Orissa High Court

Manjusha Singhania @ vs Nimish Singhania ... Opposite Party on 15 May, 2025

Author: G. Satapathy

Bench: G. Satapathy

      IN THE HIGH COURT OF ORISSA AT CUTTACK
            W.P.(C) Nos.1797 & 23220 of 2017

  (An application under Articles 226 & 227 of the
  Constitution of India)
 W.P.(C) No. 1797 of 2017
  Manjusha Singhania @                        ...       Petitioner
  Agarawalla
                     -versus-
  Nimish Singhania                            ...   Opposite Party

  For Petitioner                    : Mr. B.Bhuyan,Sr.
                                      Advocate along with
                                      Ms.S.Sahoo, Advocate

  For Opposite Party  : Mr. L.K.Moharana,
                        Advocate
W.P.(C) No. 23220 of 2017
  Nimish Singhania                            ...       Petitioner
                                   -versus-
  Manjusha Singhania                          ...   Opposite Party

  For Petitioner                    : Mr. L.K.Moharana,
                                      Advocate

  For Opposite Party                : Mr. B.Bhuyan,Sr.
                                      Advocate along with
                                      Ms.S.Sahoo, Advocate

        CORAM:
           HON'BLE MR. JUSTICE G. SATAPATHY

                     DATE OF HEARING :17.03.2025
                     DATE OF JUDGMENT:15.05.2025

G. Satapathy, J.

1. The commonality of challenge in these two

writ Petitions, one by wife and the other by husband is

to the impugned order dated 17.01.2017 passed by the

learned Senior Civil Judge, Talcher in I.A. No.63 of

2016 arising out of MAT Case No. 19 of 2016 directing

the husband/father to pay pendente lite maintenance of

Rs.45,000/- per month to wife and Rs.5000/- to the

minor child w.e.f. 11.07.2016 in addition to direction

for payment of litigation expenses of Rs.1,00,000/- to

the wife in an application U/S.24 of Hindu Marriage Act,

1955 (in short, the "HMA").

2. By the aforesaid impugned order, the learned

trial Court has directed the husband to pay arrear

maintenance amount and litigation expenses to the wife

within one month of passing of order by authorizing the

wife to receive maintenance for her minor child in

addition to her own maintenance. For clarity, it needs

to be emphasized that the petitioner in W.P.(C)

No.23220 of 2017 who is the husband has prayed to

set aside the impugned order, whereas the petitioner in

W.P.(C) No.1797 of 2017 who is the wife seeks for

enhancement of the maintenance granted to her vide

the impugned order. Accordingly, both the writ Petitions

are heard together and disposed of by this common

judgment with the consent of learned counsel for the

parties.

3. In the course of hearing, Mr. Lalit Kumar

Moharana, learned counsel appearing for the husband

while not disputing the status of the parties and grant

of pendente lite maintenance to the child @ Rs.5000/-

per month has submitted that the petitioner-husband is

ready to pay Rs.6000/- to the child, since the

husband's income is very meager which is Rs.25,000/-

per month from all sources and he has also incurred

expenses towards rent for his accommodation, travel,

EMI for the loan taken by him, food, clothing and

medicine, but the learned trial Court ignoring such facts

has erroneously directed the husband to pay

Rs.45,000/- per month to the wife. It is further

submitted by Mr. Moharana that the wife has not

approached the Court with clean hands or in terms of

Chapter-III of General Rules and Circular Orders(Civil)

Vol.II (in short, GRCO) containing Rules under Hindu

Marriage Act referred as "The Hindu Marriage and

Divorce Rules,1956 ( in short, the "Rules") in which

Rule-13 prescribes that every application for

maintenance pendente lite, permanent alimony and

maintenance or for custody, maintenance and

educational expenses of minor children, shall state the

average monthly income of the petitioner and the

respondent the sources of these income, particulars of

other movable and immovable property owned by

them, the number of dependents on the petitioner and

the respondent, and the names and age of such

dependents, but the application of wife for pendente lite

maintenance does not disclose the above factors and

thereby, the claim of the wife ought to have been

rejected on that score. On coming to the quantification

of the pendente lite maintenance to the wife, Mr.

Moharana learned counsel for the husband has

submitted that the husband is working as a "Sales

Executive" with Tirupati Enterprises, Jharsuguda since

May-2023 and his current net annual income is

Rs.3,00,000/-, but due to typographical error, the

income of the husband has been shown by him in the

objection to the application for pendente lite

maintenance in I.A. No.63 of 2016 to be net income of

Rs.3,00,000/- per month, however, the husband cannot

pay such a huge amount of Rs.45,000/- per month to

the wife as pendente lite maintenance. Mr. Moharana,

however, has alternatively submitted that since the

petitioner is the husband, he cannot avoid his liability

and at best, he can pay a sum of Rs.15,000/- per

month to the wife. In summing up his argument, Mr.

Moharana has submitted that since the impugned order

has been passed in ignorance of Rule-13 of the Rules

which is mandatory in nature, the impugned order may

kindly be set aside.

3.1 On the contrary, Mr. Bibekananda Bhuyan,

learned Sr. counsel who is being assisted by Ms. S.

Sahoo, learned counsel for the wife has submitted that

the husband is not only an affluent man, but also is

earning Rs.5,00,000/- per annum from all sources

which is very much clear from the admission of the

husband in his objection for earning around

Rs.3,00,000/- per month and purchase of building in

his name as well as spending lakhs of rupees towards

his extravagant living and visiting places in India and

abroad in pleasure trips and therefore, the impugned

order directing the husband to pay Rs.45,000/- to the

wife is quite meager and deserves to be enhanced since

the husband can pay at least Rs.1,00,000/- per month

to the wife. Accordingly, Mr. Bhuyan has prayed to

enhance the pendente lite maintenance of the wife.

4. After having considered the rival submissions

upon perusal of record, it appears that this Court by

way of an order passed on 07.12.2027 in Misc. Case

No.19893 of 2017 arising out of W.P.(C) No.23220 of

2017 has directed for staying operation of the

impugned order as an interim measure subject to

condition the husband going on paying a sum of

Rs.20,000/- per month to the wife w.e.f. December-

2017 onwards and litigation expenses of Rs.75,000/-

and it is stated by learned counsel for the husband that

the husband has cleared up all the arrear dues in terms

of the such interim order of this Court. The husband-

father also does not dispute about paying pendente lite

maintenance to the child @ Rs.6,000/- per month and

thereby, the impugned order with regard to payment of

pendente lite maintenance the child only needs to be

examined on the scope for enhancement, whereas it

needs to be examined with regard to quantum of

pendente lite maintenance to the wife in addition to its

sustainability.

5. In this case, there is absolutely no dispute about

the relationship between the parties, but grant of

pendente lite maintenance in a proceeding of this

nature is to be guided by the provision of Sec.24 of

HMA which provides for grant of pendente lite

maintenance, litigation expenses either of the spouses

and the objective behind Sec.24 of HMA is intended to

provide support to the spouse having no independent

income sufficient for his/her support and necessary

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

requirement also implicitly includes the basic needs of

the spouse like food, clothing and shelter. While

quantifying pendente lite maintenance in a proceeding

of this nature, the financial capacity of the spouse is

the critical factor and the Court has to examine the

spouse's actual income, reasonable expenses for

his/her own maintenance and any dependents which

he/she is legally obliged to support. In addition, the

liabilities and financial commitments are also to be

considered to ensure a balance and fair maintenance

award. In this case, while challenging the impugned

order with regard to pendente lite maintenance to wife,

the husband has resorted to Rule-13 of the Rules which

in fact has not been discussed in the impugned order,

but fact remains that the parties are in litigating terms

prior to 2016 and the narration of the facts also

discloses allegation by the husband that the wife took

away their son on 27.09.2012 by abandoning him and

in this situation, this Court feels that soon there is a

quietus to the dispute between the parties, it is better

for the parties. Further, the present proceeding is for

pendente lite maintenance arising out of a proceeding

in MAT Case No.19 of 2016 for divorce between the

parties. At this length of time, this Court does not wish

to pass any order to relegate the parties to square one

by directing the learned trial Court to decide the

application for pendente lite maintenance and litigation

expense afresh for not following the provision Rule 13

of the Rules on the face of objective of the provision of

Sec.24 of the HMA.

6. On consideration of facts, it is found that the

couple has a son who was born on 10.08.2012 and the

husband has not brought any material on record to

indicate that the wife was earning for her and her child

sustenance. Indisputably, the husband has purchased a

house in the year 2009 which is, however, claimed by

him to have purchased by taking loan, but no document

is produced to evidence to suggest so. On the other

hand, the learned trial Court has taken in the impugned

order that the husband has purchased the aforesaid

house out of his own savings and the other admitted

fact is that the couple had gone to Gangtok, Darjeeling

and many other places in abroad like New Zealand and

Singapore in pleasure trips which is indicative of the

income of the husband. Moreover, the husband in his

objection has also stated his income to be

Rs.3,00,000/- per month which is of course claimed by

learned counsel for the husband to be a typographical

error, but if it is a typographical error, why the husband

has not taken any steps for rectifying the same.

Besides, the father of the husband is also having

business entity in the name and style M/s. Micro

Minerals. Even if the husband has purchased the house

by taking loan and repaying it with an EMI of Rs.8333/-

per month, but the house which has been purchased is

stated to have been given on rent @ Rs.9000/- per

month. Further, the husband is a titan member of lions

club, Jharsuguda. The learned trial Court in the

impugned order has also observed that the documents

filed by the wife further reveals that the husband had

obtained a loan of Rs.10,00,000/- from the HDFC bank

in the year 2015 and he is repaying such loan by

paying EMI of Rs.21,370/- which he has paid till the

month of September, 2015. According to the husband,

he has no dues or arrear to be paid to the wife in terms

of the interim order passed by this Court by which the

husband has been asked to pay Rs.20,000/- per month

and he has admitted to have paid it till March, 2025

w.e.f. December, 2017 for 87 months.

7. On a cumulative assessment of facts in the

background of husband successfully paying a sum of

Rs.20,000/- per month to the wife in terms of the order

passed by this Court as an interim arrangement, this

Court is unable to buy the assertion of the husband that

his monthly income is Rs.25,000/- from all sources and

the earning of the husband is much more than

Rs.25,000/- per month. In view of the above facts and

standard of living of the husband as demonstrated in

the preceding paragraph on the context of present days

cost of living, it can be safely and convincingly said that

the income of the husband would not be less than

Rs.2,00,000/-, but may be more than that up to

Rs.3,00,000/- per month which he admitted in his

objection, no matter claims the same to be a

typographical error subsequently.

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 and the rising cost of living on the face of

inflation to ensure a standard of 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 prior to their

separation. True it is that there cannot be any straight

jacket formula for fixing the amount, but the quantum

of maintenance must be subjective to each case and

dependent on various circumstance and factors, such

as income of the parties; their conduct during

subsistence of the marriage; their individual social and

financial status; their personal expenses; 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 father/mother to

provide maintenance to his/her children, which is

apparent from the following observation made in

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

324, 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. Sec. 24 of the HMA empowers the Court to grant

pendente lite and litigation expenses, but the words

used therein in the context makes the grant of

pendente lite maintenance conditional, which cannot be

granted unless the applicant has no independent

income sufficient for his/her support and, therefore, the

grant of pendente lite and litigation expenses is

dependent on those two words "no independent

income" and "support". In the context, the decision

relied on by the husband in Manish Jain Vs.

Akanksha Jain; (2017) 15 SCC 801 is very clear

wherein the Apex Court in Paragraph-15 has held

thus:-

"15. 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 provide for maintenance pendente lite."

10. What is more important is that, the child "son"

of the estranged couple was born on in the year 2012

and he must be around 13 years right now and,

therefore, this Court has to see his requirement for

maintenance and sustenance as well as his educational

expenses in the standard of living of his father. In the

above premises and discussion of facts & law as

narrated above together with capacity and status of the

parties makes it very clear that the pendente lite

maintenance as granted to wife is little bit on higher side

and interest of justice would be best served, if the

pendente lite maintenance, as granted to the wife is