Allahabad High Court
Smt. Mamta Verma vs Hari Mohan on 12 September, 2022
Bench: Surya Prakash Kesarwani, Rajendra Kumar-Iv
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 3
Case :- FIRST APPEAL No. - 349 of 2011
Appellant :- Smt. Mamta Verma
Respondent :- Hari Mohan
Counsel for Appellant :- Manish Chandra Tiwari,G.S. Chauhan,Ranjeet Singh
Counsel for Respondent :- Ray Sahab Yadav
Hon'ble Surya Prakash Kesarwani,J.
Hon'ble Rajendra Kumar-IV,J.
Heard learned counsel for appellant.
This appeal has been filed praying to set aside the judgment and order dated 12.9.2011, in Case No. 353 of 2010 (Hari Mohan v. Smt. Mamta) passed by Judge, Family Court, Jhansi, whereby an application 12-A filed by the defendant-appellant under Section 24 of the Hindu Marriage Act, 1955 praying for Rs. 15,000/- as litigation expenses and Rs. 10,000/- as interim maintenance for her and her son, has been rejected.
The appellant has filed the appeal only on two grounds, which is reproduced below :-
"(1) Because, there is no bar u/s 24 of Hindu Marriage Act for grant of litigation expenses irrespective of wife have independent income except the maintenance.
(2) Because, even though wife is a earning member but suit for divorce has been filed by husband therefore husband is entitled to bear all the litigation expenses."
Along with the aforesaid appeal, the defendant-appellant has filed an affidavit dated 9.10.2011, which is reproduced below-
"1. That, deponent is the defendant-appellant in aforesaid First Appeal as such fully acquainted with the facts deposed to below.
2. That plaintiff respondent filed suit for divorce on the ground that marriage took place on 01.05.1993 under Hindu Right and Custom and from wedlock a son born who residing with the mother since beginning she did not want to live in Kasba but to live separately at District head Quarter and used to destroyed house hold goods and filed criminal case for cruelty and demand of dowry. Since 1994 he is paying maintenance to the son and wife through marriage took place in 1993 as such relive claim for divorce. A true copy of plaint suit No. 353 of 2010 is being filed herewith and marked as Annexure no.1 to this affidavit.
3. That defendant Smt. Mamta Verma filed an application claiming litigation expenses lumb-sumb Rs. 150,00/- Rs. A true copy of application is being filed herewith and marked as Annexure no.2 to this affidavit.
4. That objection was filed by husband denying the right of maintenance and litigation expenses. A true copy of objection is being filed herewith and marked as Annexure no.3 to this affidavit.
5. That a criminal case was lodged against the husband on which Additional Chief Judicial Magistrate in respect of Criminal Trial u/s 498A IPC awarded 6 month rigorous imprisonment and Rs. 1000/- fine and in default one month further rigorous imprisonment by judgment and sentence dated 30.06.2000. A true copy of the judgment dated 30.06.2000 is being filed herewith and marked as Annexure no.4 to this affidavit.
6. That Principal Family Judge rejected the application for award of litigation expenses by judgment and order dated 12.09.2011.
7. That appellant is filing present First Appeal and there is every hope in success of the same therefore, it is in the interest of justice necessary to award Rs. 15,000/- for entire litigation expenses and Rs. 100/- per date fixed in the case for Misc. expenses, otherwise the appellant will suffer irreparable loss injury which cannot be compensated."
Section 24 of the Hindu Marriage Act,1955 provides as under :-
"24. Maintenance pendente lite and expenses of proceedings.-Where in any proceeding under this Act it appears to the court that either the wife or the husband, as the case may be, has no independent income sufficient for her or his support and the necessary expenses of the proceeding, it may, on the application of the wife or the husband, order the respondent to pay to the petitioner the expenses of the proceeding, and monthly during the proceeding such sum as, having regard to the petitioner's own income and the income of the respondent, it may seem to the court to be reasonable :
Provided that the application for the payment of the expenses of the proceeding and such monthly sum during the proceeding, shall, as far as possible, be disposed of within sixty days from the date of service of notice on the wife or the husband, as the case may be."
Thus, interim maintenance and litigation expenses, under Section 24 of the Act, 1955, may be directed to be paid, if it appears to the court that either the wife or the husband, as the case may be, has no independent income sufficient for her or his support and the necessary expenses of the proceeding, it may, on the application of the wife or the husband, order the respondent to pay to the petitioner the expenses of the proceeding, and monthly during the proceeding such sum as, having regard to the petitioner's own income and the income of the respondent, it may seem to the court to be reasonable.
Perusal of the ground of appeal, which have been quoted above, and the affidavit filed by the defendant-appellant, as quoted above, shows that the defendant-appellant neither taken any ground nor has stated in affidavit that she has no independent income sufficient for her or his support and to meet the necessary expenses of the proceedings.
In the impugned judgment and order, the Court below has recorded a finding that the defendant-respondent is the Assistant Teacher in a Government Primary School and she draws salary of Rs. 25,000/- per month. It has been further observed that the defendant-appellant has suppressed the fact of her being an Assistant Teacher in Government Primary School. It has also been observed that plaintiff-respondent has been paying a sum of Rs. 1500/- towards maintenance as per order passed in Case No. 251 of 1994. On these facts, the Court below came to conclusion that the defendant-appellant has been earning sufficient income and in another case, some amount towards maintenance is being paid by the plaintiff-respondent to the defendant-appellant. The Court below also observed that, in the event, it appears to the defendant-appellant that the amount granted under Section 125 Cr.P.C. is insufficient, then, she has the remedy for enhancement of the amount.
Considering the facts and circumstances, as briefly noted above, and in absence of any ground taken by the defendant-appellant in the memorandum of appeal, that she has insufficient income or no income for her support and to meet necessary expenses of the proceeding, we find that the impugned judgment and order dated 12.09.2011 passed by the Court below cannot be interfered with. Thus, impugned judgment and order does not suffer from any illegality.
The appeal is wholly misconceived and is liable to be dismissed.
For the reasons afore stated, we do not find any merit in this appeal. Consequently, the appeal is dismissed.
Order Date :- 12.9.2022
Akram
