Allowed

Kumar Shantanu v. Smt Neha Gupta

Allahabad HC21 Nov 2024FAPLD/720/2024

Case brief

AI extract

What is this about?

The Allahabad High Court condoned a 23-day delay in filing an appeal against an interim maintenance order. The court upheld the maintenance and legal expenses but modified the order to clarify the payment of school fees. It also enforced the legal principle that higher maintenance awarded under one statute prevents independent recovery under a lower amount under another for the same period.

What did the court decide?

Delay condoned; appeal disposed of with directions to pay maintenance arrears, legal expenses, and future school fees directly to the school.

Kumar Shantanu vs Smt Neha Gupta — Matrimonial and Divorce | Allahabad HC (2024)

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Neutral Citation No. - 2024:AHC:181933-DB

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Court No. - 39

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Case :- FIRST APPEAL DEFECTIVE No. - 720 of 2024

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Appellant :- Kumar Shantanu Respondent :- Smt Neha Gupta Counsel for Appellant :- Kapil Tyagi Counsel for Respondent :- Mohd. Saleem Khan

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Hon'ble Saumitra Dayal Singh,J. Hon'ble Donadi Ramesh,J.

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Order on Delay Condonation Application

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Heard Sri Anshul Kumar Singhal, learned counsel for the applicant/appellant and Sri Mohd. Saleem Khan, learned counsel for the respondent.

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Present appeal has been filed carrying small delay of 23 days.

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Cause shown in the affidavit filed in support of the delay condonation application to the appeal is good and sufficient.

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Application is allowed. Delay on filing the appeal is condoned. The appeal is treated to have been filed within time.

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Order on Memo of Appeal

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Present appeal has been filed under Section 19 of the Family Court Act, 1984 arising from the order dated 11.09.2024, passed by the Principal Judge, Family Court, Gautam Buddh Nagar in Matrimonial Case No.948 of 2021, (Kumar Shantanu versus Neha Gupta), whereby learned court below has provided for interim maintenance allowance in favour of the respondent and her son at the rate of Rs.30,000/- per month from February, 2022 onwards. It has further provided for one time legal expense, Rs.22,000/-.

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Thereafter hand written direction had been added with respect to the payment of school fee of the child born to the parties. It has been further observed that the same may be paid as before. Neither the amount of school fee has been quantified nor any observation has been made by the learned court below with reference to any earlier direction issued with respect to payment of school fee.

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In such facts, present appeal arises.

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Having heard learned counsel for the parties and having perused the records, in the first place it is undisputed to the appellant that his monthly income is in excess Rs. 1,30,000/-.

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The Supreme Court in Kulbhushan Kumar (Dr.) Vs. Raj Kumari, (1970) 3 SCC 129 , held as below:

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"21 … The High Court, in our opinion, very rightly fixed that sum making it subject to the limit of 25 per cent of the income as found by the Income Tax authorities. We have no reason to take any different view. ..."

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9. Again, in Kalyan Dey Chowdhury Vs. Rita Dey Chowdhury Nee Nandy, (2017) 14 SCC 200 , it was observed as below:

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"15. … Following Kulbhushan Kumar Vs. Raj Kumari, (1970) 3 SCC 129 , in this case, it was held that 25% of the husband's net salary would be just and proper to be awarded as maintenance to the respondent wife. The amount of permanent alimony awarded to the wife must be befitting the status of the parties and the capacity of the spouse to pay maintenance. Maintenance is always dependent on the factual situation of the case and the court would be justified in moulding the claim for maintenance passed on various factors. ..."

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That principle should be adhered to and firmly and consistently applied by all Family Courts while dealing with interim/final maintenance allowance applications, filed under different enactments.

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Keeping that principle in mind, the award of Rs.30,000/- per month towards monthly maintenance is neither excessive nor arbitrary. The fact that earlier the appellant had been paying to the respondent Rs.20,000/- per month, of his own, may not be cited as the circumstance to doubt the correctness of the order passed by

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the learned court below. Even then, it appears that the appellant has paid the amount Rs.20,000/- per month to the respondent only up to June, 2022. Seen in that light, the award of Rs.30,000/- per month from February, 2022 is wholly valid. Thus, the appellant would be required to pay Rs.50,000/- more (at the rate of Rs.10,000/- per month) for the months of February, 2022 to June, 2022. Thereafter, further amount of Rs.8,70,000/- is due and payable (as on date) at the rate of Rs.30,000/- per month. Thus a total amount of Rs.9,20,000/- is due and payable against the appellant towards monthly maintenance allowance awarded by the learned court below.

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As to the further amount of Rs.22,000/- awarded towards one time legal expense, we find no error on part of the learned court below inasmuch as reasonable amount towards legal expense would have to be paid by the appellant to the respondent as the respondent is earning Rs.36,000/- per month, only. Considering the financial and social status of the parties, that amount is just and proper.

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As to the hand written direction contained in the impugned order, it does require consideration. In the first place, once a correction was being made to the order, the learned court below may have ensured to record the same with care. Without specifying the amount and the period, parties have been left in doubt. Learned counsel for the appellant states that the respondent is claiming Rs.20,000/- per month towards school expenses. He has referred to admission of the respondent in the proceeding before the learned court below to clarify that such amount may not exceed Rs.5,000/per month. In any case, it is his submission, that the school expenses may be provided for at the actual rate only. This submission advanced by learned counsel for the appellant merits

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consideration.

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On the other hand, learned counsel for the respondent would contend that all expenses for school and tuition etc. were to be borne by the appellant who has sufficient means. To that extent, he would submit there is no error in the order passed by the learned court below.

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Having considered the submissions thus advanced, we find, in the first place both parents of the child have earning. Though it is true that the appellant (who is the father), has a higher income, it can not be said that the mother has no means of her own.

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In view of the above, the order impugned requires part modification with respect to provision for payment of school fee. Let school fee of the minor born to the parties be borne by the appellant by making the payments either directly to the school or by making reimbursement of the same to the respondent against receipts being made available by her. In that regard any school fee that may have been paid by the respondent for the academic session 2024-2025 may be reimbursed by the appellant against receipt being made available to him. Future fees payments be made directly by the appellant.

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We also note, the learned court below ought to have made clear cut observation with respect to payment of school fees both with reference to the amount as also the period. Further the mode of payment may also have been clarified. Any doubt expressed by the parties may only give rise to misunderstanding and further litigation. In the context of matrimonial dispute being suffered by the parties, the learned court below may remain vigilant to these minor aspects, as well.

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Another submission has also been advanced by learned counsel for the appellant that the respondent is seeking to harass the appellant by filing multiple proceedings for the same. Thus on one hand she has secured the impugned order under Section 24 of the Hindu Marriage Act, 1955 providing for high maintenance allowance at the rate of Rs.30,000/- per month along-with provision for payment school fee of the minor, at the same time she made another application under Section 125 Cr.P.C. also seeking maintenance allowance. Therein the same learned court below has, vide its order dated 18.09.2024, provided for maintenance allowance at the rate of Rs.5,000/- per month from the date of application i.e. 08.08.2022. Since the period for which maintenance allowance has been claimed under Section 125 Cr.P.C. would run concurrently to the maintenance allowance awarded under the impugned order and since the amount awarded under Section 125 Cr.P.C. is much less than the amount awarded under the impugned order, neither the learned court below may have passed such separate order nor the respondent may be unable to seek any recovery under that order.

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As to the further order passed under Section 125 Cr.P.C., though the same is not under challenge in these proceedings, it would be useful to note that Supreme Court in Rajnesh Vs. Neha & Anr., (2021) 2 SCC 324 has clarified the law beyond any doubt. Once it is admitted to the parties and known to the Family Court that there are multiple applications filed by estranged spouse claiming maintenance allowance from the other, then for the same period, two or more claims may not be pursued independently to the extent, two recoveries may not arise for same or less amount/s. The order providing for higher maintenance, once satisfied would ensure that no further recovery is made against any other order

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providing for equal or lower maintenance. In that regard by an earlier order dated 19.09.2024 passed in Niraj Kumar Dhakre Alias Pintu versus Smt Karishma (Neutral Citation2024:AHC:152463-DB) , we have clarified as below :-

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"21. The ratio in Rajnesh Vs Neha & Anr. (supra) clearly lays down a firm rule against multiple deductions or recoveries, towards interim/final maintenance allowance. Without a doubt, award of maintenance allowance, made under one law (here Service law), would always satisfy the recovery of maintenance allowance for an equal or lesser amount, directed under any order passed by any Court or authority, under any other statutory law (here Hindu Marriage Act, 1955). Thus, no (further) recovery may be made pursuant to any order/s providing for equal or less monthly interim/final maintenance allowance, so long as an equal or higher sum of maintenance allowance has been or is being paid under another order providing for equal or higher interim/final maintenance allowance.

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22. To that extent, recoveries arising under any other order/s (providing for equal or lesser interim/final maintenance allowance), would remain subject to the payment/recovery already made under the order providing for equal or higher interim/final maintenance allowance, irrespective of the statutory law under which that provision for higher maintenance allowance may be made. In such cases the payer spouse often the husband, is required to produce before the Court or authority seeking recovery of such amount - proof of deposit/deduction/payment/recovery made, of equal or higher interim/final maintenance allowance. On that proof arising, the Court/authority concerned shall not pursue (further), separate recovery of that equal or less amount of interim/final maintenance allowance. Where recovery pursued is for a higher amount of maintenance allowance awarded (than already paid under another law), that Court may recover the differential amount only.

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23. Where, in face of a pre-existing order, awarding interim/final maintenance allowance under any law, the same applicant applies for award of interim/final maintenance allowance under another law against the same respondent, not only due disclosure must be made by that applicant - of that pre-existing right earned (by them) with respect to interim/final maintenance allowance, but the Court/authority before whom that application may be made, shall necessarily consider the issue of adequacy or inadequacy of the interim/final maintenance allowance already awarded and record its reason to award any other or different interim/final maintenance allowance, in that subsequent proceeding.

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24. Recoveries under any subsequent order passed providing for an equal or less maintenance allowance for the same period (for which another/earlier order exists), may necessarily and expressly remain subject to recoveries under that earlier order. Thus, recovery under that subsequent order may be made only when the payer has failed to pay an equal or higher amount awarded under the earlier order. Thus, in recovery proceeding arising under such subsequent order, it would be good defense (to the payer spouse) to state they had paid an equal or higher amount for the same period, under the first/earlier order, though that earlier order may have been made under another statute/law, including deduction made under the relevant Service law, and vice versa.

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25. Where the subsequent order may provide for a equal or higher amount of maintenance allowance than awarded under earlier order/s (under any law), the actual amount to be paid/recovered under that later order would depend on the status of payment/recovery of the equal or lesser amounts (under the earlier order/s). Similarly, where in a case equal or less amount of maintenance allowance awarded under the later order gets paid/recovered first i.e. before recovery being made under the earlier order, the payer spouse would be entitled to claim benefit of that recovery in the recovery proceedings under the earlier order/s.

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26. Further, where more than one order is passed - arising from more than one application filed by a claimant (under different enactments), the respective Courts must act with pragmatism. Often different applications are filed under different statutes claiming different amounts, for different periods depending on the date of filing of such applications. There, subject to all or more than one application becoming ripe for hearing (before the same Court) and in absence of any exceptional fact existing, such Court may first decide the

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application seeking the higher/highest maintenance allowance. That would avoid any chance of duplication of proceedings for the same or similar amount. For the same/overlapping/different period, same/similar amount may be claimed through different applications. Courts may make note of the earlier order/s passed on the application seeking higher/highest maintenance allowance and dispose of such other application/s, mindful of that decision.

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27. That course would save valuable time on the Courts as also the parties. Normally, the scale or slab of income of the payer spouse does not fluctuate rapidly - from year to year. That approach will help attain consistency of reasoning and proportionality in quantification of maintenance allowance, for different periods and/or under different enactments. It is truer of those who derive income from salary or business and profession. Thus, assessment of entitlement, and need of the claimant and capacity of the payer, once assessed, it may set the template for the parties, in the other similar proceedings. If that higher amount is considered as the benchmark, then claims made under the remaining application/s, (for interim/final maintenance allowance for same and other period/s that may be covered under remaining application/s), may be considered and decided in proportion or with reference thereto. It would introduce consistency of judicial reasoning and conclusions (recorded in different orders passed), in different summary proceedings, conducted under different enactments, for the same purpose of providing maintenance allowance.

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28. Thus, in applying the law laid down by the Supreme Court in Rajnesh Vs. Neha & Anr. (supra) , we further emphasize - in the single application that may be received by a Court or as may mature for orders/hearing, before it (under any enactment), seeking maintenance allowance and if that Court proposes to award - either interim or final maintenance allowance (as the case may be), it must make best effort to award a wholesome, adequate and reasonable amount of interim/final maintenance allowance at that first instance/application, itself."

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In the operative portion of that order, we have also provided for strict implementation of the law as interpreted by the Court. We hope and trust that the learned court below shall act mindful of those directions and ensure strict compliance thereof.

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Accordingly, the present appeal is disposed of with the following directions :

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(i) Subject to the appellant furnishing adequate security to the tune of Rs. 10,00,000/- to the satisfaction of the court below in the shape of other than cash or bank guarantee on or before 15.12.2024, further coercive measures adopted against the appellant shall remain stayed, subject to other conditions provided herein.

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(ii) The appellant shall pay maintenance @ Rs. 30,000/- per month from December 2024 onwards as and when it becomes due.

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(iii) As to the arrears of amount Rs. 9,20,000/-, the same may be

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paid by the appellant in 24 monthly installments such that Rs.46,000/- may be paid on or before 31.12.2024 and the balance in 23 equal monthly installments of Rs.38,000/- each, falling of 15th of each following month beginning 15.01.2025.

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(iv) The amount of legal expense Rs. 22,000/- awarded to the respondent shall be paid by the appellant on or before 15.12.2024.

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(v) The future school fee of the child born to the parties may be paid by the appellant directly to the school, where the child is admitted.

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(vi) As to the arrears for the academic session 2024-25, the respondent shall inform the appellant about the same through e- mail within a period of one week. The appellant shall pay the same to respondent, by 15.12.2024.

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(vii) For the above purpose, all amounts to be paid under this order, may be paid to the respondent directly in her following bank account :-

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Neha Gupta IFSC UTIB0003982

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Branch : Axis Bank, Sector 137 Branch Noida Account No.918010043406455

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It is made clear that in the event of failure on part of the appellant to comply with any part of the order, coercive measures be revived from that stage without any further reference to this Court.

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Order Date :- 21.11.2024 I.A.Siddiqui

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(Donadi Ramesh,J.) (S. D. Singh, J.)

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Digitally signed by :- IMRAN AHMAD SIDDIQUI High Court of Judicature at Allahabad

Kumar Shantanu v. Smt Neha Gupta

Case brief

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Kumar Shantanu v. Smt Neha Gupta

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