jointly by the two spouses. It was stated therein that the parties had been living separately for over a year due to incompatibility of temperament and their effort to settle their differences amongst themselves, or with the aid of friends and relatives, had been futile. On receipt the petition was kept pending, as was the requirement of section 13-B of the Act. According to the wife she was not a consenting party to the filing of such petition at all. Her version was that the husband had duped her in obtaining her signatures on blank papers on a false pretext and in turn had employed those papers in the said petition for divorce.
On coming to know of the pendency of the petition, she immediately filed objections before the court, obstructing the grant of petition. The respective pleas of the parties were put to issue and evidence was led. According to the wife some understanding later was reached between the parties on the basis of which she was to be put back in the matrimonial home and thus the petition was got dismissed on 19-8-1987, on the basis of the joint statement of the parties before the Additional District Judge, Amritsar which was to the following effect:
“We agree that applications under sections 24 and 25 of Hindu Marriage Act may be dismissed.
We also agree that since the parties have not been able to make a joint statement within a period of six months of the original petition, the main petition under section 13B of the Hindu Marriage Act may be dismissed.
Otherwise too, the parties to the marriage do not want to proceed with their main application under section 13 of the Hindu Marriage Act and the same be also dismissed and the parties may be left to bear their own costs.
On the basis of the above statement, the court passed the following order, the same day:
“The applicant and counsel for the parties have made their statements recorded separately the main petition under section 13 and 958 also applications under sections 24 and 25 of the Hindu- marriage Act are dismissed as withdrawn. The parties are left to bear their own costs. The file be consigned.” It appears that the dismissal of the petition under section 13-B led only to a temporary truce, and not peace as hoped.
Rehabilitation in the matrimonial home evaded the wife. The husband, who in the meantime had established his business at Ghazibad in Utter Pradesh, barely three months after the dismissal of the petition under section 13-B. approached the District Court at Ghaziabad in a regular petition for divorce under section 13 of the Act levelling, amongst others, allegations of adultery against the wife. To meet the offensive the wife refuted the charge of adultery and prayed to the Ghaziabad Court grant of maintenance pendente lite, which the Court fixed at Rs. 1000 per month. It appears since the husband had obstacled payment of maintenance pendente lite, divorce proceedings stand stayed under orders of the High Court of Allahabad, until the order of grant of maintenance pendente lite was obeyed. The matter thus stands stagnated there.
The wife then went in an offensive. She moved the court of Additional District Judge, Amritsar on 22-3-1990, under section 15 of the Hindu Marriage Act for the grant of permanent alimony on the plea that she was facing starvation, when her husband was a multi-millionaire, having cars, telephone facilities and other amenities of life.
Simultaneously she moved the court under section 24 of the Hindu Marriage Act for maintenance pendente lite and litigation expenses. After a grim contest between the parties the Additional District Judge, Amritsar on September 20, 1990 allowed the petition under section 24 of the Act granting her a sum of Rs. 6000 as litigation expenses and Rs. 2000 per month as maintenance pendente lite, from the date of application. The husband challenged the said order of grant in revision before the High Court of Punjab and Haryana at Chandigarh. The wife too approached the High Court in revision seeking enhancement of sums under both counts. Both the revision petitions being referred to a larger bench were disposed of by the common judgment under appeal sustaining the objection of the husband that an application under section 25 of the Act was, in the facts and circumstances, not maintainable; the Matrimonial Court at Amritsar, in the earlier litigation, having not passed any decree of the variables known as Restitution of Conjugal Rights, Judicial Separation, Nullity of Marriage, or Divorce, so as to quash proceedings under section 25 and sequally quashing the order under section 24 of the Act granting litigation expenses and maintenance pendente lite.
Hence these appeals.
959 Section 25 of the Act, as it now stands, after amendment by Act 68 of 1976 is reproduced hereunder:
“25 PERMANENT ALIMONY AND MAINTENANCE (1) Any court exercising jurisdiction under this Act may, at the time of passing- any decree or at any time subsequent thereto, on application made to it for purpose by either the wife o r the husband, as the case may be, order that the respondent shall pay to the applicant for her or his maintenance and support such cross sum or such monthly or periodical sum for a term not exceeding the life of the applicant as, having regard to the respondent’s own income and other property, if any, the income and other property of the applicant, [the conduct of the parties and other circumstances of the case], it may seem to the court to be just, and any such payment may be secured, if necessary, by a charge on the immovable property of the respondent.
(2)If the court is satisfied that there is, a change in the circumstances of either party at any time after it has made an order under sub- section (1), it may at the instance of either party, very, modify or rescind any such order in such manner as the court may deem just.
(3)If the court is satisfied that the party in whose favour an order has been made under this section has remarried or, if such party is the wife, that she has not remained chaste, or, if such party is the husband, that he has had sexual intercourse with any woman outside wedlock, [it may at the instance of the other party very, modify or rescind any such order in such manner as the court may deem just].” It is relevant to reproduce Section 28 as well:
“28 APPEAL FROM DECREES AND ORDERS- (1) All decrees made by the court in any proceeding under this Act shall, subject to the provisions of sub-section (3) be appealable as decrees of the court made in the exercise of its original civil jurisdiction, and every such appeal shall lie to the court to which appeals ordinarily lie from the decisions of the court given in the exercise of its original civil jurisdiction.
(2) Orders made by the court in any proceeding under this Act, under 960 section 25 or Section 26 shall, subject to the provisions of sub-section (3), be appealable if they are not interim orders and every such appeal shall lie to the court to which appeals ordinarily lie from the decisions of the court given in exercise of its original civil jurisdiction.
(3) There shall be no appeal under this section on the subject of costs only.
(4) Every appeal under this section shall be preferred within a period of thirty days from the date of the decree or order.” Right from its inception, at the unamended stage, the words “at the time of passing any decree or any time subsequent thereto” posed difficulty. The majority of the High Courts in the country took the view that those words indicated that an order for permanent alimony or maintenance in favour of the wife or the husband could only be made when a decree is passed granting any substantive relief and not where the main petition itself is dismissed or withdrawn. It was also gathered that if no request for alimony was made at the time of passing the decree the same relief could be sought subsequently on an application. The relief of permanent alimony was deduced to be ancilliary or incidental to the substantive relief, and it was given to the party to whom such relief was due. The expression “any decree” was viewed to have been used having regard to the various kinds of decrees such as decree for Restitution of Conjugal Rights, Judicial Separation, Nullity of Marriage, and Divorce, which could be passed either on contest or consent. Some of the High Courts also had occasion to distinguish between the expression “passing any decree” referred to in section 25 (1) with “decrees made” referred to in section 28 providing for appeals from decrees and orders made by the Court in any proceeding under the Act, and such decrees being appealable, as decrees of the Court made in exercise of its original civil jurisdiction. It led to the determination of the question whether the denial of relief under the Act, when making a decree in the sense appealable under section 28, could be it a decree passed within the meaning of Section 25 entitling the respective spouses to claim permanent alimony thereunder. On this question too there has been rife a difference of opinion.
A Division Bench of the Gujarat High Court in Kadia Harilal Purshottam v. Kadia Lilavati Gokaldas AIR  Gujarat 202; ruled that the words “at the time of passing any decree or any time subsequent thereto” occurring in section 25 meant passing of any decrees of the kind referred to in the earlier provisions of the Act and not at the time of dismissing the petition for any relief provided in those 961 sections, or any time subsequent thereto. It was viewed that the expression “any decree” did not include an order of dismissal and that the passing of an order of dismissal of the petition could not be regarded as the passing of decree within the meaning of section 25. On that view a petition for permanent alimony preferred by the wife was dismissed when the petition of the husband for restitution of conjugal rights had been dismissed.
In Shantaram Gopalshet Narkar v. Hirabai, AIR  Bombay 27 Vol. 49, a learned Single Judge of the Bombay High Court took the view that in order to confer jurisdiction upon the court to proceed under section 25(1) there must be a decree as contemplated under the Hindu Marriage Act and one of the decrees can. be under section 10(1) (B). And when the petition was allowed to be withdrawn, there was no decree passed in favour of the husband, and if there was no decree, the court had no jurisdiction to pass any order granting permanent alimony to the wife under section 25(1).
In Minarani Majumdar v. Dasarath Majumdar AIR  Calcutta 428 Vol. 50, a Division Bench of the Calcutta High Court ruled that an order dismissing a petition by the husband for divorce under section 13 is not a decree within the meaning of section 25 and as such when no substantive relief is granted under sections 9 to 14, there is no passing of a decree as contemplated by section 25 and hence no jurisdiction to make an order for maintenance under the said section. Harilal’s case (supra) of the Gujarat High Court was noticed and relied upon.
A learned Single Judge of the Bombay High Court in Shantaram Dinkar Karnik v. Malti Shantaram Karnik, AIR  Bombay 83 – vol. 51 relying on the earlier decision of that court in Shantaram Gopalshet’s case (supra) and kadia Hiralal’s case (supra) reaffirmed the view that the expression “passing of any decree” only referred to passing of any decrees provided for in section 9 to 13 of the Act, even though technically speaking dismissal of a suit or a petition may be called a decree but not for the purpose of section 25 confering jurisdiction on the Matrimonial Court to grant permanent alimony.
A Division Bench of the Orissa High Court in Akasam Chinna Babu v. Akasam Parbati & Another AIR  Orissa 163 – Vol. 54 denied the relief of permanent alimony when the petition for divorce of the husband had been dismissed. The views of the Bombay High Court and the, Gujarat High Court above referred to were taken in aid to get to that view.
A three-Judge full bench of the Punjab and Haryana High Court in Durga 962 as v. Smt. Tara Rani,AIR (1971) Punjab and Haryana 141 – Vol. 58, in a different context, while determining the question whether a party to a decree or divorce could apply for maintenance under sub-section (1) of section 25 of the Act after which decree has been granted, ruled that the proceedings for grant of permanent alimony were incidental to the main proceeding and as such an application for alimony could be made even after the grant of the decree for divorce.
A learned Single Judge of that Court, however, in Gurcharan Kaur v. Ram chand AIR 1979 Punjab and Haryana 206 Vol. 66 even while relying, on the full bench decision afore- referred went on to deny permanent alimony to the wife hose claim for decree of Nullity of Marriage stood dismissed and on that basis the petition for alimony was held not maintainable.
In Darshan Singh vs. Mst. Daso AIR 1980 Rajasthan 102 – Vol. 67 a learned single Judge of the Rajasthan High Court made a distinction between the expression “passing any decree” occurring in section 25 and the expression decree made” under section 28. He viewed that the former expression meant granting any relief of the nature stated in sections 9 to 13 while the later meant granting or refusing the relief. In other words, it meant that passing of any decree as to mean granting any relief, and the making of any decree was to mean granting or refusing any relief.
A Division Bench of the Delhi High court too in Smt. Sushma v. Shri Satish Chander AIR 1984 Delhi 1 Vol. 71 taking stock of the above-referred to views of the Rajasthan, Orissa.
Bombay, Calcutta and Gujarat High Courts affirmedly took the view that the passing of the decree in section 25 meant the passing of a decree of divorce, Nullity, Restitution of Conjugal Rights or Judicial Separation and not the passing of a decree dismissing the petition. It was further held that if the petition fails then no decree is passed, i.e., the decree is denied to the applicant and therefore alimony cannot be granted in a case where a decree is refused because in such a case the marriage subsists. The word “decree” in matrimonial cases was held to have been used in a special sense different from that in which it is used in the Civil Procedure Code.
Following Delhi High Court’s decision in Sushma’s case (supra), a learned Single Judge of the Allahabad High Court in Vinod Chandra Sharma v. Smt. Rajesh Pathak AIR 1988 Allahahad 150 – Vol. 75 opined that when an application for divorce is dismissed, there is no decree passed and obviously therefore alimony cannot he granted because in such a case the marriage subsists.
963 A learned Single Judge of the Madras High Court in Ranganatham v. Shyamla AIR 1990 Madras 1- Vol. 77 too following the above decisions held that the existence of any of the decrees referred to in sections 9 to 13 is a condition precedent to the exercise of jurisdiction under section 25 (1) of the Act and the granting of ancilliary relief for permanent alimony and maintenance, when the main petition was dismissed, was not permissible.
A divergent view, however, was struck by a learned Single Judge of the Punjab and Haryana High Court in Smt. Swaran Lata v. Sukhvinder Kumar(1986) 1 Hindu Law Reporter 363 taking the view that when the rights of the parties stand determined conclusively with regard to matters in controversy, irrespective as to whether relief is granted or not, it culminates in a decree and on the basis of that decree, the wife would be entitled to claim maintenance or permanent alimony under section 25 of the Act. Not only was on such interpretation of sections 25 and 28 the view taken but liberality of interpretation was injected to justify the view. It was expressed that when the right of the wife to maintenance was assured under section 125 of the Code of Criminal Procedure, 1973 and section 18 of the Hindu Adoptions and Maintenance Act, 1956 and when that right of the wife was not being disputed, the court, in order to avoid multiplicity of proceedings could give effect to that right, wherever possible, in a proceeding under section 25 of the Act itself. There the objection of the husband to the jurisdiction was termed as technical and the maintainability of claim under section 25 was upheld.
A learned Single Judge of the Bombay High Court in Sadanand Sahadeo Rawool v. Sulochana Sadanand Rawool, AIR 1989 Bombay 220- Vol. 76 also took a similar view and based his decision on “necessity of the times” expressing that technicalities should not be allowed to away any court. In the situation, the dismissal of petition for divorce was held to be no bar to grant maintenance under section 25 to the successful spouse.
Then in Surendra Singh Chaudan v. Mamta Chauhan II(1990) Divorce & Matrimonial Cases 208 a learned Single Judge of the Madhya Pradesh High Court taking the view that the dismissal of a petition amounts to passing of a decree for the purposes of Section 25 of the Act held that claim for permanent alimony was maintainable. The learned Judge ruled that there appeared to be no justification for curtailing the ambit of the words to go on to hold that a decree is not a “decree” for the purposes of section 25 of the Act, though a “decree” for the purposes of section 28 of the Act. Here again the intention of the legislature was gathered avoiding multiplicity of proceedings. so that every dispute between the parties, particularly connected with matters like maintenance etc. should be settled in the 964 same proceedings.
A learned Single Judge of the Bombay High Court in Modilal Kalaramji Jain v. Lakshmi Modilal Jain AIR 1991 Bombay 440 – Vol. 78 omitting the word “passing” from the expression, interpreted the expression “any decree” to include an order refusing to grant matrimonial relief and on that basis held adjudication of claim of permanent maintenance to be within the jurisdiction of the matrimonial court.
Same is the view of the Andhra Pradesh High Court in Shilla Jagannadha Prasad alias Ram v. Smt. Shilla Lalitha Kumari  1 Hindu Law Reporter 26 and some other cases which need not be multiplied.
The preamble to the Hindu Marriage Act suggests that it is an Act to amend and codify the law relating to marriage among Hindus. Though it speaks only of the law relating to marriage, yet the Act itself lays down rules relating to the solemnization and requirements of a valid Hindu marriage as well as Restitution of Conjugal Rights, Judicial Separation, Nullity of Marriage, Divorce, legitimacy of children and other allied matters. Where the statute expressly codifies the law, the court as a general rule, is not at liberty to go outside the law so created, just on the basis that before its enactment another law prevailed. Now the other law in the context which prevailed prior to that was the unmodified Hindu law on the subject. Prior to the year 1955 or 1956 maintenance could be claimed by a Hindu wife through court intervention and with the aid of the case law developed.
Now with effect from December 21, 1956, the Hindu Adoptions and Maintenance Act is in force and that too in a codified form. Its preamble too suggests that it is an Act to amend and codify the law relating to adoptions and maintenance among Hindus. Section 18 (1) of the Hindu Adoptions and Maintenance Act, 1956 entitles a Hindu wife to claim maintenance from her husband during her life-time. Sub- section (2) of section 18 grants her the right to live separately, without forfeiting her claim to maintenance, if he is guilty of any of the misbehaviours enumerated therein or on account of his being in one of objectionable conditions as mentioned therein. So while sustaining her marriage and preserving her marital status, the wife is entitled to claim maintenance from her husband. On the other hand, under the Hindu Marriage Act, in contrast, her claim for maintenance pendente lite is durated on the pendency of a litigation of the kind envisaged under sections 9 to 14 of the Hindu Marriage Act, and her claim to permanent maintenance or alimony is based on the supposition that either her marital status has been strained or affected by passing a decree for restitution of conjugal rights or judicial separation in favour or against her, or her marriage stands dissolved by a decree of nullity or divorce, 965 with or without her consent. Thus when her marital status is to be affected or disrupted the court does so by passing a decree for or against her. On or at the time of the happening of that event, the court being siezen of the matter, invokes its ancilliary or incidental power to grant permanent alimony. Not only that, the court retains the jurisdiction at subsequent stages to fulfil this incidental or ancilliary obligation when moved by an application on that behalf by a party entitled to relief. The court further retains the power to chance or alter the order in view of the changed circumstances. Thus the whole exercise is within the gammit of a diseased of a broken marriage.
And in order to avoid conflict of perceptions the legislature while codifying the Hindu ‘Marriage Act preserved the right of permanent maintenance in favour of the husband or the wife, as the case may be, dependent on the court passing a decree of the kind as envisaged under sections 9 to 14 of the Act. In other words without the marital status being affected or disrupted by the matrimonial court under the Hindu Marriage Act the claim of permanent alimony was not to be valid as ancilliary or incidental to such affectation or disruption. The wife’s claim to maintenance necessarily has then to be agitated under the Hindu Adoptions and Maintenance Act, 1956 which is a legislative measure later in point of time than the Hindu Marriage Act, 1955, though part of the same socio-legal scheme revolutionizing the law applicable to Hindus.
Section 41 of the Evidence Act inter alia provides that a final judgment, order or decree of a competent court in the exercise of matrimonial jurisdiction, which confers upon or takes away from any person any legal character, or which declares any person to be entitled to such character, is relevant. And that such judgment, order or decree is conclusive proof as to the conferral, accrual,or taking away of such. legal character from a point of time as declared by the court. Such judgments are known as judgments in rem, binding the whole world. But the judgment of that kind must have done something positive, onwards. This provision is indicative of the quality of matrimonial jurisdiction.
We have thus, in this light, no hesitation in coming to the view that when by court intervention under the Hindu Marriage Act, affection or disruption to the marital status has come by, at that juncture, while passing the decree, it undoubtedly has the power to grant permanent alimony or maintenance, if that power is invoked at that time. It also retains the power subsequently to be invoked on application by a party entitled to relief. And such order, in all events, remains within the jurisdiction of that court, to be altered or modified as future situations may warrant. In contrast, without affectation or disruption of the marital status, a Hindu wife sustaining` that status can live in separation from her husband, and 966 whether she is living in that state or not, her claim to maintenance stands preserved in codification under section 18 (1) of the Hindu Adoptions and Maintenance Act. The court is not at liberty to grant relief of maintenance simplicitor obtainable under one Act in proceedings under the other. As is evident, both the statutes are codified as such and are clear on their subjects and by liberality of interpretation inter-changeability cannot be permitted so as to destroy the distinction on the subject of maintenance.
Relief to the wife may also be due under section 125 of the Code of Criminal Procedure whereunder an order of maintenance can be granted after contest, and an order of interim maintenance can be made at the outset, without much contest. This provision however has two peculiar features:
(i) the provision applies to all and not only to Hindus;
and (ii) maintenance allowance cannot exceed a sum of Rs. 500 per mensem.
But this is a measure in the alternative to provide destitute wives.
This court has ruled that if the language used in a statute can be construed widely so as to salvage the remedial intendment, the court must adopt it. Of course, if the language of a statute does not admit of the construction sought, wishful thinking is no substitute, and then, not the court but the legislature is to blame for enacting a damp squib statute. These are the observations of V.K. Krishna Iyer, J. in Carew and Company v. Union of India  2 SCC 791 at pages 803-804. Towards interpreting statutes, the court must endeavour to see its legislative intendment.
Where the language is ambiguous or capable of more than one meaning, the court must sympathetically and imaginatively discover the true purpose and object of the Provision by filling gaps, clearing doubts, and mitigating hardships, harshness or unfair consequences. See Motor Owners’ Insurance Company, Limited vs. Jadavji Keshavji Modi and others  4 SCC 660 paras 14. 15 and 16. These principles were pressed into service by learned counsel for the appellant contending that if the claim of the wife for maintenance was otherwise justified on fact and law, the procedures and the for a should not stand in her way and let her cash on her claim over-ruling all objections. It was asserted that the Amritsar court had jurisdiction to grant relief, as asked for, because once upon a time it was seisin of the petition for dissolution of marriage by mutual consent, though such petition was withdrawn.
On the afore-analysis and distinction drawn between the fora and perceptives, 967 it is difficult to come to the view that a claim which is ancilliary or incidental in a matrimonial court under the Hindu Marriage Act could be tried as an original claim in that court; a claim which may for the moment be assumed as valid, otherwise agitable in the civil court under the Hindu Adoptions and Maintenance Act, 1956. As said before, these two enactments keeping apart, the remaining two, i.e., Hindu Succession Act, 1956 and Hindu Minority and and Guardianship Act, 1956 are a package of enactments, being part of one socio-legal scheme applicable to Hindus. When distinctive claims are covered distinctly under two different statutes and agitable in the courts conceived of thereunder, it is difficult to sustain the plea that when a claim is otherwise valid, choosing of one forum or the other should be of no consequence. These are not mere procedural technicalities or irregularities, as termed by one line of reasoning by some of the High Courts. These are matters which go to the root of the jurisdiction. The matrimonial court, a court of special jurisdiction, is not meant to pronounce upon a claim of maintenance without having to go into the exercise of passing a decree, which implies that unless it goes onwards, moves or leads through, to affect or disrupt the marital status between the parties. By rejecting a claim, the matrimonial court does make an appealable degree in terms of section 28, but neither affects nor disrupts the marriage.
It certainly does not pass a decree in terms of section 25 for its decision has not moved or done anything towards, or led through, to disturb the marriage, or to confer or take away any legal character or status. Like a surgeon, the matrimonial court, if operating, assumes the obligation of the post operatives, and when not, leaves the patient to the physician.
On the afore analysis we have been led to the conclusion that the step of the wife to move the court of Additional District Judge, Amritsar for (,rant of maintenance under section 25 of the Hindu Marriage Act was ill-advised. The judgment of the High Court under appeal could be no other than the one that it was in the present state of law and the facts and circumstances. It is still open to the wife to stake her claim to maintenance in other fora. The judgments of the High Courts earlier quoted, and others which have been left out, which are not in line with our view are over- ruled. The earlier and predominant view was the correct one and the later an aberration; something unfortunate from the precedential point of view. The appeals thus inevitably have to and are hereby dismissed, but without any order as to costs.
Before we part with this judgment, we need to mention that while this judgment was reserved, an Interlocutory Application was received by the Registry, which unnumbered Interlocutory Application was duly transmitted to us. It is for directing the appellant to pay arrears of maintenance.While granting leave 968 this Court on 8th July, 1991 had ordered that during the pendency of the appeal, but without prejudice to the respective stands of the spouses, the husband shall pay a sum of Rs. 1000 per mensem by way of maintenance to the wife month to month by bank draft. In the Interlocutory Application there is an allegation that this Court’s orders have not been complied with. Let notice on the application separately be issued to the respondent returnable within six weeks to show cause why payment of arrears of maintenance be not secured to the wife forthwith.
U.R. Appeal dismissed.
folks this is infact a good judgement… Maintenance cases are dealt like a piece of shit… I am concerned if the lower court judges will appreciate such docs… as far as i have seen, they hardly understand or talk logic …..
We can use this judgement to reverse tact… ie check the wife’s background in a similar way before a number is decided atleast in High courts
* IN THE HIGH COURT OF DELHI AT NEW DELHI +
CM(M) 79/2011 %
Date of decision: 12th September, 2011
PUNEET KAUR ….. Petitioner Through : Mr. Ashok Chhabra with Mr. Sunjayjyoti Singh Paul, Advs. versus INDERJIT SINGH SAWHNEY ….. Respondent Through : Respondent in person.
CORAM :- THE HON’BLE MR. JUSTICE J.R. MIDHA
1. Whether Reporters of Local papers may be allowed to see the Judgment?Y 2. To be referred to the Reporter or not? YES 3. Whether the judgment should be YES reported in the Digest?
JUDGMENT (ORAL) CM(M)No.79/2011 and CM No.1756/2011 1. The petitioner has challenged the order dated 26th November, 2010 whereby her application for maintenance under Section 24 of the Hindu Marriage Act was dismissed by the learned Trial Court.
2. The petitioner claimed maintenance and litigation expenses from her husband on the ground that she was unable to maintain herself and her two children aged 13 and 16 years. The petitioner averred that she was not gainfully employed and was receiving interest income of about `8,000/- to `10,000/- per month from the investments whereas the monthly expenses of the children were to the tune of `25,000/- per month. The petitioner further averred that the respondent was running the business of transport in the name of Bakshi Transport Service and his income was more than `2,00,000/- to `3,00,000/- per month.
3. The respondent contested the above application before the learned Trial Court on the ground that the respondent was unemployed and had no income. The respondent averred that he was living like a pauper and had no money even for two proper meals a day. He also stated that he had no shelter. The respondent also alleged that the petitioner’s annual income was `3,00,000/- per month from three sources, namely `1,00,000/- to `2,00,000/- per month from business, `60,000/- per month from salary and `20,000/- per month from interest.
4. The learned Trial Court believed the respondent and held that there was no material record to show that the respondent had any income and, therefore, the petitioner’s application was dismissed. 5. In Bharat Hegde v. Saroj Hegde, 140 (2007) DLT 16, this Court laid down the following principles for fixing the maintenance under Section 24 of the Hindu Marriage Act:- “4. Right to maintenance is an incident of the status from an estate of matrimony. Interim maintenance has an element of alimony, which expression in its strict sense means allowance due to wife from husband on separation. It has its basis in social conditions in United Kingdoms under which a married woman was economically dependent and almost in a position of tutelage to the husband and was intended to secure justice to her.
5. Section 24 of the Hindu Marriage Act goes a step further inasmuch as it permits maintenance to be claimed by the husband even against the wife.
6. While considering a claim for interim maintenance, the court has to keep in mind the status of the parties, reasonable wants of the applicant, the income and property of the applicant. Conversely, requirements of the non applicant, the income and property of the non applicant and additionally the other family members to be maintained by the non applicant have to be taken into all. Whilst it is important to insure that the maintenance awarded to the applicant is sufficient to enable the applicant to live in somewhat the same degree of comfort as in the matrimonial home, but it should not be so exorbitant that the non applicant is unable to pay.
7. Maintenance awarded cannot be punitive. It should aid the applicant to live in a similar life style she/he enjoyed in the matrimonial home. It should not expose the non applicant to unjust contempt or other coercive proceedings. On the other hand, maintenance should not be so low so as to make the order meaningless.
8. Unfortunately, in India, parties do not truthfully reveal their income. For self employed persons or persons employed in the unorganized sector, truthful income never surfaces. Tax avoidance is the norm. Tax compliance is the exception in this country. Therefore, in determining interim maintenance, there cannot be mathematical exactitude. The court has to take a general view. From the various judicial precedents, the under noted 11 factors can be culled out, which are to be taken into consideration while deciding an application under Section 24 of the Hindu Marriage Act.
The same are:
1. Status of the parties. 2. Reasonable wants of the claimant. 3. The independent income and property of the claimant. 4. The number of persons, the non applicant has to maintain. 5. The amount should aid the applicant to live in a similar life style as he/she enjoyed in the matrimonial home. 6. Non-applicant’s liabilities, if any. 7. Provisions for food, clothing, shelter, education, medical attendance and treatment etc. of the applicant. 8. Payment capacity of the non applicant. 9. Some guess work is not ruled out while estimating the income of the non applicant when all the sources or correct sources are not disclosed. 10. The non applicant to defray the cost of litigation. 11. The amount awarded under Section 125 Cr.PC is adjustable against the amount awarded under Section 24 of the Act.” (Emphasis Supplied) 6. In Jayant Bhargava v. Priya Bhargava, 181 (2011) DLT 602, this Court laid down the factors to be taken into consideration for ascertaining the income of the spouse. The relevant portion of the judgment is reproduced hereunder:- “12. It is settled position of law that a wife is entitled to live in a similar status as was enjoyed by her in her matrimonial home. It is the duty of the courts to ensure that it should not be a case that one spouse lives in a life of comfort and luxury while the other spouse lives a life of deprivation, poverty. During the pendency of divorce proceedings the parties should be able to maintain themselves and should be sufficiently entitled to be represented in judicial proceedings. If in case the party is unable to do so on account of insufficient income, the other spouse shall be liable to pay the same. (See Jasbir Kaur Sehgal (Smt.) v. District Judge, Dehradun and Ors., reported at V (1998) SLT 551, III (1997) CLT 398 (SC), II (1997) DMC 338 (SC) and (1997) 7 SCC 7). 13. A Single Judge of this Court in the case of Bharat Hegde v. Saroj Hegde, reported at 140 (2007) DLT 16 has culled out 11 factors, which can be taken into consideration for deciding the application under Section 24 of Hindu Marriage Act. 14. Further it has been noticed by the Courts that the tendency of the spouses in proceedings for maintenance is to not truthfully disclose their true income. However, in such cases some guess work on the part of Court is permissible. 15. The Supreme Court of India in the case of Jasbir Kaur (Smt.) (supra), has also recognized the fact that spouses in the proceedings for maintenance do not truthfully disclose their true income and therefore some guess work on the part of the Court is permissible. Further the Supreme Court has also observed that “considering the diverse claims made by the parties one inflating the income and the other suppressing an element of conjecture and guess work does enter for arriving at the income of the husband. It cannot be done by any mathematical precision”. 16. Although there cannot be an exhaustive list of factors, which are to be considered in guessing the income of the spouses, but the order based on guess work cannot be arbitrary, whimsical or fanciful. While guessing the income of the spouse, when the sources of income are either not disclosed or not correctly disclosed, the Court can take into consideration amongst others the following factors:
(i) Life style of the spouse; (ii) The amount spent at the time of marriage and the manner in which marriage was performed; (iii) Destination of honeymoon; (iv) Ownership of motor vehicles; (v) Household facilities; (vi) Facility of driver, cook and other help; (vii) Credit cards; (viii) Bank account details; (ix) Club Membership; (x) Amount of Insurance Premium paid; (xi) Property or properties purchased; (xii) Rental income; (xiii) Amount of rent paid; (xiv) Amount spent on travel/ holiday; (xv) Locality of residence; (xvi) Number of mobile phones; (xvii) Qualification of spouse; (xviii) School(s) where the child or children are studying when parties were residing together; (xix) Amount spent on fees and other expenses incurred; (xx) Amount spend on extra-curricular activities of children when parties were residing together; (xxi) Capacity to repay loan.
17. These are some of the factors, which may be considered by any court in guesstimating or having a rough idea or to guess the income of a spouse. It has repeatedly been held by the Courts that one cannot ignore the fact that an Indian woman has been given an equal status under Articles 14 and 16 of the Constitution of India and she has a right to live in dignity and according to the status of her husband. In this case, the stand taken by the Respondent with respect to his earning is unbelievable.” 7. In the facts and circumstances of this case, both the parties are directed to file their respective affidavits of assets, income and expenditure from the date of the marriage up to this date containing the following particulars:- 7.1 Personal Information (i) Educational qualifications. (ii) Professional qualifications. (iii) Present occupation. (iv) Particulars of past occupation. (v) Members of the family. (a) Dependent. (b) Independent. 7.2 Income (i) Salary, if in service. (ii) Income from business/profession, if self employed. (iii) Particulars of all earnings since marriage. (iv) Income from other sources:- (a) Rent. (b) Interest on bank deposits and FDRs. (c) Other interest i.e. on loan, deposits, NSC, IVP, KVP, Post Office schemes, PPF etc. (d) Dividends. (e) Income from machinery, plant or furniture let on hire. (f) Gifts and Donations. (g) Profit on sale of movable/immovable assets. (h) Any other income not covered above . 7.3 Assets (i) Immovable properties:- (a) Building in the name of self and its Fair Market Value (FMV):- Residential. Commercial. Mortgage. Given on rent. Others. (b) Plot/land. (c) Leasehold property. (d) Intangible property e.g. patents, trademark, design, goodwill. (e) Properties in the name of family members/HUF and their FMV. (ii) Movable properties:- (a) Furniture and fixtures. (b) Plant and Machinery. (c) Livestock. (d) Vehicles i.e. car, scooter along with their brand and registration number. (iii) Investments:- (a) Bank Accounts – Current or Savings. (b) Demat Accounts. (c) Cash. (d) FDRs, NSC, IVP, KVP, Post Office schemes, PPF etc. (e) Stocks, shares, debentures, bonds, units and mutual funds. (f) LIC policy. (g) Deposits with Government and Non-Government entities. (h) Loan given to friends, relatives and others. (i) Telephone, mobile phone and their numbers. (j) TV, Fridge, Air Conditioner, etc. (k) Other household appliances. (l) Computer, Laptop. (m) Other electronic gadgets including I-pad etc. (n) Gold, silver and diamond Jewellery. (o) Silver Utensils. (p) Capital in partnership firm, sole proprietorship firm. (q) Shares in the Company in which Director. (r) Undivided share in HUF property. (s) Booking of any plot, flat, membership in Co-op. Group Housing Society. (t) Other investments not covered by above items. (iv) Any other assets not covered above. 7.4 Liabilities (i) OD, CC, Term Loan from bank and other institutions. (ii) Personal/business loan (a) Secured. (b) Unsecured. (iii) Home loan. (iv) Income Tax, Wealth Tax and Property Tax. 7.5 Expenditure (i) Rent and maintenance including electricity, water and gas. (ii) Lease rental, if any asset taken on hire. (iii) Installment of any house loan, car loan, personal loan, business loan, etc. (iv) Interest to bank or others. (v) Education of children including tuition fee. (vi) Conveyance including fuel, repair and maintenance of vehicle. Also give the average distance travelled every day. (vii) Premium of LIC, Medi-claim, house and vehicle policy. (viii) Premium of ULIP, Mutual Fund. (ix) Contribution to PPF, EPF, approved superannuation fund. (x) Mobile/landline phone bills. (xi) Club subscription and usage, subscription to news papers, periodicals, magazines, etc. (xii) Internet charges/cable charges. (xiii) Household expenses including kitchen, clothing, etc. (xiv) Salary of servants, gardener, watchmen, etc. (xv) Medical/hospitalization expenses. (xvi) Legal/litigation expenses. (xvii) Expenditure on dependent family members. (xviii)Expenditure on entertainment. (xix) Expenditure on travel including outstation/foreign travel, business as well as personal. (xx) Expenditure on construction/renovation and furnishing of residence/office. CM(M) (xxi) Any other expenditure not covered above. 7.6 General Information regarding Standard of Living and Lifestyle (i) Status of family members. (ii) Credit/debit cards. (iii) Expenditure on marriage including marriage of family members. (iv) Expenditure on family functions including birthday of the children. (v) Expenditure on festivals. (vi) Expenditure on extra-curricular activities. (vii) Destination of honeymoon. (viii) Frequency of travel including outstation/foreign travel, business as well as personal. (ix) Mode of travel in city/outside city. (x) Mode of outstation/foreign travel including type of class. (xi) Category of hotels used for stay, official as well as personal, including type of rooms. (xii) Category of hospitals opted for medical treatment including type of rooms. (xiii) Name of school(s) where the child or children are studying. (xiv) Brand of vehicle, mobile and wrist watch. (xv) Value of jewellery worn. (xvi) Details of residential accommodation. (xvii) Value of gifts received. (xviii)Value of gifts given at family functions. (xix) Value of donations given. (xx) Particulars of credit card/debit card, its limit and usage. (xxi) Average monthly withdrawal from bank. (xxii)Type of restaurant visited for dining out. (xxiii)Membership of clubs, societies and other associations. (xxiv)Brand of alcohol, if consumed. (xxv)Particulars of all pending as well as decided cases including civil, criminal, labour, income tax, excise, property tax, MACT, etc. with parties name. 8. Both the parties are also directed to file, along with affidavit, copies of the documents relating to their assets, income and expenditure from the date of the marriage up to CM(M) No.79/2011 this date and more particularly the following:- (i) Relevant documents with respect to income including Salary certificate, Form 16A, Income Tax Returns, certificate from the employer regarding cost to the company, balance sheet, etc. (ii) Audited accounts, if deponent is running business and otherwise, non-audited accounts i.e. balance sheets, profit and loss account and capital account. (iii) Statement of all bank accounts. (iv) Statement of Demat accounts. (v) Passport. (vi) Credit cards. (vii) Club membership cards. (viii) Frequent Flyer cards. (ix) PAN card. (x) Applications seeking job, in case of unemployed person. 9. The affidavit and documents be filed within a period of four weeks with an advance copy to opposite parties who shall file their response within two weeks thereafter. 10. List for hearing on 9th November, 2011. 11. Both the parties are directed to remain present in Court on the next date of hearing along with all original documents relating to their assets, income and expenditure. 12. This Court appreciates the valuable assistance rendered by Ms. Prem Lata Bansal, Senior Advocate. 13. Copy of this order be sent to the Principal District Judge for being circulated to the concerned judges dealing with matrimonial cases. 14. Copy of this order be given dasti to learned counsels for both the parties under signature of Court Master. J.R. MIDHA, J SEPTEMBER 12, 2011 mk