Adesh Khandelwal vs Smt. Saroj Khandelwal

M.C. Sharma, J.—This appeal has been filed u/s 28 of the Hindu Marriage Act, against the order dated 13.2.2008 passed by Addl. District Judge No. 2 Bharatpur in Civil Misc. Case (Hindu Marriage Act) No. 05/2008 whereby the application filed by the respondent u/s 24 of the Hindu Marriage Act, 1955 moved in the petition u/s 13 of the Hindu Marriage Act, has been partly allowed and the interim maintenance to the tune of Rs. 3,000/- per month along with cost of litigation has been granted in favour of the respondent. The facts have been set out in the impugned judgment and hence I am not repeating the same here except wherever necessary.

Brief facts of the case are that the appellant filed a petition u/s 13 of Hindu Marriage Act against the respondent for grant of divorce decree with the averments that both the parties married on 8.11.2000 in Khandelwal Vaishya Samaj Samellan, Delhi without any dowery. After marriage they lived together for sometime and out of the said wedlock one son Sahil @ Munna was born. The appellant is residing along with his old aged mother and younger brother. After marriage the respondent''s behaviour towards the appellant and other family members was non cooperative, as she asked the appellant for separation. But the appellant refused to do so. Her attitude remained adamant and she went Agra on 19.11.2000 along with Gopal Ram Singhal and after few days the appellant brought her back but her behaviour was cruel and used to quarrel with all family members and threatened to commit suicide and her behaviour remained continued. Prior to marriage the respondent married with one Jitendra Jindla and without getting divorce she entered into second marriage with one Satya Prakash who later on died and after his death she married with the appellant. The respondent and her family members suppressed this fact at the time of marriage. The respondent time and again approached to the police station against the appellant and other family members. On 5.11.2006 the respondent and appellant executed an understanding that respondent will reside at her parental house for three months and during this period appellant will pay Rs. 1500 and the appellant regularly paid the said amount. Thereafter on 27.12.2006 the appellant through letter asked the respondent to return back to the matrimonial house if there is change in her attitude and behaviour and she came on 12.1.2007 and tried to take away forcibly his son but she could not success. It is stated in the petition that the respondent is residing in the house of the appellant and the appellant is residing in a rented house along with his old aged mother, younger brother and minor son. The respondent filed a criminal case against the appellant in which she has obtained order for interim maintenance to the tune of Rs. 1500 per month vide order dated 20.9.2007 passed by Judicial Magistrate No. 2 Bharatpur. The respondent also instituted case under the Domestic Women Violence Act in which the Judicial Magistrate No. 2 Bharatpur without considering the facts has granted maintenance to the tune of Rs. 1,500/- per month vide order dated 31.1.2008. Thus the respondent is getting Rs. 3,000/- per month from the above orders.

It has been stated that during the pendency of the petition u/s 13 of the Hindu Marriage Act, the respondent moved an application u/s 24 of the Hindu Marriage Act for grant of interim maintenance alleging therein that the appellant is earning Rs. 18,000 per month. The appellant submitted reply to the said application and pleaded that he is getting only salary of Rs. 7,500/- per month and he has to maintain four members and on the contrary the respondent is residing in his house and she has already obtained orders from the courts for interim maintenance to the tune of Rs. 3,000 per month. It was in these circumstances prayed that she is not entitled to get any interim maintenance and prayed for dismissal of the application, The court below without considering these facts granted Rs. 3,000/- per month from the date of filing the application and Rs. 2100 as cost of litigation vide order dated 13.2.2008. Against this order of the court below this appeal has been filed.

The learned counsel for the appellant has argued that the Court below has not properly considered the fact that the respondent has been already getting interim maintenance in the sum of Rs. 3,000/- by two different orders of the court. The court below in the order has observed that the respondent is residing along in the house of the appellant and except herself she has no other expenses. On the contrary the appellant is residing in a rented house and having liability of four persons. The appellant is getting Rs. 7,500/- per month. It was argued that in these circumstances it is impossible to make payment of such a huge amount to the respondent.

The learned counsel for the respondent has opposed the arguments of the learned counsel for the appellant. It has been argued that the order passed by the court below in relation to interim maintenance is just and proper. The court below has granted only Rs. 3,000/- per month to the respondent as interim maintenance, this amount cannot be said to be excessive in these days. It has been argued that it is only an interim maintenance and final maintenance has yet to be decided by the court below. It was prayed that the appeal filed by the appellant may be dismissed against the order of interim maintenance.

I have considered the arguments of the parties and also perused the judgment of granting interim maintenance. It is an admitted fact that the petition for divorce u/s 13 of the Hindu Marriage Act is pending between the parties. The order dated 13.2.2008 is an interim maintenance u/s 24 of the Hindu Marriage Act. Section 24 of the Hindu marriage Act, reads as under:

Maintenance pendente lite and expenses of proceedings-Where in any proceedings under this Act 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 the wife or the husband, order the respondent to pay to the petitioner the expenses of the proceeding, and monthly during the proceeding such, sum as, having regard to the petitioner''s own income and the income of the respondent, it may seem to the court to be reasonable:

Provided that the application for the payment of the expenses of the proceeding and such monthly sum during the proceeding shall, as far as possible, be disposed of within sixty days from the date of service of notice on the wife or the husband, as the case may be.

From the above it is clear that the order u/s 24 of the Hindu Marriage Act is a maintenance pendente lite i.e. during the pendency of the proceedings u/s 13 of the Hindu Marriage Act before the court concerned. The court below in the order dated 13.2.2008 observed as under:

I have gone through the findings arrived at by the Court below in the impugned order dated 13.2.2008 and I am agreement with the findings arrived at by the Court below. The Court below has only granted a sum of Rs. 3,000/- per month as an interim maintenance to the respondent and litigation cost of Rs. 2,100/- to the respondent. This order of the court below cannot be said to be perverse. The appeal filed by the appellant in these circumstances deserves to be rejected. For these reasons, the misc. appeal filed by the appellant against the order dated 13.2.2008 granting interim maintenance to the respondent in the sum of Rs. 3,000/- per month from the date of application and cost of litigation Rs. 21,000/-, is rejected. The interim stay granted on 4.4.2008 is vacated. The stay application also stands rejected. The parties are directed to bear, their own costs.