Satish Kumar Bargujar vs Suman Chauhan
2006 Latest Caselaw 1525 Del

JUDGMENT

S. Ravindra Bhat, J.

1. This is an appeal under Section 28 of the Hindu Marriage Act; it is directed against the order of the learned additional Judge, in H.M.A. No.06/05, dated 12-12-2005 disposing off the respondent-wife's (hereafter "the wife") application under Section 24 for maintenance. Proceedings for divorce, on the ground of desertion were initiated by the appellant against the respondent; they are pending adjudication.

Brief facts

2. The appellant and the respondent were married on 7-11-2000; they apparently lived together till 21 June, 2003. The wife in her application under Section 24, alleged that she was deserted by the Appellant (hereafter "the husband") when she was in the family way, in an ailing condition and since then she was living with her parents. Her father had been maintaining her and her minor son. It was alleged that the husband had not made any provision for maintaining his wife and son; as a consequence she took up employment as a Class 1V employee in the District and Session's Court Delhi. It was alleged by the wife that she earns a meager salary which is insufficient to maintain herself and the minor son.

3. The husband is working as a Upper Division Clerk ("UDC") in the Central Excise and Gold Contract Tribunal, New Delhi and, according to the wife, he earns more than the wife. The husband's father is a retired pensioner, a former member of the Delhi Police and he is not dependant on him, in financial terms.

4. It was contended by the husband, in his defense to the application for maintenance, that the wife's family is well off, that every Advocate in Delhi is known to them and that she would not have to spend on legal expenses. The husband also stated that he had borrowed, a personal loan of Rs.97, 000/- and is repaying it in monthly Installment of Rs.2, 506/- to the State bank of India. It was also claimed that the husband could not be made liable for the maintenance of the wife, who is employed, and has sufficient financial backing to look after herself and the minor child.

5. After hearing the application filed by the wife under Section 24 in H.M.A. No.06/05 the trial court granted pendente lite maintenance for a composite sum of Rs.2,500/- for both the Respondent and her son till the disposal of the petition, apart from litigation expenses of Rs.10, 000/-.

6. The husband has assailed the impugned order, on the ground that the amount directed to be paid as maintenance was not justified. It was averred that the trial court has not considered the materials in their proper perspective. The court, it is averred, overlooked the fact that the respondent wife is working; in addition, her father is working in the office of the District Court, and her brother is an advocate. The wife, thus, has sufficient family support and backing. On the other hand, the petitioner is under an obligation to look after the welfare of his parents. Although his father is a pensioner, the husband, being the only able bodied and earning member of his family, has to take care of his aging and ailing parents. He is out of town freqently, since the nature of his employement impels him to accompany the President of the Tribunal on tours. All these add to his financial burdens; the impugned order would be a crippling blow to him. The petitioner husband also has to discharge his financial obligation to repay the advances secured by him.

7. Learned Counsel for the appellant reiterated the averments in the appeal. He also submitted that the petitioner husband is under heavy pressure, because of his family and social obligations. Though his father is a pensioner, and the petitioner is living with his parents, his position as the sole earning member implies that he has to play host to all family functions, and extend hospitality to relatives. In addition, he has to repay the amounts borrowed from the bank. The respondent wife, on the other hand, has no such obligations; she is earning and has the full moral and financial support of her parents and brother.

8. The learned Additional District Judge had, while considering the rival contentions of the parties, reasoned that the monthly income of the husband, as per his submission, was Rs. 8568/-. His salary certificate disclosed the income to be Rs. 10,543/- as in August, 2005, with GPF contribution of Rs. 1000/- and GPF advance of Rs. 500/-. After all deductions, the net amount was noticed to be Rs. 8568/- per month. The court recorded that the wife, working as a Class IV employee, was earning Rs. 5689/- per month, which was insufficient for her maintenance and that of the minor child. The court held that her father's income or brother's status were not relevant factors, and the facts disclosed that the petitioner husband was neglecting to maintain his wife and minor child. For these reasons, the direction to pay Rs. 2500/- per month were issued, in the impugned order.

9. The above facts show that the trial on the main dispute between the parties is yet to take place. The impugned order is premised primarily on the earnings of the appellant, and the need of the wife and minor child. It has taken into consideration the deductions from the salary of the petitioner, as well as the circumstance that a loan has to be repaid by him. In these circumstances, the amount of pendente lite maintenance was fixed at Rs. 2500/- per month.

10. The court, while considering the merits of an application for grant of interim maintenance, under Section 24, has to necessarily arrive at a prima facie determination about the earning capacity of the rival claimants. The determination cannot be made with exactitude; it is essentially interim in nature. If these considerations are kept in mind, the scope of appellate jurisdiction is even narrower. Unless the approach of the trial court is shown to be glaringly erroneous, or perverse, the existence of an alternative view itself would not justify substitution of the interim determination. The averments and contentions made by and on behalf of the appellant in these proceedings, do not justify adoption of an opinion or reasoning other than that taken by the trial court. There is no perversity or error in the impugned order; it is unexceptionable. I am therefore of the opinion that the appeal is unmerited.

11. The appellant's counsel had, during the course of hearing, handed over a sum of Rs. 4500/- towards arrears for three months, in accordance with the interim order in these proceedings, dated 22-2-2005, whereby the court had directed that payment of Rs. 1500/- would be sufficient, as an ad-interim measure, to the respondent, during pendancy of these proceedings. In view of the opinion expressed in the present appeal, affirming the view of the trial court, the appellant shall comply with the order of the trial court, and make all payment, in compliance with the impugned order, within six weeks from today. He is directed to file an affidavit disclosing compliance with the present directions, before the trial court, within eight weeks.

12. The appeal is accordingly dismissed. In the circumstances of the case, the appellant shall bear the costs of these proceedings, which are quantified at Rs. 7500/-; they shall be paid to the respondent, within eight weeks.