Aswani Kumar vs Shalu Sharma

Jyotsna Rewal Dua, J

In an application filed by the respondent-wife under Section 24 of the Hindu Marriage Act, the learned Additional District Judge (II), Kangra at Dharamshala vide order dated 8.1.2016 has allowed her maintenance pendente lite of Rs.2000/-per month from the date of filing of the application (9.10.2015) till the disposal of the main petition alongwith litigation expenses of Rs.10,000/-. The husband has challenged this order in respect of the grant of Rs.2000/- as maintenance pendente lite.

Divorce proceedings were initiated by the petitioner-husband against the respondent-wife under Section 13 of Hindu Marriage Act. The respondent filed an application under Section 24 of the Hindu Marriage Act seeking maintenance on the ground that she has no source of income to maintain herself and to bear the litigation expenses. It was also submitted that she alongwith couple's child were residing in the house of her parents and were dependent upon them for sustenance whereas petitioner was working in a Company and earning Rs.20,000/- per month.

The petitioner denied his liability to pay any maintenance amount to the respondent on the count that she was a post graduate lady, capable of maintaining herself. It was also submitted that a maintenance amount of Rs.2500/- had already been awarded in her favour by the learned Additional Chief Judicial Magistrate, Dehra vide order dated 21.2.2015 in a petition under Section 12 of Protection of Women from Domestic Violence Act. It was thus pleaded that the respondent-wife can easily maintain herself and was not entitled for maintenance pendente lite.

After considering the respective contentions of the parties, learned Court below awarded Rs.2000/- per month as maintenance pendente lite to the respondent-wife from the date of filing of the petition. Aggrieved, the husband has filed the instant petition under Article 227 of the Constitution of India.

Learned counsel for the petitioner contended that the respondent had already been awarded Rs.2500/- per month as maintenance under the provisions of Domestic Violence Act on 21.2.2015. Therefore, there was no occasion for the learned court below to award a further amount of Rs.2000/- as maintenance pendente lite under Section 24 of the Hindu Marriage Act. Learned counsel further submitted that the petitioner was not having any income at all, therefore, he was not liable to pay any maintenance amount towards his wife/respondent. Whereas, learned counsel for the respondent-wife has supported the impugned order.

In my considered opinion, the impugned order does not suffer from any infirmity for the following reasons:

5(i) Admittedly, the respondent is the legally wedded wife of the petitioner. The couple is blessed with a child. On account of marital discord, the wife alongwith the child is residing with her parents.

5(ii) No evidence has been produced by the husband in respect of income of respondent. Regarding respondent's capability to earn, it will be appropriate to refer to (2014) 16 SCC 715, titled Sunita Kachwaha and others Vs. Anil Kachwaha, wherein it was observed that merely because wife is a qualified post graduate, it would not be sufficient to hold that she is in a position to maintain herself. Relevant para is extracted hereinafter :-

"8 The learned counsel for the respondent submitted that the appellant-wife is well qualified, having post graduate degree in Geography and working as a teacher in Jabalpur and also working in Health Department. Therefore, she has income of her own and needs no financial support from respondent. In our considered view, merely because the appellant-wife is a qualified post graduate, it would not be sufficient to hold that she is in a position to maintain herself. Insofar as her employment as a teacher in Jabalpur, nothing was placed on record before the Family Court or in the High Court to prove her employment and her earnings. In any event, merely because the wife was earning something, it would not be a ground to reject her claim for maintenance."

5(iii) Contention of learned counsel that respondent having been awarded maintenance amount of Rs. 2500/- under Domestic Violence Act, cannot be awarded maintenance pendente lite, is also misplaced. It is well settled that while deciding quantum of maintenance in a subsequent proceedings, the civil Court/family Court has to take into consideration the maintenance awarded in a previously instituted petition. Award of maintenance in a previous petition is no bar to award of maintenance in subsequent proceedings permissible under different enactments. Relevant para in this regard from the judgment reported in 2021 (2) SCC 324 titled Rajnesh Vs. Neha is as under :-

"60. It is well settled that a wife can make a claim for maintenance under different statutes. For instance, there is no bar to seek maintenance both under the D.V. Act and Section 125 of the Cr.P.C., or under H.M.A. It would, however, be inequitable to direct the husband to pay maintenance under each of the proceedings, independent of the relief granted in a previous proceeding. If maintenance is awarded to the wife in a previously instituted proceeding, she is under a legal obligation to disclose the same in a subsequent proceeding for maintenance, which may be filed under another enactment. While deciding the quantum of maintenance in the subsequent proceeding, the civil court/family court shall take into account the maintenance awarded in any previously instituted proceeding, and determine the maintenance payable to the claimant."

5(iv) Also the fact cannot be lost sight of that the petitioner is also father of a child who is residing with the respondent. The petitioner cannot escape his liability and responsibility to look after the well-being of his wife and child, who at present are residing with respondent's father. The petitioner has the legal and moral responsibilities to look after them. The interim maintenance amount of Rs.2500/- awarded in favour of respondent under the provisions of domestic violence Act has been taken into consideration by the learned court below in determining Rs.2000/- as the maintenance pendente lite. By any stretch of imagination, the amount of Rs.4500/- in all (`2500/-under the Domestic Violence Act + Rs.2000/- under Section 24 of the Hindu Marriage Act) cannot be said to be excessive.

For the foregoing reasons, I find no merit in the petition and the same is accordingly dismissed.