Chitra vs Pankaj Kashyap
2011 Latest Caselaw 5576 Del

$~
*     IN THE HIGH COURT OF DELHI AT NEW DELHI


+            CM(M) 1344/2011 & CM No. 20851/2011

                           Judgment delivered on: 18th November, 2011



      CHITRA                                  ..... Petitioner

                           Through:      Mr. Vineet Mehta, Adv.

                      versus


      PANKAJ KASHYAP                         ..... Respondent

                           Through       Nemo.

CORAM:

HON'BLE MR. JUSTICE KAILASH GAMBHIR

1. Whether the Reporters of local papers may
   be allowed to see the judgment?                          Yes

2. To be referred to Reporter or not?                          Yes

3. Whether the judgment should be reported               yes
   in the Digest?

KAILASH GAMBHIR, J.(Oral):



1.           By   this    petition   filed   under    Article     227   of   the

Constitution of India, the petitioner seeks to challenge the order

dated 1.9.2011 passed by the learned Family Court, whereby the

application of the petitioner under Section 24 of the Hindu Marriage

Act to seek interim maintenance during the pendency of the divorce

petition was dismissed.

2. Arguing for the petitioner, learned counsel Mr. Vineet

Mehta submits that the learned Family Court has dismissed the said

application of the petitioner only on the ground that the petitioner

in her application has nowhere stated that she is not earning

anything or the income earned by her is not sufficient for her to

support herself. Counsel submits that the learned family court also

observed in the impugned order that the petitioner was even silent

about whether she is getting any income out of any job or any

profession and she was also silent about the expenses which she

has to bear for her sustenance. The contention raised by the

counsel for the petitioner is that in para 5 of the application under

Section 24 of the Hindu Marriage Act, the petitioner clearly

disclosed that the respondent husband has neglected and refused

to maintain her and malafidely never provided any kind of

maintenance allowance to her. Counsel further submits that in the

divorce petition under section 13(1)(ia), the petitioner in para 36

has clearly disclosed that she is financially dependent on her

parents after she was ousted from her matrimonial home. The

submission of the counsel for the petitioner is that merely because

the petitioner in her application did not specifically plead that she

was not having any independent income for her sustenance, it

should not have deprived the petitioner for the grant of maintenance

amount as the total reading of the averments made by her in the

divorce petition as well as in her Section 24 application it was

manifest that the petitioner has stated that she is financially

dependent on her parents which would clearly mean that the

petitioner has no independent source of income. Counsel also

submits that in the absence of any specific averments made by the

petitioner in her application, the learned Family Court could have

given a fresh opportunity to the petitioner to file a better affidavit

or could have taken statement of the parties under Order X of CPC

so as to know the correct financial status of the parties, instead of

dismissing the application of the petitioner by adopting such a hyper

technical approach.

3. I have heard learned counsel for the petitioner at

considerable length and gone through the impugned order passed

by the learned Family Court.

4. In the present case, the petitioner had filed a divorce

petition under Section 13(1) (ia) of the Hindu Marriage Act to seek

dissolution of her marriage with the respondent. Simultaneously, the

petitioner had also filed an application under section 24 of the HMA

seeking Rs.75,000/- towards interim maintenance and Rs.22,000/- as

litigation expenses. In para 36 of the divorce petition, the petitioner

has clearly averred that for her sustenance she was dependent upon

her parents after she was ousted from her matrimonial house and

in para 5 of the application under section 24 , the petitioner had

clearly averred that her husband has neglected and refused to

maintain the petitioner and in fact had deliberately and malafidely

never provided any maintenance allowance to her. She has also

stated that the income of the respondent is Rs. 1.5 per month and

that she is also entitled to maintain the same standard of living as

maintained by the respondent and the respondent is legally,

socially and morally bound to maintain the petitioner and the

respondent has no other liability except to maintain the petitioner.

In reply to the said application the respondent has taken a stand

that the petitioner is B.A and is earning an income to the tune of

Rs.35,000/- per month and is thus not entitled to the grant of interim

maintenance.

5. The learned trial court has dismissed the application of

the petitioner merely on the ground that the petitioner has nowhere

stated in the application that the she is unable to maintain herself

and is thus not entitled to maintenance. No doubt the petitioner

ought to have made a specific averment in the application to plead

that she has no independent source of income in terms of the

requirement of Section 24 of the Hindu Marriage Act, but

nevertheless a mere omission on the part of the petitioner cannot

deny her the said relief of interim maintenance. The language of

Section 24 of the Hindu Marriage Act is quite clear as it envisages

that where in any proceeding under this Act, it appears to the court

that either the wife or the husband has no independent source of

income sufficient for her or his support, the court may pass order

granting interim maintenance to the applicant spouse. Although,

the said provision uses the word may which does not bind the court

to grant maintenance to the applicant but through judicial

pronouncements the courts have set a judicial trend regarding the

manner in which Section 24 applications are decided, the factors to

be taken into account in granting maintenance, the quantum, the

date of grant of maintenance, etc. which have attained a crystalised

legal position.

6. Section 24 is a discretionary relief to be given by the

court. This discretion has to be exercised on sound judicial principles

and reasoning and not in an arbitrary manner. It is a common

tendency for the parties to hide their actual income to escape the

liability of paying maintenance amount to the totally dependent

spouse and it is then the court has to satisfy itself and call for proof

in case of rival claims of the parties. The learned Family Court in the

present case has adopted a hyper technical approach by dismissing

the petition on the ground that the petitioner had not stated that she

did not have any independent source of income whereas in the reply

the respondent has claimed that the petitioner has a monthly income

sufficient to support herself. The learned court should have dug a

little deeper in calling for the rejoinder of the petitioner or affidavit

or further proof required to be adduced so as to able to decide the

application on merits rather than dismissing it on procedural

niceties. Here it would be relevant to the judgment of eth Punjab &

Haryana High court in the case of Smt.Satish Bindra vs. Surjit

Singh Bindra AIR1977P&H383 wherein the court held as under:

"3. Mr. Gurbachan Singh, who appears for the petitioners, has laid particular emphasis on the fact that a copy of an agreement executed earlier between the parties was on the record of the case before the trial Court in which the husband had agreed to pay to the petitioner Rs. 700 per mensem on account of maintenance. The factum of the copy of the agreement being on the record of the trial Court is denied by the learned counsel for the husband. Be that as it may, it is clear that the trial Court has not passed any order in accordance with law on the application of the petitioner. If the averments of the petitioner contained in her affidavit were not considered enough, she should have been afforded an opportunity to give supplementary affidavit or affidavits on any point required by the Court or if the Court so required even to lead evidence in the course of a summary inquiry, at the end of which proper order should have been passed. Since the order is not supported by any reason and does not discuss the pros and cons of the rival versions of the parties relating to the quantum of income of the husband, I have to set aside the order of the trial Court."

In the present case as well, the order is not supported by any

reasons and the application has been dismissed in an obscure

manner. Even if the learned Family Court had felt that the there was

some averment lacking in the application, then it should have given

fresh opportunity to the petitioner to file a fresh affidavit disclosing

her income and her exact financial status and even the court has

ample powers to take the statements of the parties under Order X

of the CPC and even the parties could have been directed to file

affidavit in terms of Form No.16-A Appendix E under Order XXI Rule

41(2) of the CPC. No such recourse was adopted by the Family

Court and instead has dismissed the application of the petitioner

denying her the right of interim maintenance and also forcing her

to approach this court to file present petition.

7. The power of the High Court under Article 227 of the

Constitution of India is to keep the inferior courts and tribunals into

their bounds and see that they have exercised their duty in a legal

manner. The High court can interfere in the orders of erroneous

assumption, errors apparent on the face of record, arbitrary or

capricious exercise of discretion, a patent error in procedure or

arriving at a finding based on no material. The court finds the

present case fir to exercise its jurisdiction under Article 227 and if

not exercised it would lead to a grave miscarriage of justice. This

court is constrained to observe that the approach adopted by the

learned Family Court is totally insensitive which is not expected of

a court discharging the functions of a family court, where more

humane and sensitive approach is required. The injudicious

approach of the learned Family Court is not appreciated.

8. In the light of the foregoing, this Court is of the view that

the facts of the case do not necessitate directing notice upon the

respondent. The matter is accordingly remanded to the learned

Family Court for fresh decision on the application of the petitioner.

The petitioner is directed to file a better affidavit disclosing her

correct financial status in the said affidavit. The learned Family

Court shall decide the said application of the petitioner on its merits.

9. With the aforesaid directions, the petition stands

disposed of.

KAILASH GAMBHIR,J

NOVEMBER 18, 2011 mg