Anupam vs Smt. Jyoti

Hon''ble Shri Justice Sujoy Paul

In this petition filed under Article 227 of the Constitution, challenge is made to the order dated 8.8.2012, whereby the court below allowed the application u/s 24 of Hindu Marriage Act, 1955 (for brevity, "HM Act"). In a proceeding pending u/s 13 of HM Act preferred by the petitioner (husband), the wife filed said application u/s 24 of the HM Act (Annexure P-3). In turn, the husband filed his reply (Annexure P-4). In the application u/s 24 aforesaid, it is stated that the wife is getting Rs. 3875/- per month as honorarium, out of which she is required to spend Rs. 1500/- on house rent, Rs. 1000/- for the food of small child and remaining amount on medicines, clothing and other necessary expenses. The wife is facing great financial hardship and it is difficult for her to even afford fare to travel to the school where she is working. She, in addition to that, is required to bear expenses to contest the litigation and is required to pay huge fees to the counsel. It is stated that the husband earns about Rs. 60000-70000/- per month and he can easily afford to pay Rs. 5000/- per month as maintenance to the wife.

In turn, by Annexure P-4 the husband has denied the allegations and stated that the wife is not residing in a rented house but is residing with her parents. She is not required to pay any rent. It is further stated that the allegations made by the wife are factually incorrect. The husband does not have rolling practice and his earning is not as alleged by the wife. By way of "special objection" in the said reply it is stated that the wife, in addition to her teaching profession, is earning through beauty-parlour, stitching, embroidery, painting etc. She is running classes to impart training on the said subject, out of which she earns Rs. 25000/- per month.

The court below allowed the application and directed the husband to pay Rs. 6000/- as a maintenance pendente lite.

I have heard learned counsel for the parties at length.

It is gathered that neither Annexure P-3 is supported by any affidavit nor Annexure P-4. Interestingly there is not even a verification clause in the application u/s 24 (Annexure P-3). The reply suffers from same defect. The court below although referred contentions of the parties but did not deal with the "special objection" raised by the husband in his reply. A perusal of the application and the reply shows that the husband and wife had taken diametrically opposite stand and such stand is not even supported by affidavit. Thus, the pivotal question is as to how maintenance can be determined in such cases.

Needless to mention that the court while determining the question of maintenance is required to deal with the rival stands/contentions of the parties raised in their application and reply. The order of court below suffers from first infirmity, i.e., it does not deal with the "special objection" raised by the husband in his reply. In other words, it is not mentioned by the court below as to why the stand taken by the husband in his special objection is not found trustworthy by the court below. The court was under a legal obligation to deal with the same and assign reason on it. Secondly, when such diametrically opposite stands are taken, the court should have at least conducted a summary enquiry to determine the amount.

This Court in Laxmibai Vs. Ayodhya Prasad alias Ramadhar, while dealing with almost similar situation held as under:-

When an application for maintenance pendente lite u/s 24 of the Hindu Marriage Act is made, it is the duty of the Matrimonial Court to hold a summary enquiry to determine prima facie the merits of the case as also the question of means of the parties for maintenance. The scope of enquiry u/s 24 of the Act can be compared with the scope of enquiry of a civil matter where some interim relief in the nature of temporary injunction or appointment of receiver is claimed by one of the parties. The scope of enquiry u/s 24 of the Act is not as wide as the fullfledged trial of the suit or proceeding but would be certainly an enquiry based on oral evidence or affidavits of the parties sufficient enough to decide the question of grant of interim relief.

(Emphasis Supplied)

The ratio of the said judgment is that it is the duty of the Matrimonial Court to hold a summary enquiry to determine prima facie merits of the case and to determine the means of the parties for determining amount of maintenance. It is also made clear that it should not be a full fledged detailed enquiry but an enquiry of the nature which is normally conducted by the trial courts for the purpose of grant of injunction. In the present case, admittedly, the court below has not conducted any summary enquiry and without there being any affidavits of the parties has determined the question of maintenance. In my view, it runs contrary to the scheme of section 24 of HM Act and the law laid down in Laxmibai (supra).

Consequently, the order impugned cannot be permitted to stand. It is accordingly set aside. The court below is directed to deal with the said application u/s 24 of the HM Act as analyzed above and decide it in accordance with law afresh. Petition is allowed. No costs.