Bhupendra Singh Notey vs Gagandeep Kaur ... Opposite Party
2025 Latest Caselaw 4571 Ori

Orissa High Court

Bhupendra Singh Notey vs Gagandeep Kaur ... Opposite Party on 4 March, 2025

Author: G. Satapathy

Bench: G. Satapathy

     IN THE HIGH COURT OF ORISSA AT CUTTACK
                 W.P.(C) NO.4283 of 2024

   (In the matter of application under Article 227 of the
   Constitution of India).

   Bhupendra Singh Notey                  ...          Petitioner
                               -versus-

   Gagandeep Kaur                         ...      Opposite Party

   For Petitioner                 : Mr. S.Sharma, Advocate

   For Opposite Party             : Mr. A.Routray, Advocate


       CORAM:
                   JUSTICE G. SATAPATHY

                   DATE OF HEARING :30.01.2025
                   DATE OF JUDGMENT:04.03.2025
G. Satapathy, J.

1. This writ petition by the petitioner-husband

is directed against the impugned order dated

20.01.2024 passed by learned Judge, Family Court,

Rourkela in I.A. No.48-A of 2022 arising out of C.P.

No.115 of 2018 directing the petitioner-husband to pay

a sum of Rs.15,000/- per month to the OP-wife and

her daughter as pedentelite maintenance w.e.f.

22.04.2017 and a sum of Rs.10,000/- towards litigation

expenses to them in an application U/S. 24 of the

Hindu Marriage Act (In short "the Act").

2. In the course of hearing, Mr. Subham

Sharma, learned counsel appearing for the petitioner-

husband, however, has empathetically submitted that

the OP-wife is guilty of protracting litigation for ulterior

motive by filing different applications, but fact remains

that the petitioner-husband has in the meanwhile

resigned from his service for the trauma inflicted by the

OP-wife and, thereby, he being income-less is unable to

pay such a high amount of pendentelite maintenance to

the OP-wife. Mr. Sharma has further submitted that

there is no express provision in Section 24 of the Act to

provide maintenance to the children, but the learned

trial Court has taken into consideration the

maintenance of the child and granted such an

exorbitant amount to the OP-wife. It is also submitted

by Mr. Sharma that the OP-wife has given prevaricating

statements with regard to income of the petitioner-

husband in different proceedings under DV Act & Hindu

Marriage Act and, therefore, the claim for pendentelite

maintenance by the OP-wife having been allowed by

the learned trial Court granting exorbitant amount, this

Court in exercise of power under Articles 226 & 227 of

the Constitution of India may kindly reduce the

quantum of pendentelite maintenance to Rs.5,000/- by

taking into consideration the unemployment of the

petitioner-husband & income and qualification of the

OP-wife.

3. On the contrary, Mr. Achyutananda

Routray, learned counsel appearing for the OP-wife by

taking this Court through the relevant portion of the

counter affidavit has submitted that the petitioner-

husband is not only a qualified person, but also an

Electrical Engineer by profession with 32 years of

experience in a reputed organization and he thereby

may be directed to pay the pendentelite maintenance of

Rs.50,000/- per month because the wife and daughter

of the petitioner are also entitled to live commensurate

to the standard of living of the petitioner. Further, Mr.

Routray by referring to the decision in Parvin Kumar

Jain vs. Anju Jain; (2024) SCC Online SC 3678 has

submitted that not only the wife, but also the minor

children are entitled to the pendentelite maintenance

U/S.24 of the Act and even though the children have

not been explicitly referred to therein in Section 24 of

the Act, but the minor children being dependents to

their parents for maintenance and Section 26 of the Act

provides for the maintenance of children, it would not

be advisable to read application U/S. 24 of the Act in

isolation to these factors while granting pendentlite

maintenance to the spouse and children. Mr. Routray

accordingly has prayed to dismiss the writ petition.

4. After having considered the rival

submissions upon going through the materials placed

on record, since the relationship between the parties is

not in dispute and they being in litigating terms, the

application of the wife for pendentelite maintenance

and litigation expenses in a proceeding of this nature

has to be considered in the light of provision of Sec. 24

of the Act which provides for grant of pendentelite

maintenance and litigation expenses to either of the

spouses. It is an admitted fact that more particularly

the minor children of the litigating spouses for grant of

relief under the Act has not been explicitly referred to

in Sec.24 of the Act, but such minor children can be

considered implicitly within the sweep of Sec. 24 of the

Act inasmuch as the litigating spouses claiming for

pendentelite maintenance and litigation expenses being

in-charge of the custody and maintenance of minor

children who depend solely on him/her have not only

the onerous responsibility to bring up such children by

providing proper education, but also have they the duty

to see their children in the main stream of the society.

The objective behind Sec.24 of the Act is intended to

provide support to the spouse having no independent

income sufficient for his/her support and the necessary

expenses of the proceeding, but the support for his/her

requirement also implicitly includes the need of their

children for bringing up and providing proper education

to stand in the society. Further, Sec.26 of the Act also

provides the Court to pass such interim order for

making provision for the maintenance and education of

minor children consistently with their wishes and such

order can also be passed in pending proceeding in

terms of the proviso to Sec.26 of the Act.

5. In view of the aforesaid narration of facts

and provisions of law together with the law laid down

by the Apex Court in Parvin Kumar (supra), this Court

rejects the argument/plea of the petitioner that Sec.24

of the Act does not mean to provide maintenance to the

children while awarding pendentelite maintenance to

the wife. In this case, the wife and husband being in

litigating terms in a matrimonial proceeding and

admittedly the daughter of the party being in custody

of OP-wife, it is now further to be seen whether the

order passed by the learned trial Court granting

pendentelite maintenance and litigation expenses to the

OP-wife is just and proper or liable to be interfered

with.

6. It is undisputed that the present OP is the

wife of the petitioner who has brought a proceeding in

the year 2016 before the learned Family Court at

Jabalpur U/S. 11 read with Section 12 of the Act for a

decree of nullity of marriage and/or dissolution

marriage U/S. 13(1)(i-a) of the Act which was

registered in CS No. 928-A of 2016, but the OP-wife

moved the said Court U/S. 24 of the Act for grant of

pendentelite maintenance and litigation expenses to her

and her son, however, the aforesaid proceeding was

transferred to learned Judge, Family Court, Rourkela

with the intervention of the Apex Court in transfer

petition (Civil) No. 16 of 2018 and the wife in her

disclosure affidavit of assets and liabilities has admitted

to be working as a teacher in a private school and

earning net Rs.23,334/- per month. On the contrary,

the petitioner-husband has taken the plea that right

now he is unemployed and jobless and does not have

any source of income, but in his disclosure affidavit, he

has stated that he is unemployed w.e.f. 01.03.2023

and had taken personal loan of Rs.3 lakhs from brother

and Rs.1 lakh from sister, but at the same time, it is

stated in the disclosure statement that his qualification

is BE Power Electronics and his monthly expenses

Rs.5,000/- per month and his father is a pensioner and

he also pays Rs.26,000/- approximately towards

medical insurance.

7. Be that as it may, it is the experience that

spouses in a matrimonial proceeding does not disclose

the true income and thereby, the Apex Court has to

step in and come with the celebrated judgment in

Rajnesh Vrs. Neha and another; (2021) 2 SCC 324;

wherein comprehensive guidelines have been issued to

file disclosure affidavit, but even thereafter the spouses

are taking one or other plea to avoid to disclose their

real income. Remaining unemployed is one thing and

sitting idle having qualification and prospect to earn is

other thing and if a husband being well qualified

sufficient enough to earn sits idle only to shift the

burden on the wife and expects „dole‟ by remaining

entangled in litigation should not only be deprecated,

but also be discouraged inasmuch as law never helps

indolent, so also idles and does not intend to create an

army of self made lazy idles. A person who is well

qualified and was also in job earlier, but remains idle by

quitting the job without any logic only to shift or

avoiding the responsibility of maintenance of the wife

cannot be appreciated in a civilized society. Law will

definitely come to the rescue of such person who after

making sincere efforts has failed in their pursuit to earn

to maintain himself or herself together with his/her

family members. Many a time, the attitude of the

spouses is most important and when such instinct of

such spouse is only to fight and frustrate the efforts of

others is quite deplorable. In other words, spouses

having high qualification, but desirous to remain idle

and not making any efforts for the purpose of finding

out the source of livelihood should be discouraged. True

it is that even if the husband claims to have no source

of income, but his ability to earn given his education

and qualification is to be taken into account as held in

paragraph-26 of the judgment of the Apex Court in

Kiran Jyot Maini vrs. Anish Pramod Patel; (2024)

SCC Online SC 1724; wherein the Apex Court has held

as under:-.

"26. Furthermore, the financial capacity of the husband is a critical factor in determining permanent alimony. The Court shall examine the husband's actual income, reasonable expenses for his own maintenance, and any dependents he is legally obligated to support. His liabilities and financial commitments are also to be considered to ensure a balanced and fair maintenance award. The court must consider the husband's standard of living and the impact of inflation and high living costs. Even if the husband claims to have no source of income, his ability to earn, given his education and qualifications, is to be taken into account. The courts shall ensure that the relief granted is fair, reasonable, and consistent with the standard of living to which the aggrieved party was accustomed. The court's approach should be to balance all relevant factors to avoid maintenance amounts that are either excessively high or unduly low, ensuring that the dependent spouse can live with reasonable comfort post-separation."

8. In order to have an equitable

determination of financial support required to the wife

and dependent child, it can be said that maintenance

should be determined after considering the status and

life style of the parties, and their reasonable needs,

educational qualification of the wife, so also her earning

capacity as well as the financial standing and obligation

of the husband shall be taken into consideration to

address the rising cost of living and inflation to ensure

a standard living that is proportionate to the husband‟s

financial capacity and commensurate to the standard of

his living and the standard of living of the wife and

children were accustomed to prior to separation.

However, there cannot be any straight jacket formula

for fixing the amount, but the quantum of maintenance

must be subjective to each case and his dependent on

various circumstance and factors and such factors may

be the income of both the parties; their conduct during

subsistence of the marriage; their individual social and

financial status; their personal expense; their individual

capacities and duties to maintain their dependents; the

quality of life enjoyed by the wife during the

subsistence of marriage and such other similar factors.

At the same time, it is not only equitable, but also

obligatory for a father to provide for his children,

especially when he has means and capacity to earn, the

quality of life in the standard of his own social standing.

It is also useful to refer to the principle as culled out by

Apex Court in Rajnesh (supra), wherein the Apex

Court at paragraphs 91 & 92 has held as under:-

"91. The living expenses of the child would include expenses for food, clothing, residence, medical expenses, education of children. Extra coaching classes or any other vocational training courses to complement the basic education must be factored in, while awarding child support. Albeit, it should be a reasonable amount to be awarded for extracurricular/ coaching classes, and not an overly extravagant amount which may be claimed.

92. Education expenses of the children must be normally borne by the father. If the wife is working and earning sufficiently, the expenses may be shared proportionately between the parties."

9. On a consideration of the principles settled

by the Apex Court and applying the factors of the

present case pragmatically to the provision of Sec. 24

of the Act, it appears that the proceeding between the

parties is pending since 2016, but although the

husband claims to be unemployed and not having

independent income, but has filed application seeking

custody of the child by showing him to have served at

renowned organization at senior post and sufficient

means. The husband, however, has not disputed his

qualification, but has taken a plea of "joblessness". At

the cost of repetition, this Court with annoyance needs

it to emphasize that spouses having high qualification

taking plea of unemployment with no income without

any sincere efforts needs to be condemned. In the

backdrop of standard of living and the social standing of

the husband together with his qualification and past

employment in reputed organization and balancing the

same with his own requirement vis-à-vis the

requirement of OP-wife and the daughter of the party

on the admitted income of the OP-wife, this Court

considers that the learned trial Court has not

committed any illegality in awarding Rs.15,000/- per

month to be paid by the petitioner-husband to OP-wife

for the maintenance of OP-wife and the daughter which

by any standard cannot be considered to be

unreasonable. Further, the grant of Rs.10,000/- as

litigation expenses to the OP-wife cannot be termed as

arbitrary or excessive. In view of the aforesaid

discussions and conspectus of facts, this Court

considers that the writ petition by the petitioner-

husband merits no consideration.

10. In the result, the writ petition stands

dismissed on contest, but in the circumstance, there is

no order as to cost.

(G. Satapathy) Judge

Signature NotOrissa Verified High Court, Cuttack, Digitally Signed the 4th day of March, 2025/Kishore Dated SAHOO Signed by: KISHORE KUMAR Reason: Authentication Location: High Court of Orissa Date: 05-Mar-2025 13:26:31