Gauhati High Court
Mat.App./15/2022 on 14 November, 2022
Page No.# 1/20
GAHC010239802019
Judgment delivered on 14/11/2022
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
MAT APPEAL NO.15 OF 2022
SRI MANASH SARMA,
(Aged about 50 years),
Son of Late Mukunda Sarma,
Resident of Flat No. 102, Block No. A1,
Santigram Housing Complex, Jayanagar,
Beltola, Guwahati-781022, Post Office-
Khanapara, Police Station-Basistha, District-
Kamrup (Metro), Assam.
At present residing at:
Nong Malki Road, Shilling-793001, P.O &
P.S.-Shilling, East Khasi Hills District.,
Meghalaya.
........Appellant
-Versus-
1. SMT. MAITREYEE SABHAPANDIT,
Aged about-43 years
Wife of Sri Manash Sarma
Daughter of Sri Haren Sharma
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Resident of- Flat No. 102, Block No. A1,
Santigram Housing Complex, Jayanagar,
Beltola, Guwahati-781022, Post Office-
Khanapara, Police Station-Basistha,
District-Kamrup (Metro), Assam.
........Respondent
-B E F O R E -
HON'BLE THE CHIEF JUSTICE MR. R.M. CHHAYA
HON'BLE MR. JUSTICE SOUMITRA SAIKIA
Advocate for the appellant : Mr. A. Das, Advocate.
Advocate for the respondent : Mr. S. R. Gogoi, Advocate
JUDGMENT & ORDER
(Soumitra Saikia, J)
This appeal is directed against the Order dated
22.02.2019 passed by Principal Judge, Family Court No.1,
Kamrup, Guwahati, Assam in Misc (J) Case No. 157/2018.
2. The respondent in this Matrimonial Appeal, as an
applicant filed Misc (J) Case No. 157/2018 before the
Principal Judge, Family Court No.1, Kamrup, Guwahati,
which is an application under Section 24 of the Hindu
Marriage Act, 1955, praying for maintenance pendente-lite
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and the cost of proceedings.
3. The case projected by the respondent as an applicant
before the Family Court No.1, Kamrup, Guwahati was that
the applicant and her husband (the appellant herein) got
married on 12.06.2015 according to Hindu rites and
customs at Kamakhya Temple, Guwahati. The ancestral
house of the husband is in Shillong in the State of
Meghalaya. Till about August, 2015 both the husband and
wife lived together in Shantigram Housing Complex, Beltola.
Because of his work, which requires him to travel to Lower
Assam regions, like Barpeta, Dhubri, Nagerbera etc, the
appellant husband usually stayed outside his home and
used to come back for only about 7 (seven) days in a
month. The father of the appellant suffered from illness and
expired shortly thereafter. When the respondent wife went
to Shillong to attend the srahdha ceremony of her father-in-
law, she was not allowed to stay in the ancestral house by
the husband on one pretext or the other.
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4. The wife stated that she used to stay alone in the flat
in Beltola, Guwahati and meet all the expenses like,
electricity bills, society dues, paper bills, gas cylinder dues
etc. from the financial assistances offered by her father. The
husband did not take care of such expenditure and did not
even attempt to her when she was suffering from some
illness. The respondent wife contended before the Family
Court No.1, Kamrup, Guwahati that she was an unemployed
lady and has no independent sources of income sufficient
for her maintenance and that the husband was a habitual
drinker. He used to come home very late at night, at about
11.00 p.m. and refused to co-habit with the respondent
wife. It is the case of the respondent wife that the husband
went to Shillong with his mother on 13.03.2016 and
thereafter did not come to his Guwahati residence for about
1 (one) year 8 (eight) months. When the wife went to visit
the husband in Shillong in November, 2016, she was
misbehaved with and even physically assaulted by her
mother-in-law with the help of her maid servants.
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Consequently, an FIR was lodged by the wife in Shillong.
Thereafter, the husband along with his mother came to the
residence of the wife in Beltola, Guwahati on 18.11.2017.
The mother-in-law was pressurizing her son namely, the
husband to get separated from the respondent wife. In this
connection an FIR was lodged by the respondent wife
before the Basistha Police Station, which was registered as
Case No. 1098/2017 under Section 498 (A) of IPC. The FIR
was lodged on 30.11.2017. Because of physical and mental
torture by the husband and his mother, the respondent wife
also filed a Domestic Violence case before the Chief Judicial
Magistrate, Kamrup (M), Guwahati, which was registered as
Misc (DV) Case No.15m/2018 under Section 12 of the
Protection of Women from Domestic Violence Act, 2005,
which is pending before the Judicial Magistrate First Class,
Kamrup (M) at Guwahati. In the said case, the Court had
also granted an amount of Rs.4000/- (Rupees four
thousand) only as ad-interim maintenance to the petitioner.
She had also filed another case before the Family Court
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seeking Restitution of Conjugal Rights, which is presently
pending before the Family Court No.1., Kamrup (M),
Guwahati. The respondent wife contended that after filing
of the Domestic Violence case and the case for Restitution
of Conjugal Rights, the appellant husband filed a Divorce
case before the Family Court No.1, Kamrup (M), Guwahati,
which is numbered as F.C. (Civil) Case No. 717/2018 and
which is pending disposal. The respondent wife contended
that the husband is a Mechanical Engineer by profession
and is undertaking contractual works in various Government
departments and he is associated with some big projects.
Besides these, the husband and his mother have big house
and also 7 (seven) houses, which they rent out to tenants in
Shillong. Accordingly, the respondent wife in the application
filed under Section 24 of Hindu Marriage Act, 1955 prayed
for a direction to the husband to pay maintenance pendent-
lite @ Rs.30,000/- (Rupees thirty thousand) only per month
for herself.
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5. The appellant husband as the Opposite Party before
the Family Court No.1, Kamrup, Guwahati, raised objections
on the prayer of the petitioner. It was contended that the
respondent wife was highly educated person with M. Sc (IT)
degree and B.Ed and she was working as a teacher. On the
contrary, the husband contended that he used to work for
different organizations outside Assam but had to return to
Assam about 25 years back due to the ill health of his
father. However, inspite of his attempts to do some
business after his return to Assam, he had failed because of
the Assam movement. He, therefore, started earning his
livelihood as a Free Lance Consultant and is associated with
certain State Government Contractors. However all the
projects have been shut down for the past couple of years
because of non-payment of bills by the State Government.
Further it was contended that the properties in Shillong and
Guwahati do not belong to him. He contended that the
respondent wife was a quarrelsome person and unruly by
nature and never paid heed to any kind of suggestion, and
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used to issue threats to him and his parents to behave as
per her whims and demands, failing which she will go to the
Police, Commissions etc. It was contended that she used to
abuse and threaten the husband and his parents and out of
shock and agony, the husband's father expired on
01.08.2015. The husband himself met with an accident and
because of injury sustained was bed ridden for more than
22 days. It was contended that the husband used to pay
Rs.8,000/- (Rupees eight thousand) only to Rs.10,000/-
(Rupees ten thousand) only since marriage although she
was employed as a Teacher in School until the month of
October, 2016. It was contended that he thereafter paid
Rs.70,000/- (Rupees seventy thousand) only to help her to
get a job at a fixed salary of Rs.22,000/- (Rupees twenty
two thousand) only as a teacher in an NGO, Nalbari Zila
Samaj Sewa Sangha, which is funded by the Ministry of
Social Welfare, Government of India. He denied the
contentions of the respondent wife that she is an
unemployed person. He also denied the contentions of the
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respondent wife regarding the payment of expenditure
incurred in respect of the flat in which the respondent wife
had been residing since her marriage with the husband. It
was contended that all expenses incurred in respect of the
said flat were paid by the husband.
6. The Family Court No.1, Kamrup, Guwahati upon
hearing the parties allowed the application and directed the
appellant husband to pay an amount of Rs.8000/- (Rupees
eight thousand) only as maintenance pendent-lite to the
applicant wife with effect from the date of the order. The
Family Court No.1, Kamrup, Guwahati also directed the
husband to pay an amount of Rs.10,000/- (Rupees ten
thousand) only as the cost of proceedings within a period of
2 (two) months from the date of the Order.
7. Being aggrieved, the present appeal has been preferred
before this Court by the appellant-husband. This appeal
has been preferred on the following grounds:-
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"GROUNDS
(A). For that the Learned Principal Judge, Family Court No.1,
Kamrup (Metro),Guwahati has failed to appreciate the
pleadings of the Appellant as well as the submission made by
him in course of hearing, in it's proper prospective and
committed grave injustice to the Appellant while passing the
impugned order.
(B). For that the Learned Trial Court although mentioned, in
detail, in it's impugned order dated 22.02.2019 the
submission of the Appellant as regards the capacity of the
Appellant, has not applied her mind and passed the impugned
order mechanically as well arbitrarily ignoring the contentions
of the Appellant.
(C). For that the Learned Trial Court while granting the
maintenance pendentilite under section 24 of the Hindu
Marriage Act, 1955 ought to have decided taking into
consideration the order dated 04.07.2018 passed by Learned
JMFC Smti. M. Devi, Kamrup (Metro), Guwahati in Misc. (DV)
Case No. 15M/2018 for allowing interim order of maintenance
pendent-lite of Rs. 4000/- (Rupees Four Thousand) only per
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month, which the Appellant has been paying regularly.
(D). For that the impugned order dated 22.02.2019 in Case
No. Misc (J) 157/2018 granting cost of litigation amounting to
Rs. 10000/(Rupees Ten Thousand) only and maintenance
pendente-lite @ Rs. Rs. 8000/(Rupees eight Thousand) only
per month ignoring the capacity of the Appellant who is
pulling on somehow by earning Rs. 10000/(Rupees Ten
Thousand) to Rs. 15000/(Rupees Fifteen Thousand) only per
month as free lance consultant.
(E). For that the impugned judgement and order dated
22.02.2019 as aforesaid is not legal, correct and proper and
the Learned Trial Court while granting the maintenance
pendente-lite ignoring the fact that the Respondent is highly
qualified and had been working as Head Mistress in a school
in Nalbari under an N.G.O drawing a salary of Rs. 22,000/-
(Rupees Twenty Two Thousand) only per month, and
intentionally left the job after working there for a period of 8
months.
(F). For that the impugned order dated 22.02.2019 was
passed by the Learned Court below ignoring that the
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Respondent has been residing in the house (Flat) in the name
of the mother of the Appellant compelling the Appellant and
his mother to leave the said flat due to her regular quarrel,
misbehavior, torture and also threatening the Appellant and
his mother for transferring the said Flat in her name.
(G). For that the Appellant has been making regular payment
in connection with the electricity bill, society maintenance
charge, municipal tax and other allied expenditures in
connection with the Flat in which the Respondent has been
residing and as such ignoring the above circumstances the
impugned order passed by the Learned Trial Court
overlooking the object and the ingredients of section 24 of
the Hindu Marriage Act, 1955 which is not legal, correct and
justified, in as much as in the instant case the Respondent is
capable of maintaining herself and that she has been living
separately at her own will deserting the Appellant and his
mother who is the actual owner of the said Flat and as such
the impugned order is liable to be set aside.
(H). For that the Learned Trial Court has failed to appreciate
the pleadings as well as the oral submission of the Appellant
in Misc (J) Case No. 157/2018 and has committed grave
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irregularity and illegality in passing the impugned order
without considering the factum of the capacity of both the
parties which is the prime consideration in granting
maintenance pendente-lite and as such the impugned order is
liable to be set aside.
(I). For that this petition is filed bonafide and in the interest
of justice and the Appellant craves leave of the Hon'ble Court
to advance further grounds and place relevant rulings of the
Hon'ble Court at the time of final hearing of the instant
Matrimonial Appeal, if required".
On the grounds urged as above, the appellant husband
has prayed for setting aside of the Order dated 22.02.2019
passed by Principal Judge, Family Court No.1, Kamrup (M)
in Misc (J) Case No. 157/2018.
8. The learned counsels for the parties have been heard.
Pleadings on record have been perused. The Lower Case
Records called for from the Family Court has also been
carefully perused. It is seen that the Family Court had
arrived at a finding that the wife had no independent
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income or means to support her. The family Court on the
facts narrated before the Court came to a finding that the
burden of prove that the respondent wife had independent
income, was on the husband as he had contested the claim
of the wife that she had no independent income. Although,
the husband contended that the wife was gainfully
employed earning about Rs.22,000/- (Rupees twenty two
thousand) only per month, no evidence to that effect were
brought before the Family Court. Consequently, there were
no materials placed before the Family Court to arrive at a
finding that the contentions made by the wife that she had
no independent income, to be incorrect. That apart the
Family Court has also coming to a finding that the husband
did not adduce any evidence showing his income to support
his contention that he will not be in a position to maintain
the respondent wife.
9. Before this Court, the appellant husband enclosed
certain vouchers and receipts showing payment of electricity
dues and housing society dues and some medical bills. This
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Court by an Order dated 05.08.2022 while referring the
parties to Gauhati High Court Mediation Centre for exploring
the possibility of resolving the dispute amicably, directed the
appellant to produce his source of income and copies of last
two years' income tax return along with the details of his
service and/or profession. The appellant was further
directed to deposit an amount of Rs.10,000/- (Rupees ten
thousand) only before the Registry of the Gauhati High
Court. In response to the said directions given by this Court,
the appellant filed an additional affidavit wherein it is
averred that an amount of Rs.10,000/- (Rupees ten
thousand) only as directed was deposited before the
Registrar General, Gauhati High Court. However, in response
to the direction to file the copies of his income tax returns,
the appellant contended that he earns only about a sum of
Rs. 10,000/- to Rs.15,000/- approximately per month and in
view of his meagre income he is not required to file in his
income tax return. It was further contended that owing to
Covid-19 pandemic the field supervision and survey works
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that he used to get from some Engineers also got
minimized. The residential flat in which the respondent is
residing at present belonged to his deceased mother and
who had in turn bequeathed the said property to the
younger brother of the appellant. Accordingly, having no
alternative, the appellant is residing in a one room
accommodation of his friend at Shillong It was further
contended that in terms of the directions by this Court the
appellant had appeared before the Mediation Centre, but
the respondent did not appear before the mediator and
consequently the matter could not be resolved through
mediation.
10. We have given our anxious consideration to the
contentions made by the learned counsels for the parties. In
Manish Jain Vs Akanksha Jain reported in (2017) 15 SCC
801, the Apex Court was examining Section 24 of the Hindu
Marriage Act, 1955. The Apex Court held that if it appears
to the Court that there is no independent income or any
independent income sufficient to support the husband or
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the wife as the case may be, then upon an application by
either of the parties, the Court in its discretion can order for
maintenance pendente lite or for the cost of proceedings.
The Apex Court held that :
"12. The Court exercises a wide discretion in the
matter of granting alimony pendent lite but the
discretion is judicial and neither arbitrary nor
capricious. It is to be guided on sound principles of
matrimonial law and to be exercised within the
ambit of the provisions of the Act and having regard
to the object of the Act. The Court would not be in
a position to judge the merits of the rival
contentions of the parties when deciding an
application for interim alimony and would not allow
its discretion to be fettered by the nature of the
allegations made by them and would not examine
the merits of the case. Section 24 of the HM Act
lays down that in arriving at the quantum of interim
maintenance to be paid by one spouse to another,
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the Court must have regard to the appellant's own
income and the income of the respondent."
11. In the facts of present case, it is seen that the
appellant husband although contested the claims made by
the respondent wife, did not adduce any evidence before
the Family Court to counter the claims the respondent wife
that she does not have any independent income to support
herself. The Family Court had also held that the husband did
not bring on record any evidence to show his income. Even
before this Court, although a direction was issued vide
Order dated 05.08.2022 directing the appellant to file his
return of income for the past 2 (two) years, the husband
failed to do so on the ground that his monthly income is
Rs.10,000/- (Rupees ten thousand) only to Rs. 15,000/-
(Rupees fifteen thousand) only and therefore, he is not
required to file his return of income. It is also seen that
under Section 24 of the Hindu marriage Act, 1955, a Court
has discretion to award maintenance and/or cost of
proceeding pendente-lite, it is not disputed that divorce
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petition is presently pending before the Family Court. It is
also not disputed that the prayers made by the respondent
wife were not countered by any evidence to the contrary
brought by the husband.
12. Under the circumstances, the impugned order dated
22.02.2019 passed by the Family Court No.1., Kamrup (M),
Guwahati cannot be faulted with. On the facts of the case,
the Family Court correctly exercised its jurisdiction of
awarding maintenance pendente-lite on the prayers made
by the respondent wife.
13. As discussed above, the prayers were made for grant
of Rs.30,000/- (Rupees thirty thousand) only as
maintenance pendente-lite and the Family Court has
granted Rs.8,000/- (Rupees eight thousand) only in terms
of the prayers made. Consequently, there is no merit in this
appeal and the appeal is accordingly dismissed.
14. No order as to cost.
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15. LCR returned forthwith. The Family Court No.1,
Kamrup is requested to expeditiously dispose of the
matrimonial appeal.
JUDGE CHIEF JUSTICE
Comparing Assistant
