Sachinsingh Baldeosingh Chauhan vs Sau. Rajeshwari W/O. Sachinsingh ...
2016 Latest Caselaw 110 Bom

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                 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, 
                            NAGPUR BENCH, NAGPUR.




                                                                 
                                   Writ Petition No. 5592 of 2015

     Sachinsingh Baldeosingh Chauhan,  
     Aged about 34 years, Occ. Lecturer, 




                                                                
     R/o Sahayog Nagar, Nanded, 
     Tah. and District Nanded.                                                        .... Petitioner

               // Versus // 




                                                
     Sau. Rajeshwari w/o Sachinsingh Chauhan, 
     aged about 29 years, Occ. Service, 
                             
     R/o C/o Pratapsingh Biharisingh Suryavanshi, 
     Plot No. 54, Chatrapati Lay-out, 
     Tah. Bhadravati, District Chandrapur.                          .... Respondent
                            
     Shri V. N. Patre, Advocate for the petitioner 
     Mrs. P. M. Chandekar, Advocate for the respondent 
      

                                                    CORAM : Prasanna B. Varale, J.

                                                    DATE     : 26-2-2016.
   



     ORAL JUDGMENT

Heard Shri Patre, learned counsel for the petitioner and

Mrs. Chandekar, learned counsel for the respondent.

2. Rule. Rule made returnable forthwith.

3. The petitioner challenges the order passed by the learned Civil

Judge Senior Division, Warora thereby allowing the application partly

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seeking maintenance pendente lite and litigation expenses.

4. Few facts giving rise to the present petition can be summarized

as follow :

The petitioner and the respondent are well qualified persons. The

petitioner at his credit is having academic qualification of B.E. whereas the

respondent, a more qualified lady than the petitioner, is having at her

credit the academic qualification of B.E. and M.Tech. The marriage

between the petitioner and the respondent was solemnized on 10-11-2008.

It seems that within short span of matrimonial life, the petitioner and the

respondent could not go along with each other and the parties were not

keeping the matrimonial tie peacefully. It further reveals from the papers

placed on record that the respondent, due to these difficulties, left the

matrimonial home and started residing with her parents. A legal notice

was issued at the instance of the respondent-wife. It seems that the

respondent-wife initiated parallel proceedings viz. one proceeding seeking

maintenance under Section 125 of the Code of Criminal Procedure and

another an application was filed seeking maintenance pendente lite and the

litigation charges under Section 24 of the Hindu Marriage Act. The Civil

Judge Senior Division, by allowing the application partly, directed the

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husband to pay Rs. 6,000/- per month to the petitioner herein towards

maintenance pendente lite from the date of the application till the decision

of the petition and further directed to pay Rs. 10,000/- to the wife towards

litigation charges and travelling expenses.

5. Shri Patre, learned counsel for the petitioner vehemently

submitted that the order passed by the learned Civil Judge Senior Division

is unsustainable on more than one counts. The first limb of arguments of

Shri Patre, the learned counsel is the petitioner who was directed in the

proceedings initiated for grant of maintenance under Section 125 of the

Code of Criminal Procedure to pay interim maintenance at the rate of

Rs. 3,000/- per month and when this fact was brought to the notice of the

learned Civil Judge Senior Division in the written submissions of the

petitioner, the learned Civil Judge Senior Division ought not to have

burdened the petitioner with a double alimony/maintenance. The next

limb of the submission of Shri Patre, learned counsel is in view of the

provisions of Section 24 of the Hindu Marriage Act, the award of

maintenance pendente lite and the expenses of proceedings would be

dependent on the material fact that is the capacity of earning of any of the

spouse. It was the submission of learned counsel Shri Patre that when the

application was filed seeking maintenance pendente lite, the respondent

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was already getting an amount of Rs. 3,000/- as an interim maintenance

and the respondent-wife who on the backdrop of her academic

qualification was appointed as a Lecturer in the year 2012 in a engineering

college at Nagpur and again in year 2013 in another engineering college,

left her job on her own will and wish could not have been said that of

having incapacitated to earn income for her support. Shri Patre, learned

counsel in support of his submission placed reliance on certain judgments.

Shri Patre then submitted that the petitioner has approached this Court by

filing the present petition on 21-8-2015 and subsequent to filing of the

petition, the application seeking maintenance under Section 125 of the

Code of Criminal Procedure filed at the instance of the respondent-wife

was decided. He submitted that this fact is brought on record by the

respondent-wife herself by filing the reply. He further submitted that the

learned Judicial Magistrate First Class, Bhadrawati granted maintenance at

the rate of Rs. 4,000/- per month to the respondent-wife from the date of

the application i.e. 25-4-2012 till the date of the order i.e. 5-1-2016. The

learned Magistrate further directed the petitioner to pay monthly

maintenance at the rate of Rs. 10,000/- from the date of the order i.e.

5-1-2016 along with costs of the proceedings of Rs. 5,000/-. He further

submitted that the learned Magistrate observed that the amount paid by

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the petitioner during the proceedings would be deducted while calculating

the amount. Thus, it was the submission of Shri Patre that in view of the

latest facts, the respondent-wife who has been awarded maintenance at

the rate of Rs. 10,000/- would not be entitled for the maintenance

pendente lite as prayed by the respondent-wife. Shri Patre then in his

alternative submission submitted that if this Court is of the opinion that

the respondent-wife is entitled for maintenance pendente lite in case the

amount awarded by the Civil Judge Senior Division, Warora of Rs. 6,000/-

per month is the amount in exorbitant and heavily burdensome amount on

the petitioner on the backdrop of the fact that the respondent on her own

will and wish resigned from the job and as such, she is not the person

incapacitated for earning.

6. Mrs. Chandekar, learned counsel for the respondent

vehemently opposed the submissions of Shri Patre, learned counsel for the

petitioner. Mrs. Chandekar, learned counsel submitted that the order

impugned in the present petition and passed by the learned Civil Judge

Senior Division is clearly on the backdrop of the fact that the petitioner

who is working as a Lecturer in the Government Polytechnic College,

Jintur earned gross handsome salary of Rs. 70,000/- per month. Learned

counsel for the respondent further submitted that though the respondent-

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wife is well qualified and though she was working as Lecturer for some

time in the engineering colleges, because of the family responsibilities, the

respondent-wife was unable to continue with the work of Lecturer. It was

submitted by Mrs. Chandekar, learned counsel that the respondent-wife

was working as Lecturer in Nagpur and the respondent-wife who has to

look after her parents, who are aged, resides at Bhadrawati. Further

submission of Mrs. Chandekar, learned counsel was even though at

present, in view of the order passed by the learned Judicial Magistrate

First Class, Bhadrawati, the petitioner-husband is directed to pay

maintenance at the rate of Rs. 10,000/- per month, there is also a rise in

the salary of the petitioner-husband. She further submits that the

petitioner-husband may also be entitled for the benefits of the salary rise

and considering this fact, the amount awarded by the learned Civil Judge

Senior Division, Warora is not exorbitant amount. It is further submitted

by Mrs. Chandekar, learned counsel that considering the status of the

parties and more particularly, the respondent-wife's status being a well

qualified lady and considering the living standards, the amount granted by

way of maintenance by the learned Judicial Magistrate First Class,

Bhadrawati and the maintenance pendente lite along with litigation

expenses by the learned Civil Judge Senior Division are not the amount

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which can be said to be exorbitant amount.

7. On the backdrop of the rival submissions of the learned

counsel appearing for the parties above, I have gone through the material

placed on record by the learned counsel Shri Patre. There is no dispute

on the fact that the marriage between the parties was solemnized on

10-11-2008 and within a span of 3 to 4 years, the parties were not having

their cordial matrimonial relations. The documents placed on record,

namely, the notice issued by the petitioner-husband, the application filed

by the respondent-wife for interim maintenance, the order passed by the

learned Magistrate granting interim maintenance at the rate of Rs. 3,000/-

per month dated 31-7-2012 show that the parties levelled various

allegations against each other and the matrimonial tie between the parties

was weakened. Issue for consideration of this Court is, whether the order

passed by the learned Civil Judge Senior Division challenged in the present

petition granting maintenance pendente lite along with litigation expenses

is sustainable on the ground raised in the petition and as advanced by the

learned counsel for the petitioner that the petitioner is subjected to a

double maintenance and the respondent not being incapacitated to earn to

support herself. The documents placed on record show that the

respondent-wife was working in a private engineering college at Nagpur in

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the year 2012 as a temporary Professor/Lecturer and was drawing salary

as per the university rules. The respondent-wife joined the said college

and on her own will and wish, tendered resignation on 13-8-2012. A copy

of the information received by the petitioner from the Principal of the said

college is placed on record. The other document placed on record shows

that the respondent, on 1-4-2013, submitted resignation to the Principal of

one private college. The document placed on record i.e. order issued by

the Principal of one Rajiv Gandhi College of Engineering and Research,

Nagpur shows that on receiving resignation from the respondent-wife, the

same was accepted by the college and she was relieved from the service on

1-4-2013. Thus, the fact of respondent, having a good academic

qualification at her credit and was working in two engineering colleges in

the year 2012 and 2013 respectively, left the said job on her own will and

wish, clearly shows that there is no hindrance for the respondent-wife to

get a good job in consonance with her academic qualification but for her

own will and wish, the respondent-wife is not continued with the said

job though she availed of such job.

8. There is also no dispute that the petitioner-husband was

directed by the learned Magistrate, Bhadrawati to pay interim

maintenance at the rate of Rs. 3,000/- per month by order dated

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31-7-2012. This fact was submitted by the petitioner-husband in his reply

filed before the learned Civil Judge Senior Division. The order impugned

in the present petition passed by the learned Civil Judge Senior Division

nowhere refers to this fact which was brought on record by the petitioner-

husband. As an attempt was made by the learned counsel Mrs. Chandekar

to submit that the learned Civil Judge Senior Division passed the order on

the backdrop of the income of the petitioner-husband which was nearly

Rs. 70,000/- and this was the submission made before the learned Civil

Judge Senior Division at the instance of the respondent-wife. The learned

Civil Judge Senior Division had an occasion to consider the salary

certificate placed on record of the petitioner-husband and in clear words it

was observed by the Civil Judge Senior Division that the petitioner-

husband was receiving the salary for the period October, 2014 to January,

2015 at the rate of Rs. 45,162/- per month and after deductions, it was

Rs. 38,358/- per month. Then, the learned Civil Judge Senior Division

observed that from February, 2015, there was a rise in the salary due to

increase in dearness allowance and the petitioner is earning salary at the

rate of Rs. 38,000/- to 40,000/- per month after all necessary deductions.

Learned Civil Judge Senior Division then by observing that there is nothing

on record to show that the applicant (respondent-wife herein) has her own

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source of income to maintain herself and she is required to attend the

Court in the case initiated by the petitioner-husband and is required to

spend Rs. 200/- each for herself and her father to attend the dates as

travelling expenses, directed the petitioner-husband to pay Rs. 10,000/-

towards litigation charges and travelling expenses.

9. As the learned counsel Shri Patre raised a ground of capacity

of the respondent-wife to earn to support herself, the submission is to be

considered on the backdrop of the qualification of the respondent-wife. As

stated above and at the cost of repetition, it will be not out of place to

state that the respondent-wife is a well qualified person having a post

graduate degree in a technical field like engineering. The respondent-wife

was also working in engineering colleges for year 2012 and 2013. The

respondent-wife left the job by tendering resignation. Thus it is more than

clear that there is no hurdle for the respondent-wife on the backdrop of

her academic qualification to get a good job for her support. An attempt

was made by the learned counsel for the respondent that the respondent-

wife was to leave the job for her family constraints as she was to look after

her parents. On perusal of the material placed on record, it reveals that in

the application submitted by the respondent-wife, it is only submitted that

due to family problem, she was tendering the resignation. An attempt was

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also made by the learned counsel for the respondent that as the

respondent-wife to look after her parents, she left the job. Now,

considering the material, if one assess the material, it reveals that the

respondent-wife was working at Nagpur as a Lecturer. Her parents are

residing at Bhadrawati. Considering the distance and the time span for

travelling from Bhadrawati to Nagpur, it cannot be said that the

respondent-wife could not have managed to attend the job and also attend

her family at Bhadrawati because the distance between Nagpur and

Bhadrawati is more or less 140 Kms and time for travelling is nearly two

hours. This Court is dealing in details with these aspects on the backdrop

of the submissions of the learned counsel Shri Patre and a judgment relied

on by Shri Patre in the case of Smt. Mamta Jaiswal Vs. Rajesh Jaiswal

reported in 2000(4) MPHT 457. It will be useful for our purpose to refer

to this judgment of the Madhya Pradesh High Court in which the facts are

somewhat identical. The Madhya Pradesh High Court considering the fact

that the wife was having academic qualifications such as M.Sc., M.C., M.Ed

and was working as Teacher for some time in one college and left that job,

while dealing with the aspect of maintenance pendente lite and litigation

expenses under Section 24 of the Hindu Marriage Act, the Madhya Pradesh

High Court observed thus :

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"6. 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 or her expenditure ? Whether such spouse should be permitted to get pendente 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 in spite 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 pendente 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 adversory 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 Eduation College. It impliedly means that she was possessing sufficient experience. How such a lady can remain without service ? It

really puts 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, can not 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, sits 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, atleast,

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has to make sincere efforts in that direction. If this criteria is not applied, if this attitude is not adopted, there would be a tendency

growing amongst such litigants to prolong such litigation and to milk out the adversory 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 pendente 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 healthyness of the society. It has enacted for needy persons who

in spite of sincere efforts and sufficient efforts are unable to support and maintain themselves and are required to fight out the litigation jeopardising their hard earned income by toiling

working hours."

10. This Court see no reason to take a different view on the

backdrop of the facts referred to above. This Court is aware and can

certainly take judicial note that the provision under Section 24 is certainly

in support of a spouse who is unable to support herself. This Court is also

aware and can take judicial note of the reality, such as, a lady, an illiterate

having either no means or at mercy of her parents is unable to support

herself because of her illiteracy or lesser qualification cannot be equated

with a lady who is having better academic qualifications, as such, having

capacity to earn reasonable income through some employment.

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11. Learned counsel Shri Patre also placed reliance on a judgment

of the Calcutta High Court in the case of Sailendra Nath Ghosh Vs. State

of West Bengal and anr. reported in I(1998) DMC 669 in support of his

submission that the petitioner cannot be burdened with double

maintenance, one under Section 125 of th Code of Criminal Procedure and

another under Section 24 of the Hindu Marriage Act. The Calcutta High

Court dealing with Section 24 of the Hindu Marriage Act observed that :

"The order under Section 24 may be temporary and not a final determination and it is true that if an order for permanent alimony is made under Section 25, it will automatically

supersede the alimony pendente lite. But if the amount of maintenance pendent lite is discernible from the order under Section 24 and if the said amount is paid by the husband, there is no reason for disallowing adjustment of such payments against

the amount awarded under Section 125, even if the latter amount is quite sufficient for the wife's maintenance. If such

payment is temporary, the adjustment will also be temporary and will continue to be made as long as the payment would be made. The mere fact that the order under Section 24 is temporary cannot thus constitute a good ground for making the claim for adjustment inadmissible if it is otherwise admissible for

the purpose. Adjustment cannot, however, be allowed as a matter of course. Whether such a plea would be admissible would depend upon facts and circumstances of each particular case."

12. Considering the above referred facts and the judgment relied

on by the learned counsel for the petitioner Shri Patre, though it was

submitted by Mrs. Chandekar, learned counsel for the respondent that now

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there is a rise in the salary of the petitioner-husband and he may draw

more salary than what he was drawing in the year 2015 and, as such, the

interim maintenance pendente lite at the rate of Rs. 6,000/- per month

awarded by the learned Civil Judge Senior Division is just and proper, I am

unable to accept this submission for the simple reason that the material for

awarding of such maintenance was before the learned Civil Judge Senior

Division till the year 2015 which clearly shows that the salary drawn by

the petitioner-husband was in between Rs. 38,000/- to 40,000/- after all

necessary deductions. If there is rise in the salary of the petitioner, the

respondent is entitled to avail the remedy available under law for seeking

enhancement of the maintenance which was awarded finally by the

learned Judicial Magistrate First Class in the proceedings under Section

125 of the Code of Criminal Procedure at the rate of Rs. 10,000/- per

month. Considering all these aspects, in my opinion, the order passed by

the learned Civil Judge Senior Division, Warora dated 15-4-2015 needs

interference at the hands of this Court. The order passed by the learned

Civil Judge Senior Division, Warora is modified in view of the fact that the

Hindu Marriage petition is pending before the learned Civil Judge Senior

Division, Warora and in an application seeking maintenance pendente lite

and litigation expenses, the order passed by the learned Civil Judge Senior

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Division, Warora is modified to the effect that :

2. The petitioner-husband is directed to pay Rs. 2,000/-

(Rupees Two Thousand Only) per month to the applicant-

respondent towards maintenance pendente lite from the date of

application till the decision of this petition.

Insofar as the directions to pay Rs. 10,000/- towards litigation charges

and travelling expenses are concerned, considering the fact that the

respondent-wife who has to attend the Court proceedings along with her

father on each date and she is required to spend Rs. 200/- for travelling,

the order directing the petitioner to pay Rs. 10,000/- to the applicant

towards litigation charges and travelling expenses needs no indulgence or

interference and the same is maintained.

The writ petition is disposed of in above terms.

JUDGE

wasnik

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