Partly allowed

Anil Kumar Jamwal v. Reena Devi

Himachal Pradesh HC29 Nov 2017CMPMO/208/2017

Case brief

AI extract

What is this about?

The High Court modified a district judge's order under Section 24 of the Hindu Marriage Act. Finding the lower court's assessment of income based on guess work perverse, the High Court reduced the maintenance award from `8,000 to `4,000 per month pending litigation.

What did the court decide?

Petitioner directed to pay `4,000 per month maintenance pendent lite from 5.11.2015 and deposit it in respondent's bank account; litigation expenses of `10,000 upheld.

Anil Kumar Jamwal Vs Reena Devi — Maintenance and Alimony | Himachal Pradesh HC (2017)

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IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

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CMPMO No. 208 of 2017 Decided on: 29.11.2017

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Sh. Anil Kumar Jamwal	…Petitioner
Versus
Smt. Reena Devi	...Respondent
Coram

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The Hon’ble Mr.Justice Tarlok Singh Chauhan, Judge.

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Whether approved for reporting? No.

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For the petitioner: Mr. L.S. Mehta, Advocate. For the respondent: Mr. Adarsh Kumar Vashisht, Advocate. Justice Tarlok Singh Chauhan, Judge (Oral)

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This petition under Article 227 of the Constitution, at the instance of the petitioner/husband, is directed against the order of maintenance dated 28.02.2017, passed by the learned District Judge, Shimla, in proceedings under Section 24 of the Hindu Marriage Act (for short the ‘Act’).

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It is not in dispute that the parties are husband and wife even though currently they are estranged. The petitioner has filed petition under Section 13 of Act seeking dissolution of marriage on various grounds including the ground of cruelty which are pending adjudication and it was in these proceedings that the respondent filed an petition under Section 24 of the Act for grant of maintenance pendent lite and expenses of proceedings.

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The application so filed was allowed by the learned trial Court vide order dated 28.02.2017 and the petitioner was directed to pay a sum of ` 8,000/- per month as maintenance pendent lite from the date of application and in addition thereto he was also directed to pay a sum of Rs.10,000/- to the respondent towards litigation expenses.

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The petitioner has assailed the order of maintenance mainly on the ground that he is earning only 10,000/- per month, therefore, a sum of 8,000/- towards maintenance could not have been awarded in favour of the respondent.

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The Hindu Marriage Act is a piece of social welfare legislation regulating the marital relations of Hindus consistently with their customary law i.e. Hindu Law. The object behind Section 24 of the Act is to provide financial assistance to the indigent spouse to maintain herself or himself during the pendency of the proceedings and also to have sufficient funds to carry on the litigation so that the spouse does not unduly suffer in the conduct of the case for want of funds.

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Having made a note of the object of Section 24 of the Act, it would be noticed that this is rather an unusual case calling for an unusual solution. The case is unique because the respondent, who is the wife of the petitioner and from whom the petitioner seeks divorce is residing with his father at Bilaspur alongwith their two children and taking care of the entire family of the petitioner, whereas the petitioner

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is residing separately from both his father and also his wife at Shimla and does not dispute the aforesaid facts.

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Despite repeated endeavours made by this Court, reconciliation could not take place between the parties and, therefore, the Court is left with no other option but to decide the case on merit.

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I have learned counsel for the parties and have gone through the material placed on record.

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It has specifically come on record in the salary certificate of the petitioner issued by his employer, that he has been working as Media Coordinator and drawing a salary of ` 10,000/- per month and the said certificate has been duly proved on record by the authorized signatory of the employer of the petitioner by filing his personal affidavit to this effect. There is no evidence to the contrary available on record and, therefore, the question arises as to on what basis did the learned District Judge award the aforesaid amount(s).

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The answer to this question is contained in operative part of the impugned order which reads thus:-

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“The applicant is admittedly having no source of income whereas the non-applicant is proved to be working with a media house at Shimla, as this fact has not been disputed, however, the nonapplicant/husband has disputed the income as 25,000/- per month, but admitted that he is getting Rs.10,000/- as income. However, he has not placed on record his salary slip or any other document to show that he is getting only 10,000/-. In such situation this court is of the view that the non-applicant/husband has not come forward about his

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actual income, resultantly, this court has to adopt some guess work to assess the monthly income of the non-applicant/husband. The nonapplicant might be earning 18,000/- per month. The nonapplicant/husband has not pleaded that he has any other liability. In such situation, it would be just and appropriate for this court to grant a sum of 8,000/- per month as maintenance pendent lite to the applicant from the date of application. In addition to this, he has also been burdened to pay a sum of ` 10,000/- to the applicant as litigation expenses. The application under Section 24 of the Hindu Marriage Act is thus allowed. Be tagged with the main case file after due registration.”

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Now, the moot question arises as to what rate of

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maintenance is the respondent entitled to, particularly, when it is proved on record that total income of the petitioner is only 10,000/per month. It is now settled law that alimony normally varies between 1/3rd and 1/5th of the income of the husband, however, taking into consideration the fact that the respondent alongwith her two children residing in the house alongwith the father of the petitioner, nonetheless 1/3rd of the income awarding maintenance at the rate of 1/3rd would be inequitable and unjust. Therefore, taking into consideration all the cumulative facts and circumstances, I am of the considered opinion that the respondent is entitled to maintenance _pendent lite_ of 4,000/per month.

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The aforesaid observations obviously cannot withstand judicial scrutiny in view of what has been observed above. Therefore, this Court is left with no option but to set aside the said order, in so far

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as, it awards 8,000/- per month as maintenance _pendent lite_ , as it can conveniently be held that such findings are perverse and nothing short of surmises and conjectures and not supported by any material whatsoever on the record. However, as regards to the payment of litigation expenses of 10,000/-, I see no reason to interfere with the same.

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Accordingly, the order granting maintenance by the learned Court below is modified only to the extent that instead of 8,000/-, the petitioner shall pay a sum of 4,000/- per month as maintenance pendent lite to the respondent from the date of application i.e. 5.11.2015.

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As undertaken by the petitioner as per separate undertaking given in the Court today, he shall pay 50% arrears of maintenance with effect from the date of application i.e. 5.11.2015 at the rate of ` 4,000/- per month within a period of two months and the remaining 50% arrears within next two months. In addition thereto, he shall regularly pay the maintenance as awarded by this Court today by depositing the same in the bank account of the respondent.

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It is made clear that, in case, there is any violation of the undertaking so furnished to this Court today, then the petitioner in addition to any other action that may be initiated/taken against him, shall be liable to be prosecuted and punished under the Contempt of

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Courts Act. The undertaking furnished by the petitioner shall be read as

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a part and parcel of this order.

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The petition is partly allowed in the aforesaid terms, leaving

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the parties to bear their own costs.

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(Tarlok Singh Chauhan), Judge.

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November 29, 2017

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sanjeev

Anil Kumar Jamwal v. Reena Devi

Case brief

What is this about?

What did the court decide?

Anil Kumar Jamwal v. Reena Devi

Case brief

What is this about?

What did the court decide?

What the court decided

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