Aswani Kumar vs Shalu Sharma
2021 Latest Caselaw 2707 HP

        IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA.




                                                                 .
                                  CMPMO No. 192 of 2016





                                  Decided on: 23.4.2021





    Aswani Kumar                               .......Petitioner.
                             Versus
    Shalu Sharma                               .....Respondent.





    Coram
    Ms. Justice Jyotsna Rewal Dua, Judge.
    Whether approved for reporting?1


    For the petitioner       :    Mr. Rajesh Verma, Advocate.

    For the respondent       :    Mr. Tarun K. Sharma, Advocate.



                         THROUGH VIDEO CONFERENCE




    Jyotsna Rewal Dua, Judge (Oral)

In an application filed by the respondent-wife under

Section 24 of the Hindu Marriage Act, the learned Additional

District Judge (II), Kangra at Dharamshala vide order dated

8.1.2016 has allowed her maintenance pendente lite of `2000/-

per month from the date of filing of the application (9.10.2015)

till the disposal of the main petition alongwith litigation expenses

of `10,000/-. The husband has challenged this order in respect of

the grant of `2000/- as maintenance pendente lite.

Whether the reporters of the local papers may be allowed to see the Judgment?

2. Divorce proceedings were initiated by the petitioner-

husband against the respondent-wife under Section 13 of Hindu

.

Marriage Act. The respondent filed an application under Section

24 of the Hindu Marriage Act seeking maintenance on the ground

that she has no source of income to maintain herself and to bear

the litigation expenses. It was also submitted that she alongwith

couple's child were residing in the house of her parents and were

petitioner

dependent upon them for sustenance

denied his whereas petitioner was

working in a Company and earning `20,000/- per month.

                The

                                                    liability     to   pay      any

maintenance amount to the respondent on the count that she

was a post graduate lady, capable of maintaining herself. It was

also submitted that a maintenance amount of `2500/- had

already been awarded in her favour by the learned Additional

Chief Judicial Magistrate, Dehra vide order dated 21.2.2015 in a

petition under Section 12 of Protection of Women from Domestic

Violence Act. It was thus pleaded that the respondent-wife can

easily maintain herself and was not entitled for maintenance

pendente lite.

3. After considering the respective contentions of the

parties, learned Court below awarded `2000/- per month as

maintenance pendente lite to the respondent-wife from the date

of filing of the petition. Aggrieved, the husband has filed the

instant petition under Article 227 of the Constitution of India.

4. Learned counsel for the petitioner contended that the

respondent had already been awarded `2500/- per month as

.

maintenance under the provisions of Domestic Violence Act on

21.2.2015. Therefore, there was no occasion for the learned

court below to award a further amount of `2000/- as

maintenance pendente lite under Section 24 of the Hindu

Marriage Act. Learned counsel further submitted that the

r to petitioner was not having any income at all, therefore, he was

not liable to pay any maintenance amount towards his

wife/respondent. Whereas, learned counsel for the respondent-

wife has supported the impugned order.

5. In my considered opinion, the impugned order does

not suffer from any infirmity for the following reasons:

5(i) Admittedly, the respondent is the legally wedded wife

of the petitioner. The couple is blessed with a child. On account

of marital discord, the wife alongwith the child is residing with

her parents.

5(ii) No evidence has been produced by the husband in

respect of income of respondent. Regarding respondent's

capability to earn, it will be appropriate to refer to (2014) 16

SCC 715, titled Sunita Kachwaha and others Vs. Anil

Kachwaha, wherein it was observed that merely because wife is

a qualified post graduate, it would not be sufficient to hold that

she is in a position to maintain herself. Relevant para is extracted

hereinafter :-

"8 The learned counsel for the respondent submitted that the appellant-wife is well qualified, having post graduate degree in Geography and working as a teacher in Jabalpur and also working in

.

Health Department. Therefore, she has income of her own and

needs no financial support from respondent. In our considered view, merely because the appellant-wife is a qualified post graduate, it would not be sufficient to hold that she is in a position to maintain

herself. Insofar as her employment as a teacher in Jabalpur, nothing was placed on record before the Family Court or in the High Court to prove her employment and her earnings. In any event, merely because the wife was earning something, it would not be a ground

to reject her claim for maintenance."

5(iii) Contention of learned counsel that respondent

having been awarded maintenance amount of Rs. 2500/- under

Domestic Violence Act, cannot be awarded maintenance

pendente lite, is also misplaced. It is well settled that while

deciding quantum of maintenance in a subsequent proceedings,

the civil Court/family Court has to take into consideration the

maintenance awarded in a previously instituted petition. Award

of maintenance in a previous petition is no bar to award

maintenance in subsequent proceedings permissible under

different enactments. Relevant para in this regard from the

judgment reported in 2021 (2) SCC 324 titled Rajnesh Vs. Neha

is as under :-

"60. It is well settled that a wife can make a claim for maintenance

under different statutes. For instance, there is no bar to seek

maintenance both under the D.V. Act and Section 125 of the Cr.P.C., or

under H.M.A. It would, however, be inequitable to direct the husband

to pay maintenance under each of the proceedings, independent of

the relief granted in a previous proceeding. If maintenance is awarded

to the wife in a previously instituted proceeding, she is under a legal

obligation to disclose the same in a subsequent proceeding for

maintenance, which may be filed under another enactment. While

deciding the quantum of maintenance in the subsequent proceeding,

.

the civil court/family court shall take into account the maintenance

awarded in any previously instituted proceeding, and determine the

maintenance payable to the claimant."

5(iv) Also the fact cannot be lost sight of that the

petitioner is also father of a child who is residing with the

respondent. The petitioner cannot escape his liability and

responsibility to look after the well-being of his wife and child,

who at present are residing with respondent's father. The

petitioner has the legal, moral responsibilities to look after them.

The maintenance amount of `2500/- awarded in favour of

respondent under the provisions of domestic violence Act has

been taken into consideration by the learned court below in

determining `2000/- as the maintenance pendente lite. By any

stretch of imagination, the amount of `4500/- in all (`2500/-

under the Domestic Violence Act + `2000/- under Section 24 of

the Hindu Marriage Act) cannot be said to be excessive.

For the foregoing reasons, I find no merit in the

petition and the same is accordingly dismissed.

Jyotsna Rewal Dua Judge 23 rd April, 2021, (vs)