Avinash Agarwal vs Vaishali

Ravindra Maithani, J

Heard learned counsel for the appellant.

Challenge in this appeal, is order dated 03.03.2017 passed in Original Suit No.211 of 2012, Shri Avinash vs. Smt. Vaishali by the court of learned Principal Judge, Family Court, Dehradun (hereinafter referred to as "the suit"). By the impugned order, an application filed under Section 24 of the Hindu Marriage Act, 1955 (for short the "Act") filed by the respondent was partly allowed and the appellant was directed to pay Rs.3,000/- per month to the respondent and Rs.5,000/- per month to her son as maintenance pendente lite and also Rs.10,000/- against the expenses of the proceedings.

Notice in this matter was sent to the respondent, which was served on her personally but, she did not appear.

Learned counsel for the appellant would argue that the respondent was earning Rs.18,000/- per month as salary and Rs.20,000/-as rent from the house. There was no need to pay any maintenance pendente lite to her. The appellant has already been paying and is still paying Rs.5,000/-per month to the respondent as awarded under the provisions of Protection of Women from Domestic Violence Act, 2005, (for short, "the DV Act) therefore, the interim order deserves to be set aside.

In the suit, an application under Section 24 of the Act was moved by the respondent, in which she made statements with regard to the income of the appellant as well as her own income. The appellant filed objections and stated that the respondent is earning Rs.18,000/- by way of salary and Rs.20,000/- as house rent. In para 8 of the impugned order, the court has observed that there has been no rebuttal by the respondent in so far as earning of Rs.20,000/- as house rent is concerned. In para 10 of the impugned order, it has been categorically stated that bank statement of the respondent reveals that she is earning Rs.18,000/- per month as salary and in para 13 of the impugned order, the Court concluded that the monthly salary of the appellant is Rs.50,000/- whereas, the respondent is earning Rs.18,000/- by way of salary and Rs.20,000/-as house rent. It has also been made clear in the impugned order that amount so ordered under Section 24 of the Act is to be adjusted against any other amount, which the appellant has been ordered to pay to the respondent. As the appellant had already been paying Rs.5,000/- under the DV Act, in the nutshell, by virtue of impugned order, the appellant was fastened with a liability of paying further Rs.3,000/- as pendente lite maintenance apart from the expenses of the proceedings.

On 29.03.2019 when this mater was taken up, this Court, inter-alia directed that the appellant would continue to pay at the rate of Rs.5,000/- per month.

Respondent's monthly income is Rs.38,000/- whereas the appellant's salary was assessed as Rs.50,000/-. In addition to it, the appellant had already been ordered to pay Rs.5,000/- as maintenance under the DV Act. If Rs.5,000/- per month is added to the income of the respondent, it comes out to be to Rs.43,000/-. Therefore, this Court is of the view that except expenses against proceedings, no maintenance pendente lite ought to have been awarded either to the respondent or to minor child. Therefore, the impugned order deserves to be modified to the extent.

The appellant shall be liable to pay only expenses of the proceedings, under Section 24 of the Act.

The impugned order is modified, accordingly.