Banarsi Meghwal vs Dinesh Kumar

Ajay Rastogi, J.—Since both the review petitions have been filed by the respective parties for recalling/revising the order Dt. 2.4.2013 passed on an application filed by the appellant Dr. Banarasi Meghwal for grant of maintenance pendente lite u/S. 24 of the Hindu Marriage Act, 1955 (The Act), and with the consent of the parties, both the review petitions are decided by the present order.

Before examining the review petitions on merits filed by the respective parties, the facts in brief are that the marriage of the parties was solemnized on 11.4.1993 according to the Hindu rituals and customs but after some time, allegations were alleged by the parties against each other and for good reasons they were not able to continue their married life any more and the respondent husband filed application seeking divorce u/S. 13 of the Act on 20.8.2005.

It may be noticed that pending divorce petition before the ld. Family Court, the appellant wife filed application for maintenance u/S. 24 of the Act but that came to be rejected by the ld. Family Court vide its order Dt. 31.8.2010 and finally after the parties being heard on merits, decree of divorce was granted to the husband by the ld. Family Court vide judgment and decree Dt. 31.8.2010. The appeal aforementioned puts to challenge the judgment and decree of the ld. Family Court Dt. 31.8.2010 decreeing the suit for dissolution of marriage instituted by the respondent husband against the appellant wife and the appeal was admitted by this Court on 6.10.2010. Separate application came to be filed by the appellant wife in accompanying DB Civil Misc. Appeal-2310/2010 u/S. 24 of the Act seeking maintenance pendente lite of Rs. 30,000/- per month along with cost of litigation. It may also be noted that the accompanying DB Civil Contempt Petition-438/2011 has been preferred on the premise that the husband contracted second marriage on 16.10.2010 which he got registered on 21.10.2010 and he has a child from this wedlock.

In the application which the appellant wife filed seeking maintenance pendente lite u/S. 24 of the Act, it was averred that the opposite party is the Assistant Engineer with the State Govt. and posted on deputation as Development Officer in Panchayat Samiti, Khetri, District Jhunjhunu and his monthly income is Rs. 36,000/- per month and also holds immovable properties whereas she has no means of livelihood and unable to take care of her daily needs and is entitled to maintenance pendente lite of Rs. 30,000/- per month for her survival which the respondent is obligated in law to provide as maintenance. The opposite party in reply to the application u/S. 24 of the Act admitted that his take home salary was about Rs. 42,000/- per month, but, at the same time, it was pleaded that the appellant is a daughter of the then State Minister and she is holding several plots and also running petrol pump in Kasba Randhisar Pahadi, Sujangarh and running other business and owns agriculture land and a regular tax payer for long time and has sufficient means for livelihood and to meet out her daily needs. But it appears that apart from what was being specifically averred by the respondent husband in reply to the application filed by appellant wife seeking maintenance pendente lite u/S. 24 of the Act, supporting documentary evidence was not placed on record, this Court proceeded on the basis of material came on record and taking note of income of the respondent husband of Rs. 42,000/- per month and the fact that he has solemnized second marriage on 6.10.2010, having child from this wedlock and that he has to maintain his mother, wife and minor daughter apart from himself, disposed of the application vide order Dt. 2.4.2013 with the direction to the respondent husband to pay a sum of Rs. 10,000/- per month as maintenance pendente lite to the appellant wife w.e.f. 1.1.2013 and further direction in respect of payment of arrear which may be liquidated by the end of April 2013.

It is also informed that a sum of Rs. 50,000/- was paid by the respondent through account payee cheque Dt. 19.5.2014 and it is admitted by the appellant wife that it has been credited to her account.

Immediately, after passing of order of this Court granting maintenance pendente lite to the appellant wife vide order Dt. 2.4.2013, the respondent husband filed Review Petition-50/2013 on 8.4.2013 under Order 47 R.1 CPC for recalling of order Dt. 2.4.2013 and at the same time, the appellant wife also filed separate Review Petition-49/2013 on 29.4.2013 for enhancement of maintenance pendente lite of Rs. 30,000/-.

After notices came to be served on the respective parties on the review petitions, reply has been filed by each of the party.

In the review application filed by the respondent husband, it may be noticed that in the reply which he filed to the application u/S. 24 of the Act, all the relevant facts were pleaded but supporting documentary evidence was not annexed in support thereof, however, along with present review application, respondent husband placed on record supporting documentary evidence to show that she has sufficient source of income to fulfill her daily needs and her total income is much more than what she is claiming from the husband and the statement made in the application that she has no means of livelihood for meeting out her daily needs and expenses is per se factually incorrect and in rebuttal thereof he has placed on record the income tax returns furnished by the appellant wife and the returns of income reveals that she is a regular tax payer for the last more than 10 years and apart from it, she is running a petrol pump in the name of M/s. Dinesh Filling Station and regular returns are being filed and indisputably she is the sole proprietor of the petrol pump and that is also indicated in the return of income of year 2005-06 and apart from it there was a raid of the Anti Corruption Bureau at the residence of the father of the appellant wife Master Bhanwar Lal Meghwal, Ex Cabinet Minister, Govt. of Rajasthan and in his statement recorded before the Anti Corruption Bureau he made voluntary disclosure of the properties indicating that 36 bigha of agriculture land situated in Ladnu, District Nagaur out of which 18 bighas belongs to the appellant Dr. Banarasi Meghwal and 18 bighas in the name of Manoj (her brother). It has also come on record that she is a registered owner of four wheeler Honda City RJ-14 CB 2516 purchased on 7.8.2006 is maintained by her and at the same time she admitted before the Court that she is presently residing in the house constructed by the respondent husband over plot No. 47, Shrirampura Colony, Civil Lines, Jaipur after taking loan and for which he is making payment of monthly installments out of his salary and presently the aforesaid house is in possession of the appellant wife. The details of the property at one time owned by the appellant wife reads ad infra-

In the review petition filed by the appellant wife, averment has been made that apart from income from salary of the respondent, he had other sources of income from the household property at Shajhanpur, District Alwar having certain shops from which he is receiving monthly rent and holding agriculture land at Shajhanpur and also holding certain other properties further the fact is that he belongs to affluent family and all his five brothers are well settled and Class-I Gazetted Officer but apart from the averment which has been made by the appellant wife in para 5, no tangible supporting evidence is annexed thereto and this has been specifically denied by the respondent husband in reply to the review application filed by the appellant wife in its unequivocal terms and in rebuttal supporting evidence has been placed on record to show that the income of the appellant is sufficient for her own maintenance and livelihood and she does not need any further maintenance pendente lite from the respondent husband.

As regards income of either party on record reference has been made by the respondent in his reply to the review petition filed by the appellant wife and while the application filed by the appellant wife filed u/s. 24 of the Act came to be considered by this Court seeking maintenance pendente lite, since documentary evidence was not placed in support thereof, this Court has not taken cognizance and as noticed keeping in view the income of the respondent husband which he admitted Rs. 42,000/- per month as his take home salary and other facts that he has solemnized second marriage and has a child from this wedlock and the mother, wife and minor child is dependent upon him, this Court arrived to a conclusion that appellant wife is entitled to at least amount of Rs. 10,000/- as maintenance pendente lite pending proceedings and disposed of the application accordingly vide its order Dt. 2.4.2013.

Both the counsel in their respective review petitions raised objections and counter objections and we have considered the submission made by the respective parties and also taken note of material documentary evidence which has now come on record in justifying the respective claims of the parties.

It is settled that during pendency of divorce petition and pending appeal at any point of time wife or the husband if establish that he/she is not having sufficient income for her/his support, it is open to claim maintenance pendente lite. Sec. 24 entitles not only the wife but also the husband to claim maintenance pendente lite on showing that he/she has no independent source of income. However, the husband will have to satisfy the court that either due to physical or mental disability he is handicapped to earn and support his livelihood. Sec. 24 in fact provides for support to be given by the earning spouse in favour of non-earning spouse during the pendency of proceedings before the court and income of the parties certainly is the paramount consideration before deciding the quantum of interim maintenance which is to be paid by either party pendente lite obviously keeping in view the paying capacity of the party.

We find from the record that in the reply which was originally filed by the respondent husband in reference to the application filed by the appellant wife u/S. 24 of the Act seeking maintenance pendente lite, specific averment was made in reference to the property and source of income of the appellant wife but supporting documentary evidence was not annexed and this Court had taken into consideration the averment made while passing the order Dt. 2.4.2013 granting maintenance pendente lite to the appellant wife but it is always expected for the party to come with clean hands, when the source of income of the respondent husband was on record and even his take home as pleaded by her was Rs. 36,000/- which later he admitted of Rs. 42,000/- and he has a justification that he solemnized second marriage on 16.10.2010 and got it registered on 21.10.2010 and having a child from this wedlock and has no other source of income to maintain his family.

In the present review application which she has filed for enhancing the amount to Rs. 30,000/- from Rs. 10,000/- which she has prayed for in the original application seeking maintenance pendente lite, this Court find that the respondent husband in his review petition and so also in the reply which he has filed to the review petition filed by the appellant wife placed sufficient documentary evidence on record indicating the fact that she has sufficient source of income for her maintenance and livelihood and to maintain day to day needs from her own sources of income and from the material which has come on record this Court can certainly arrive to a conclusion that in absence of documentary evidence which the respondent could not place on record at the time of filing reply to the application u/S. 24 of the Act, order Dt. 2.4.2013 was passed by the Court granting maintenance pendente lite.

From the reply filed to the review application of the appellant wife u/S. 24 of the Act, we are satisfied that she had sufficient sources of income for her own maintenance and to meet out basic needs, her income must have been more than what she is claiming from the respondent for her maintenance pendente lite.

In review application which has been filed by the appellant wife for enhancement of maintenance pendente lite to Rs. 30,000/- we find that a bare averment s been made but in support thereof no supporting documentary evidence is on record. At the same time, there is sufficient documentary evidence on record which the respondent husband annexed along with the reply to the review petition filed by the appellant wife, we have noticed from the record and are satisfied that she had sufficient income from her own sources even not only for maintaining herself but also meeting out daily needs required for her and the appellant wife has concealed the material facts from the court in disclosing her sources of income and this being apparent error which could not be apprised to the Court by the respective party when the order came to be passed on the application filed u/S. 24 of the Act Dt. 2.4.2013.

We are of the considered view that in the light of the material which has now come on record, the order Dt. 2.4.2013 granting maintenance pendente lite to the appellant wife of Rs. 10,000/- per month does require interference.

Consequently, the review petition-50/2013 filed by the respondent husband stands allowed and the order Dt. 2.4.2013 in DB Civil Misc. Application-82/2010 is hereby recalled and the review petition-49/2013 filed by the appellant wife for enhancement is hereby dismissed. As a consequence whereof application u/S. 24 of the Act for grant of maintenance pendente lite filed by the appellant wife stands dismissed.

It is made clear that what is being observed by this Court is only for the purpose of disposal of both the review petitions, however, rights of either party may not be adversely affected by the observations made while main appeal being examined on merits.