Uttarakhand High Court
Unknown vs Avdesh on 14 June, 2022
Office Notes, reports,
SL. orders or proceedings or
Date COURT'S OR JUDGES'S ORDERS
No directions and Registrar's
order with Signatures
14.06.2022
SA No. 94 of 2018
Hon'ble Sharad Kumar Sharma, J.
Mr. Pankaj Kuma, Advocate, holding
brief of Mr. Neeraj Garg, Advocate, for the
appellant.
The present Second Appeal arises out
of a concurrent judgment, which had been
rendered by the learned Court below, whereby,
the plaintiff/appellant's, proceedings which was
registered before the Court below under Section
13 of the Hindu Marriage Act, by way of Suit
No. 25 of 2014, Gunjan Bhatt Vs. Avdesh
Bhatt, has been concurrently dismissed.
During the pendency of the
proceedings of Suit No. 25 of 2014, the
respondent/husband, had filed an Application
by way of counterclaim under Order 8 Rule 6A,
raising a counterclaim by invoking the
provisions contained under Section 9 of the
Hindu Marriage Act, for grant of decree of
restitution of conjugal rights. The learned Civil
Court, vide its judgment dated 25.04.2017, had
dismissed the appellant's proceedings under
Section 13(1)(i-a) of the Hindu Marriage Act, of
the plaintiff/appellant and the counterclaim of
the respondent/husband for restitution of
conjugal rights has been decreed.
In the present Second Appeal, the
challenge given by the plaintiff/appellant is to
the rejection of her claim under Section 13 of
the Hindu Marriage Act, but, there is no
independent challenge which had been given to
the decree rendered in the counterclaim in
favour of the defendant/respondent while
decreeing the proceedings under Section 9 of
the Hindu Marriage Act.
The plaintiff/appellant herein presses
an application under Section 24 of the Hindu
Marriage Act, praying for a pendente lite
maintenance of a sum of Rs. 40,000/-, as Rs.
20,000/- maintenance for herself, and Rs.
15,000/- maintenance for the child, who was
born out of the wedlock.
This Court is of the view that so far as
the claim of maintenance by the
plaintiff/appellant is concerned, that cannot be
awarded under Section 24 of the Hindu
Marriage Act, in the absence of substantiating
the facts that:-
(1) That the plaintiff/appellant doesn't
have got any independent source of earning;
(2) What is the source of earning of the
defendant/husband and the amount of income
accruing to him?
(3) What is the dependency and the
other liability of which, the defendant/husband
has to cater?
No such pleading has been raised by
the plaintiff/appellant in the application filed
under Section 24 of the Hindu Marriage Act.
Hence, so far as the claim of maintenance under
Section 24 of the Hindu Marriage Act, by the
plaintiff/appellant for herself is concerned, that
cannot be awarded, particularly, when the
marriage stands restored as a consequence of
the decree rendered under Section 9 of the
Hindu Marriage Act, and the plaintiff/appellant
is not discharging her matrimonial obligations
as a consequence of the decree for restitution of
conjugal rights. Hence, her claim for
maintenance under Section 24 of the Hindu
Marriage Act, would stand rejected.
As far as the claim for maintenance
towards the child is concerned, which has been
determined to be claimed @ Rs. 15,000/- is
concerned, since in the proceedings before the
Court below, it was not in dispute that Master
Shiv was born out of the wedlock, and it is
admittedly depended upon the
plaintiff/appellant, so far as the maintenance
payable towards the son is concerned, since the
son would not be attributable to any of the vices
of not giving a challenge to the proceedings
under Section 9 of the Hindu Marriage Act, he
would be entitled to be granted with the
pendente lite maintenance which, this Court, in
the absence of there being any evidence brought
on record by the applicant to the contrary for
determining the maintenance, tentatively this
Court directs the respondent/husband to pay a
maintenance of Rs. 10,000/- as a maintenance
payable towards the son Master Shiv only. The
maintenance, as claimed by the
plaintiff/appellant would stand rejected.
Thus, the Application No.
CLMA/13707/2018, is only partly allowed, to
the extent of determination of maintenance
payable to the son.
(Sharad Kumar Sharma, J.)
14.06.2022
Mahinder/
