Delhi High Court
D S P P vs R & A. on 18 February, 2019
$~12
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of Judgment: 18th February, 2019
+ MAT.APP.(F.C.) 26/2017
DSPP ..... Appellant
Through: Mr. Ranjan Kumar and Mr. Shyam
Prakash, Advocates
versus
R & A. ..... Respondents
Through: Mr. A.K. Pandey, Advocate
CORAM:
HON'BLE MR. JUSTICE G.S. SISTANI
HON'BLE MS. JUSTICE JYOTI SINGH
G.S. SISTANI, J. (ORAL)
CM.APPL 7219/2018(restoration)
1. This is an application filed by the applicant/appellant seeking
restoration of the appeal which was dismissed on the ground of non-
prosecution on 19.09.2017.
2. Heard.
3. For the reasons stated in the application, the order dated 19.09.2017 is
recalled. The appeal is restored to its original number and file.
4. The application stands disposed of.
MAT.APP.(F.C.) 26/2017
5. Challenge in this appeal is to the order dated 14.09.2016 passed by the
Family Court on an application filed by the respondent/wife under
Section 24 of the Hindu Marriage Act (hereinafter referred to as
MAT.APP.(F.C.) 26/2017
'HMA') seeking maintenance for herself and her minor son along with
the litigation expenses. By virtue of the said order, interim
maintenance of Rs. 16,000/- per month was awarded only to the minor
son, who was about 5 and a half year at the time of the passing of the
impugned order.
6. The necessary facts required to be noticed for the disposal of this
appeal are that the marriage between the parties was solemnized on
24.12.2008 at Delhi as per Hindu rites and ceremonies. A son was
born out of the said wedlock on 09.03.2011, who is in the care and
custody of the respondent/wife. As per the appellant, the parties have
been residing separately since 19.09.2015. The petition seeking
divorce under Section 13 (1)(ia) of HMA was filed on 18.08.2015
which is pending.
7. Learned counsel appearing for the appellant/husband submits that the
Family Court has erred in not taking into account the deductions in the
salary of the appellant herein while fixing the maintenance. Learned
counsel has strenuously urged that in addition to the Income Tax, the
appellant is also paying for the home loan, personal loan, insurance
premium and also bearing his personal expenses and thus, the counsel
prays that the appellant is not in a position to pay Rs.16,000/- per
month for the maintenance of the minor child. Counsel for the
appellant also submits that the Family Court has failed to take note of
the fact that the respondent/wife is also employed as a Staff Nurse
with G.B. Pant Hospital and earning Rs.58,000/- per month.
8. Counsel for the respondent/wife has opposed this appeal on the same
ground as pleaded before the learned Family Court and submits that
MAT.APP.(F.C.) 26/2017
the appellant/husband is a Medical Officer working at the rank of
Major in the Indian Army and is currently posted at Ahmedabad. His
salary is about Rs. 1,50,000/- per month but despite this, he has not
paid even a single penny for the maintenance of the minor son in
compliance of the impugned order. The counsel further submits that
the appellant/husband is in the arrears of the maintenance and the
execution petition is already pending before the learned Family Court
for the compliance of the said order. In this backdrop, the counsel for
the respondent/wife submits that there is no infirmity in the view taken
by the Family Court and prays for the dismissal of the appeal.
9. We have heard the learned counsels for the parties and carefully
examined the order of the Family Court. The relevant para 10 of the
impugned order dated 14.09.2016 reads as under:
"10. Admittedly, the respondent/applicant is employed as staff
nurse with G.B. Pant Hospital and earning Rs. 58,000/- pm and
therefore, the same is found sufficient for maintaining herself as
per the status of petitioner/non-applicant. However, the
respondent/applicant has responsibility of child master Arshit
who is school going child and the petitioner/non-applicant is
admittedly having higher earnings than the
respondent/applicant and holding a respectable position of
Major in the Indian Army, hence liable to pay maintenance to
the respondent/applicant for the child master Arshit in custody
of respondent. It is worthwhile to note that during the course of
hearing, the respondent/applicant had offered to handover the
custody of the child to petitioner/his father who is SPA holder,
but they declined to take custody of the child master Arshit."
(Emphasis Supplied)
10. It is not disputed before us that both the parties are working. The
respondent/wife is bringing up the minor son and looking after his
MAT.APP.(F.C.) 26/2017
daily needs. We may note that the learned Family Court has taken into
account the income of the appellant/husband as higher to the earnings
of the respondent/wife. The appellant/husband is holding a respectable
position of Major in the Indian Army. The Family Court has also
considered the salary of the respondent/wife which is Rs.58,000/- per
month. The Family Court has fixed maintenance Rs.16,000/- per
month for the minor child. In our view, there is no infirmity in the
order of the Family Court which requires interference.
11. The present appeal is devoid of any merit. Resultantly, the appeal
stands dismissed.
CMs.APPL 6712/2017 & 6714/2017
12. The applications stand dismissed, in view of the judgment passed in
the appeal.
G.S.SISTANI, J.
JYOTI SINGH, J.
FEBRUARY 18, 2019
//pst
MAT.APP.(F.C.) 26/2017
