Suman Kaushik vs N P Kaushik
2013 Latest Caselaw 196 Del

*     IN THE HIGH COURT OF DELHI AT NEW DELHI

                                               Date of Decision: 14.01.2013
+     CM(M) 108/2009

SUMAN KAUSHIK                                               ..... Petitioner
                             Through    Mr. S.Rajappa, Advocate along with
                                        petitioner in person.

                    versus

N P KAUSHIK                                                ..... Respondent
                             Through    Mr. D.P.Kaushik, Advocate along
                                        with respondent in person.

CORAM:
HON'BLE MS. JUSTICE VEENA BIRBAL

VEENA BIRBAL, J.

1. By way of this petition under Article 227 of the Constitution of India, petitioner/wife has challenged impugned order dated 26.11.2008 by which learned ADJ, Delhi has disposed of two applications of petitioner/wife, one dated 07.03.2001 under Section 24 and 26 of Hindu Marriage Act seeking enhancement of maintenance of child Geetika and for the grant of litigation expenses. The other application was filed on 17.01.2005 on the same provision of law wherein she had prayed for educational expenses and enhancement of maintenance of daughter. The above applications were filed in the divorce petition instituted by respondent against petitioner/wife.

2. The facts leading to the filing of the present petition are that:-

The parties were married to each other on 06.07.1987 according to Hindu rites and ceremonies. On 15.01.1988 a daughter Ms. Geetika was

born out of their wedlock. The child since birth has lived with the mother. The parties are living separately since 16.10.1988. On 08.01.1997 respondent had filed a divorce petition against petitioner/wife seeking dissolution of marriage on the ground of cruelty and desertion.

3. During the pendency of the divorce petition before the learned trial court, the petitioner had filed an application dated 30.04.1997 under Section 24 and 26 of HMA for grant of interim maintenance to the child of the parties born on 15.01.1988. The learned ADJ vide order dated 28.10.1999 had fixed an amount of Rs. 3,000/- per month as an interim maintenance of the child to be equally shared by both the parties and the same was granted from date of application. The said order was challenged by the petitioner/wife by filing a civil revision no. 210/2000 before this court praying for enhancement of the maintenance from Rs. 3,000/- to Rs. 5,000/- per month and also for payment of litigation expenses. This court vide order dated 27.11.2001 enhanced the interim maintenance of the child from Rs. 3,000/- to Rs. 3,500/- per month w.e.f. April, 1997 to be shared equally by both the parties. The enhancement was with the consent of parties. Thereafter, this court in the aforesaid civil revision vide order dated 26.02.2002, in order to protect the interest of the child who at that time was 14 years of age, directed the parties to get insurance policy for a sum of Rs. 5 lakhs for the benefit of child i.e. ` 2 lakhs by wife and ` 3 lakhs by respondent.

4. During the pendency of aforesaid civil revision, the petitioner/wife had also moved an application on 20.03.2001before the Ld. ADJ for enhancement of interim maintenance of the minor daughter and claimed a sum of Rs. 7,000/- p.m. in view of increased expenses on the upbringing of

the child and also prayed for grant of litigation expenses. Another application was also moved by her on 17.01.2005 wherein she had prayed for the grant of Rs. 2 lakhs as expenses for higher education of the child who at that time was studying in 12th class on the ground that her daughter had joined Aakash Institute, South Ext., New Delhi for private coaching and the wife was incurring expenses of the said institute and she was also taking private tuitions. It was also alleged that she was submitting applications in different colleges/educational institutes for her admission after class 12 th and for that purpose heavy expenses were being incurred towards purchase of forms and demand drafts, etc. The aforesaid two applications were disposed of vide impugned order dated 26.11.2008 which is under challenge before this court.

5. It is also admitted position that vide order dated 28.10.1999 on an application under Section 24 and 26 of the Hindu Marriage Act, when the child was about 11 years of age, the interim maintenance of the child was fixed at Rs.3,000/- p.m. to be shared equally by both the parties and on the challenge of the said order before this court the maintenance was enhanced from Rs.3,000/- to Rs. 3,500/- p.m. w.e.f. April, 1997 vide order dated 27.11.2001 in CR 210/2000. On 26.06.2002, this court in the aforesaid civil revision has ordered that the parties shall get an insurance policy for a sum of Rs. 5 lakhs for the child in order to protect the interest of the child and thereafter, petitioner/wife had taken an insurance policy in the sum of Rs. 2 lakhs in the name of the child and respondent had also taken a policy at a later date for a sum of Rs.3 lakhs so as to assure the career of the child.

6. As noted above, with the consent of parties, the interim maintenance was enhanced on 27.11.2001 by this court from ` 3,000/- to ` 3,500/- p.m. to

be shared equally by both the parties. Thereafter, this court vide order dated 26.02.2002 ordered for purchase of LIC policy for the benefit of child. The relevant portion of the said order is reproduced as under:-

"Present: Mr.P.Banerjee for the petitioner.

Mr.Raman Duggal for the respondent.

CR 210/2000 & CM 739/2000

Heard.

Though it appears that the both the parties are suffering from ego problem without considering the fate and future of the 14 years old daughter yet in order to protect the interest of the child it is essential that both the parties should assure this Court that they have planned an insurance policy of appropriate amount commensurate with there own status to provide for continuation of the education of the child and her marriage. They may have to get insurance for a sum of ` 5.00 lakhs, seeing their income, for nobody knows about what is to happen tomorrow. xxxx xxxx xxxx xxxx xxxx xxxx xxxx xxxx xxxx xxxx xxxx xxxx xxxx xxxx xxxx xxxx xxxx xxxx xxxx xxxx xxxx xxxx xxxx xxxx xxxx xxxx xxxx xxxx xxxx xxxx xxxx xxxx xxxx xxxx"

7. When the interim maintenance was already enhanced vide order dated 27.11.2001 and there were also order for the purchase of insurance policy for the child, the question of further enhancing the maintenance w.e.f. 20.03.2001 does not arise. The learned ADJ has rightly dismissed the application dated 07.03.2001 vide impugned order dated 26.11.2008.

8. It is contended that the learned trial court did not grant any expenses towards private coaching as well as other expenses towards tuitions and other miscellaneous expenses as stated in application dated 17.01.2005 when

child was a student of 12th Class. It is contended that even enhancement of interim maintenance by ld. ADJ from `3,500/- p.m. to `6,000/- p.m. w.e.f. 17.05.2005 up to the age of majority is a meager amount. It is contended that considering the requirement of child, learned ADJ ought to have granted the relief prayed.

9. On the other hand, stand of respondent is that there is no illegality or error of jurisdiction in the impugned order as such no case for interference is made out.

10. It may be noticed that in the application dated 17.01.2005 wherein the petitioner/wife had claimed for educational expenses, the daughter Gitika of parties was at that time a student of class XII. Apart from her tuition fee she was taking private coaching from `Aakash Institute' and she was also taking private tuitions for mathematics and incurring other expenses for purchasing application forms and getting demand drafts made for various institutes for getting admission in a proper institute. The details of expenses were given in the said application. The ld. ADJ simply dismissed the application by observing that at one place she was claiming `50,000/- and in the prayer clause she is claiming ` 2 lakhs towards expenses, there were contradictory prayers, as such petitioner was not entitled for said expenses. It was also observed that LIC policy for taking care of the educational expenses had already been taken by the parents and the same was sufficient to bear all kinds of educational expenses.

11. It is not denied that the child has done B.Tech in Computer Engineering from SDDIB, District Panchkula, Haryana. The expenses claimed pertains to the period when the child was in class XII. The stand of petitioner was that apart from school expenses the petitioner was incurring

the expenses towards taking coaching from private institutes i.e. Akash Institute, South Extension as well as towards private coaching of maths etc and applying for admissions in various colleges. It may be noticed that there is high competition amongst students and normally class XII students take private coaching/tuitions to secure good ranking in the competitive examinations, for getting admission for higher studies. In these circumstances, the trial court ought to have granted some expenses to the petitioner for meeting the aforesaid expenses. The respondent is an Additional District Judge and the petitioner/wife is a senior class I officer. Even in the year 2005, they were holding higher positions. It is not a case where the parents were not in a position to afford such expenses. In these circumstances, out of the total expenses claimed, the respondent is directed to pay ` 1 lakh which petitioner had incurred towards educational expenses as are claimed in the aforesaid application.

12. It has also come on record that pursuant to the orders of this court dated 26.02.2002 in C.R.No.210/2000 the petitioner/wife has taken LIC policy of ` 2 lakhs for the benefit of the child and the respondent has also taken a policy of ` 3 lakhs. It has also been brought to the notice of this Court that the LIC policy of ` 3 lakhs which has been taken by the respondent will mature when the child will be more than 30 years of age whereas that of the mother had matured when the child was 21 years. When the child had to take admission in B.Tech; the benefit of aforesaid policy was not available to her.

13. It has also been brought to the notice of this Court that suit no. 170/95 was also filed by petitioner/wife against the respondent seeking maintenance for the child under Section 20 of the Hindu Adoption and Maintenance Act,

1956. Now the child has attained majority and the same is being perused by her. That proceedings are still going on before the ld. ADJ. In that proceedings, vide order dated 28th July, 2007 on an application of the plaintiff therein i.e. the daughter of the parties for enhancement of interim maintenance, the same has been enhanced from `3,500/- to `11,000/- per annum w.e.f. 08.07.2007 onwards to be shared equally by both the parties.

14. The ld. ADJ vide impugned order has already enhanced interim maintenance from `3500/- to `6000/- to be shared equally by both the parties from the date of application i.e. 17.05.2005 till the age of majority. The LIC policy for the benefit of the child has also been taken by the respondent as per direction of this court. The maintenance of the child has also been enhanced in the proceedings under Hindu Adoption and Maintenance Act from Rs.3500/- to Rs.11000/- per annum w.e.f. 8.7.2007 and the final order on the main petition is yet to be passed. In these circumstances, no further orders are required on the present petition except that petitioner is entitled for ` 1 lakh as is stated in para 11 above.

With above modification, the impugned order is upheld. The petition stands disposed of accordingly.

VEENA BIRBAL, J JANUARY 14, 2013 kks