Mukesh Kumar vs Suman Kumari
2023 Latest Caselaw 231 Patna

    IN THE HIGH COURT OF JUDICATURE AT PATNA
      CIVIL MISCELLANEOUS JURISDICTION No.1422 of 2018
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Mukesh Kumar Son of Late Paras Nath Prasad, Resident of Mohalla- Shivganj, P.O.- Ara Chowk, P.S. Ara Town, District- Bhojpur at Ara, Presently posted as Untrained Teacher, at Rana Pratap High School Cum Inter College, Rampur Kala, Saran at Chapra.

... ... Petitioner/s Versus Suman Kumari, Wife of Mukesh Kumar, daughter of Late Suresh Sharma, Resident of Raja Bazar, Sabzi Mandir, Bihiya, P.S.- Bihiya, District- Bhojpur.

... ... Respondent/s ====================================================== Appearance :

For the Petitioner/s   :        Mr.Praveen Kumar
For the Respondent/s   :        Mr.Gopal Krishna

====================================================== CORAM: HONOURABLE MR. JUSTICE SUNIL DUTTA MISHRA CAV JUDGMENT Date : 19-01-2023

1. This Civil Misc. Application has been filed by the

petitioner for setting aside the order dated 09.05.2018 passed by

learned Principal Judge, Family Court, Bhojpur at Ara, in

Matrimonial Case No. 361 of 2017 whereby the petitioner has

been directed to pay interim maintenance of Rs. 15,000/- per

month for his wife/ respondent and two minor children.

2. It appears from the record that the marriage between

the petitioner and respondent was solemnised on 07.12.2012 as per

Hindu rites and customs and out of their wedlock, two children

have been born. Due to the reasons stated in petition, the

petitioner filed divorce case bearing Matrimonial (Divorce) Case

No. 36 of 2017 under Section 13 of the Hindu Marriage Act. The Patna High Court C.Misc. No.1422 of 2018 dt.19-01-2023

respondent-wife vide application dated 13.04.2018 filed an

application for interim maintenance and litigation expenses stating

that she has no source of income and is unable to maintain herself

and her two minor children and the plaintiff is in government

service and have much immovable property and he has income of

Rs. 95,000/- per month. The learned Court below directed the

petitioner to pay Rs.30,000/- as cost of litigation and vide

impugned order petitioner has been directed to pay Rs.15,000/- per

month as interim maintenance.

3. Heard learned counsel for the parties.

4. Learned counsel for the petitioner has submitted that

petitioner, who is untrained Niyojit Teacher at Rana Pratap High

School-cum-Inter College, Rampur Kala, Saran at Chapra has been

receiving salary of Rs.18,395/- per month. A copy of salary

certificate dated 27.04.2018 of the concerned college has been

filed showing total salary Rs.14,288/- p.m. only. It is further

submitted that petitioner was not given any opportunity of hearing

and the learned Court below fixed the quantum of interim

maintenance on the statement of petitioner, without any proof in its

support and the same is excessive and unreasonable which requires

interference by this Court. It is also submitted that presently

petitioner is not working as teacher in the said school. Learned Patna High Court C.Misc. No.1422 of 2018 dt.19-01-2023

counsel for the respondent has submitted that the petitioner-

husband failed to file reply of the petition of respondent u/s 24 of

Hindu Marriage Act despite given proper opportunity to the

petitioner-husband and the Court after considering the facts and

circumstances has passed the impugned order which is justified.

5. It is admitted by the petitioner in the present petition

that he has been receiving his salary of Rs.18,395/- per month. He

has not disclosed other source of income. As per the copy of

certificate issued by the school authority filed by the petitioner on

record shows monthly salary of Rs.14,288/- p.m.

6. Provision of Section 24 of the Hindu Marriage Act

provides for support to be given by the earning spouse in favour of

non-earning spouse during the pendency of the proceeding before

the Court. If the wife has no sufficient independent income for her

support, she can claim maintenance pendente lite. The Court is

required to take into consideration the income of the parties before

deciding the quantum of interim maintenance. The Court has to

keep in view the need of the applicant and paying capacity of the

non-applicant.

7. The object behind Section 24 is to provide financial

assistance to the indigent spouse to maintain herself (or himself)

during the pendency of the proceedings and also to have sufficient Patna High Court C.Misc. No.1422 of 2018 dt.19-01-2023

funds to defend or carry on the litigation so that the spouse does

not unduly suffer in the conduct of the case for want of funds.

Section 24 contemplates a summary enquiry and warrant

expeditious disposal. In the matter of granting maintenance

pendente lite, the Court exercises a wide discretion but this

discretion is not to be exercised arbitrarily. Section 24 does not

lay down any rigid rule of fixing quantum of maintenance. It will

depend upon various factors including the ability of spouse to

earn, means and conduct of spouse etc.

8. The onus is on husband to establish with necessary

material that there are sufficient grounds to show that he is unable

to maintain the family and discharge his legal obligation for

reasons beyond his control. If husband does not disclose the exact

amount of his income, an adverse inference may be drawn by the

Court.

9. A careful and just balance must be drawn between all

relevant factors. The maintenance amount awarded must be

reasonable and realistic and avoid either of two extremes, i.e,

maintenance awarded to the wife should neither be extra vagant

which becomes oppressive and unable for the respondent nor

should it be so meager that it drives the wife to penury. The

sufficiency of the quantum has to be adjudged so that the wife is Patna High Court C.Misc. No.1422 of 2018 dt.19-01-2023

able to maintain herself with reasonable comfort. The Hon'ble

Supreme Court in Rajnesh Vs. Neha & Anr. (2021)2 SCC 324

given the general guidelines and directions for deciding a

maintenance application.

10. In Ritula Sngh Vs. Rajeshwar Singh 2010 (4)

Mah. L.J. 797 the Bombay H.C. examined the scope of Section

24 and 25 of the Act and held as under :-

"10. The distinction between the law laid down under Section 24 and 25 of Hindu Marriage Act is distinct and clear. It is so because of the specific circumstances that the Court would require to see at the time of each of these applications. It may be clarified that for considering the application for interim maintenance under Section 24 of the Hindu Marriage Act, which is decided upon affidavit of the parties alone, the Court cannot and would not consider the precise income, standard of living, conduct of the parties, other properties and other circumstances of the case.

The ambit of of grant of interim maintenance under section 24 is narrower than the ambit under Section

Under Section 25 of Hindu Marriage Act, the entire evidence, relating to the income, properties of both the parties and their conduct and circumstances would be and can be seen. This is because the evidence is led in that behalf at the time of final hearing."

11. The monthly income of one party may not often be

within the knowledge of the other party, when the relationship is

considerably strained and spouses are living apart for a

considerable period. The true income of the parties is within their Patna High Court C.Misc. No.1422 of 2018 dt.19-01-2023

personal knowledge and Section 106 of the Indian Evidence Act

specifically casts the burden of proof of the income on them.

12. Having heard the learned counsel for the parties and

on perusal of impugned order and the material on record, it

appears that the respondent-wife has to maintain herself and her

two children and it is not the case of petitioner that she has other

source of income. The petitioner being the teacher is liable to pay

maintenance pendente lite.

13. Considering salary certificate of the petitioner on

record and the principle of law discussed above, at this stage, it is

in the interest of justice that the amount of interim maintenance

granted by the Court below be modified. Hence, the amount of

interim maintenance granted in impugned order is hereby reduced

to Rs. 8,000/- per month instead of Rs. 15,000/- from the date of

this order.

14. This Misc. Application is disposed of accordingly.

(Sunil Dutta Mishra, J)

sanjeev/-

AFR/NAFR                NAFR
CAV DATE                13.1.23
Uploading Date          20.1.23
Transmission Date