Delhi High Court
S T vs M K D on 28 March, 2019
$~10
* IN THE HIGH COURT OF DELHI AT NEW DELHI
%
Date of Judgment: 28.03.2019
+ MAT.APP.(F.C.) 55/2017 & CM.APPL 12283/2017
ST ..... Appellant
Through: Mr. Ankul Chandra Pradhan, Senior
Advocate with Mr. Rahul Baid,
Advocate for the appellant along with
appellant
Versus
MKD ..... Respondent
Through: Mr. Praveen Kumar Singh, Advocate
along with respondent
CORAM:
HON'BLE MR. JUSTICE G.S.SISTANI
HON'BLE MS. JUSTICE JYOTI SINGH
G.S. SISTANI, J. (ORAL)
1. Challenge in the present appeal is to the interim order dated
18.11.2016 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 'HMA') whereby maintenance of
Rs.30,000/- per month has been awarded for the school going minor
child alongwith the litigation expenses of Rs. 11,000/- to the
respondent-wife.
2. The brief facts of the case to be noticed for the disposal of the present
appeal are that the marriage between the parties was solemnized on
03.12.2003 at Sambalpur, Odisha as per Hindu rites and ceremonies.
One son was born on 25.05.2006 out of the said wedlock. As per the
appellant-husband, the respondent-wife has deserted him on
23.03.2008. However, the respondent-wife claims that she has been
deserted by the appellant-husband in April, 2008 and thereafter she is
living in a rented accommodation with her minor son. The petition
seeking divorce under Section 13 (1) (ia) & (ib) of HMA was filed by
the respondent-wife on 24.07.2014, which is pending.
3. Mr. Ankul Chandra Pradhan, learned senior counsel appearing on
behalf of the appellant-husband submits that the impugned order
passed by the Family Court is a non-speaking order and there is no
basis on which the Family Court has granted maintenance of Rs.
30,000/- per month to the child without taking into account the
expenses incurred by the appellant-husband for the future exigencies
and welfare of the minor son.
4. Learned counsel has relied upon Section 20 of the Hindu Adoption
and Maintenance Act (hereinafter referred to as 'HAMA') while
contending that it is the duty of both the parents to bear the expenses
of their child. The respondent-wife is currently working as Chief Sub-
editor with DB Corp, Noida and is earning a handsome salary. In this
backdrop, the counsel submits that the respondent-wife is capable
enough to bear the expenses of the minor child and thus prays that the
impugned order be set aside.
5. Mr. Praveen Kumar, learned counsel for the respondent-wife has
opposed this appeal on the ground that there is no illegality or
infirmity in the view taken by the learned Family Court as
maintenance has been awarded only to the minor child on account of
the fact that the child is of growing age and for his normal upbringing,
the Family Court deemed it fit to grant maintenance of Rs. 30,000/-
per month. The counsel further submits that the learned Family Court
has denied maintenance to the respondent-wife by holding that she has
independent source of income which is sufficient to meet her
expenses.
6. Counsel for the respondent-wife further submits that the appellant-
husband is currently working as a Technical Architect in NIIT
Technologies, Greater Noida and as per the current salary slip filed by
the appellant-husband, he is earning Rs. 1,27,068/- per month after
deductions. In this backdrop, the maintenance awarded for the minor
child suffers from no infirmity.
7. We have heard the learned counsels for the parties and carefully
examined the order passed by the Family Court. The operative portion
of the impugned order dated 18.11.2016 reads as under:
"The petitioner in the present case is admittedly employed as
Chief Sub-Editor with DB Corp. at Noida and has, thus,
independent source of income which is sufficient to meet her
expenses. Hence, she is not held entitled to maintenance from
the respondent for herself but for the minor son of the parties
she is entitled to receive maintenance. The monthly salary of the
respondent is more than that of the petitioner but the fact that he
is making payments on regular basis towards various policies,
mutual funds and deposits for the benefit of the minor son and
petitioner cannot be ignored. However, the stand taken by him
that he has responsibilities towards his parents and sister
cannot be considered at this stage since no supporting affidavit
with regard to his parents' financial status has been filed on
record. It is observed that the respondent admits in his financial
affidavit, the ownership of two residential units besides holding
of stocks & shares and also earning additional income. His
liquid assets are almost equal to his borrowings. Considering
the living standard of the petitioner in the context of
contemporary social and economic conditions and the fact that
the respondent is making some payments for the benefit of the
minor child for future exigencies and that the child is of
growing age and presently about 10 years old and school going,
I deem it fit to grant Rs.30,000/- per month as pendent-lite
maintenance to the petitioner for the minor son of the parties
from the date of filing of the application till pendency of the
case alongwith litigation expenses @ Rs.11,000/- to the
petitioner. Non-applicant/respondent is directed to pay the
pendente lite maintenance by the 10th day of each following
English calender month"
(Emphasis Supplied)
8. The issue of interim maintenance has been discussed time and again
by the Hon'ble Supreme Court and this Court in various judgments. In
the case of Chaturbhuj v. Sita Bai reported at (2008) 2 SCC 316, the
Hon'ble Supreme Court discussed the object of the maintenance
proceedings and also duty of a man to maintain his wife, children and
parents when they are unable to maintain themselves. The Apex Court
further interpreted the phrase "unable to maintain herself". The
relevant paras 6 reads as under:
"6. The object of the maintenance proceedings is not to punish a
person for his past neglect, but to prevent vagrancy by
compelling those who can provide support to those who are
unable to support themselves and who have a moral claim to
support. The phrase "unable to maintain herself" in the instant
case would mean that means available to the deserted wife
while she was living with her husband and would not take
within itself the efforts made by the wife after desertion to
survive somehow...."
(Emphasis Supplied)
9. After some hearing in the matter, the counsel for the appellant-
husband submits that the sum of Rs.30,000/- awarded by the Family
Court towards maintenance for minor child is far and excess for the
day to day needs of the child. He submits that while he does not
oppose the quantum which has been fixed, he submits that out of the
sum of Rs.30,000/-, a sum of Rs.20,000/- should be used for the
benefit of the child and Rs.10,000/- per month should be kept in a
Fixed Deposit for the benefit of the child.
10. We find the suggestion of the appellant to be fair and just.
Accordingly, the order dated 18.11.2016 of the Family Court is
modified to the extent that the appellant shall pay a sum of Rs.30,000/-
towards maintenance of the minor child, out of which Rs.10,000/-
shall be kept in a Fixed Deposit and, every three months the proof of
deposit shall be filed in the Family Court.
11. With this modification, the present appeal and all pending applications
are disposed of.
G.S.SISTANI, J.
JYOTI SINGH, J.
MARCH 28, 2019
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