Gujarat High Court

Hiteshbhai Chandrakantbhai Jariwala vs Hemaxiben Hiteshbhai Jariwala D/O ... on 8 September, 2025

Author: A.Y. Kogje

Bench: A.Y. Kogje

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                                C/FA/12/2025                                    ORDER DATED: 08/09/2025

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                                     IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                                               R/FIRST APPEAL NO. 12 of 2025
                                                           With
                                        CIVIL APPLICATION (FOR STAY) NO. 1 of 2024
                                                            In
                                               R/FIRST APPEAL NO. 12 of 2025

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                                     HITESHBHAI CHANDRAKANTBHAI JARIWALA
                                                     Versus
                                HEMAXIBEN HITESHBHAI JARIWALA D/O CHANDRAVADAN
                                                  NEMLAWALA
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                       Appearance:
                       MR RAXIT J DHOLAKIA(3709) for the Appellant(s) No. 1
                       KAASH K THAKKAR(7332) for the Defendant(s) No. 1
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                         CORAM:HONOURABLE MR. JUSTICE A.Y. KOGJE
                               and
                               HONOURABLE MR.JUSTICE N.S.SANJAY GOWDA

                                                            Date : 08/09/2025

                                               ORAL ORDER

(PER : HONOURABLE MR. JUSTICE A.Y. KOGJE)

1. The present appeal is filed under Section 19 of the

Family Courts Act, 1984, against the order dated 12.11.2024

passed by the Family Court No.2, Surat in Family Suit No.678 of

2023, on an application at Exh.11 filed by the present respondent-

wife under Section 24 of the Hindu Marriage Act, 1955 praying for

interim maintenance for herself and the minor son and for

expenses of proceedings.

2. The matter is at admission stage. However, the issue

involved in the matter appears short and therefore, with consent of

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learned Advocates for the parties, the matter is taken up for

hearing and final disposal. Paper-book is made available for

perusal of the Court.

3. The brief facts of the case are that the marriage

between the appellant-husband and respondent-wife was

solemnized on 01.06.1998 at Surat, out of which the parties were

blessed with a daughter. The appellant-husband thereafter got a

job opportunity at Dubai and subsequently the respondent-wife and

daughter joined him. At Dubai, the parties were blessed with a son

and the family resided together till March 2018 and thereafter as

the daughter wanted to study in India, the respondent-wife along

with the children returned to Surat. Until that time, the

relationship was cordial. However, thereafter the disputes arose

on account of the changed behavior of the respondent-wife, more

particularly due to her excessive engagement on social media and

certain photographs discovered by the appellant-husband.

3.1 In view of the disputes arising between the husband

and the wife, the appellant-husband served her with legal notice to

join the appellant-husband with children at Dubai, which was not

replied to by the respondent-wife. Thereafter, the appellant-

husband filed HMP No.678 of 2023 under section 13 (1) (i-a), (i-b)

of Hindu Marriage Act before the Family Court, Surat wherein the

respondent-wife entered appearance and filed the written

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statement.

3.2 Further, in the proceedings, the respondent-wife filed

an application at Exh.11 under Section 24 of the Act praying for

interim maintenance for herself and the minor son and for litigation

expenses and the Family Court, after hearing both parties, by order

dated 12.11.2024 directed the appellant to pay interim

maintenance of Rs.40,000/- to the respondent-wife and Rs.25,000/-

to the minor son from the date of the application till final disposal

of the divorce petition, and Rs.20,000/- towards litigation expenses.

Hence, the present appeal.

4. Learned Advocate for the appellant-husband submitted

that though the appellant is employed at Dubai and earns

Rs.7,50,000/- per month, he also incurs monthly household and

other expenses to the tune of Rs.5,50,000/- which has been duly

substantiated by salary slips and affidavit filed on record.

4.1 Learned Advocate for the appellant has further

submitted that the Family Court has not considered the fact that

the appellant has provided for the residence and expenses for the

wife and children. Further, the independent income of the

respondent-wife, who is engaged as a yoga trainer, has not been

considered and such a fact has been deliberately suppressed by not

filing her Income Tax Returns despite stating in her affidavit that

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she would do so.

4.2 Learned Advocate for the appellant has further

submitted that the respondent-wife had already filed an application

under Section 125 of Cr.P.C. being Cr.M.A. No.1366 of 2023 prior

to filing Exh.11 under Section 24 of the Hindu Marriage Act, which

was not disclosed and therefore, the Family Court has erred in

awarding maintenance.

4.3 Learned Advocate for the appellant has further

submitted that the Family Court has not recorded adequate reasons

as to how the figure of Rs.65,000/- per month was arrived at.

5. Learned Advocate for the respondent-wife supported

the impugned order and submitted that the appellant has failed to

maintain the respondent and their minor son and failed to provide

for the food, educational, clothing or medical expenses inspite of

being legally bound to provide for them. Moreover, the respondent

has no independent source of stable income and is required to

maintain herself as well as the minor son and the appellant has

substantial income from his employment in Dubai.

6. Having heard the rival submissions of the parties and

the materials on record including the affidavit of income and assets

filed by the respondent-wife, it appears that the Family Court has

duly weighed the admitted income of the appellant-husband being

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Rs.7,50,000/- as against that of the respondent-wife who is working

as a yoga trainer and earning Rs.35,000/- per month. Insofar as the

rival contention of the appellant-husband is concerned with respect

to the wife earning a sum of Rs.1,00,000/- per month, nothing has

been placed on record in order to substantiate such a claim.

7. Although the respondent-wife has prayed for a sum of

Rs.1,70,000/- for maintenance of the respondent and the minor-son,

the Family Court has carefully balanced the interests of both the

sides, i.e. the higher earning capacity of the appellant-husband

along with the reasonable needs of the respondent-wife and their

minor son and has awarded a reduced sum of Rs. 65,000/- per

month along with Rs.20,000/- towards litigation costs.

8. Further, insofar as the submission of the appellant-

husband with respect to expenses amounting to a sum of

Rs.5,50,000/- is concerned, as against the admitted monthly salary

of Rs.7,50,000/-, a sum of Rs.2,00,000/- still remains which is

sufficient in order to meet the award of interim maintenance

amounting to Rs.65,000/- per month and Rs.20,000/- towards

expenses of litigation and cannot be termed as excessive. Also, any

such personal liabilities cannot override the paramount statutory

obligations of the husband towards his wife and minor son which is

provided for by law in order to place her at an equal financial

footing so as to enable her to defend the divorce petition.






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9. The contention of the appellant-husband that the

respondent-wife is a yoga trainer having independent income is not

a sufficient reason in itself so as to disentitle the respondent-wife

from claiming interim maintenance especially when her means are

not sufficient as to maintain herself as well as to bear the expenses

of the minor child. Further, such a income, if at all earned by the

respondent-wife, cannot be considered to be stable source of

income. In this regard, reference maybe made to the judgment of

the Apex Court in the case of Manish Jain v/s Akansha Jain

reported in 2017 (0) AIR (SC) 1640 wherein it was observed as

under:-

"14. Section 24 of the HM Act empowers the Court in any proceeding under the Act, if it appears to the Court that either the wife or the husband, as the case may be, has no independent income sufficient for her or his support and the necessary expenses of the proceeding, it may, on the application of any one of them order the other party to pay to the petitioner the expenses of the proceeding and monthly maintenance as may seem to be reasonable during the proceeding, having regard to also the income of both the applicant and the respondent. Heading of Section 24 of the Act is "Maintenance pendente lite and expenses of proceedings". The Section, however, does not use the word "maintenance"; but the word "support" can be interpreted to mean as Section 24 is intended to

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provide for maintenance pendente lite.

15. An order for maintenance pendente lite or for costs of the proceedings is conditional on the circumstance that the wife or husband who makes a claim for the same has no independent income sufficient for her or his support or to meet the necessary expenses of the proceeding. It is no answer to a claim of maintenance that the wife is educated and could support herself. Likewise, the financial position of the wife's parents is also immaterial. The Court must take into consideration the status of the parties and the capacity of the spouse to pay maintenance and whether the applicant has any independent income sufficient for her or his support. Maintenance is always dependent upon factual situation; the Court should, therefore, would the claim for maintenance determining the quantum based on various factors brought before the Court."

10. The contention of the Husband that the respondent-wife

had already filed an application under Section 125 of Cr.P.C. being

Cr.M.A. No.1366 of 2023 prior to filing Exh.11 under Section 24 of

the Hindu Marriage Act, was not disclosed need not be considered

against the wife , as from the records of the case, it appears that

both the proceedings were pending before the same Family Court

and that similar orders were passed in both the matters on

12.11.2024. Therefore, there does not appear to be any element of

suppression as the Court was seized of both the matters and has

accordingly granted a relief while incorporating a safeguard in the

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