Deepak Narwariya vs Subhadra Narwariya

Sheel Nagu, J.—Heard on the question of admission. This petition under Article 227 of the Constitution of India assails the order dated 30/08/2013 passed in case No. 54/13 HMA, whereby, an application u/s 24 of the Hindu Marriage Act, 1956 preferred by the respondent-wife before the family court for grant of maintenance pendente lite has been allowed to the extent of granting Rs. 2,000/- per month to the respondent-wife with Rs. 2,000/- as litigation expenses and Rs. 100/- for expenses to attend every hearing of the case.

Learned counsel for the petitioner-husband contends that while deciding the application u/s 24 of the Hindu Marriage Act, the court below did not take into account the facts and material placed before it that the petitioner-husband was suffering from T.B. in regard to which pleadings are made in paragraph 4 of the reply filed by the petitioner to the application of the respondent u/s 24 of the Hindu Marriage Act. It is further contended that the fact of the respondent having sufficient earning to support herself by running a coaching centre and beauty parlour deriving income of Rs. 10,000/- per month, has not been considered. It is further contended that the trial court has not taken into account the physical inability of the petitioner.

The proviso to section 24 of the of the Hindu Marriage Act is reproduced herein below for ready reference:-

Maintenance pendente lite and expenses of proceedings:- Where in any proceeding 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.

A bare perusal of the above said statutory provisions of section 24 of the Hindu Marriage Act, elicits that while exercising its discretion for awarding of maintenance pendente lite following three considerations ought to weigh in the mind of the court:-

(a) The petitioner''s own income;

(b) The income of the respondent; and

(c) The applicant u/s 24 of the Hindu Marriage Act does not have independent income sufficient for her or his support.

Thus, while adjudicating upon the application u/s 24 of the Hindu Marriage Act summary enquiry is to be held to come to a prima facie conclusion on the basis of material placed by the rival parties as regards above three basic ingredients u/s 24 of the Hindu Marriage Act. The nature of the enquiry has not been laid down by the provision but the term "it appears to the court" necessarily implies that the material placed by the rival parties in support or against the above said three ingredients is required to be processed through the mechanism of adjudication to churn out the end result of findings for or against the party applying u/s 24 of the Hindu Marriage Act. Since prima facie view has to be taken by the Court it is obvious that the enquiry cannot be a detailed one, the evidence in shape of documents or affidavit can be considered for coming to a prima facie finding as regards the above said three ingredients.

The least that is expected of the trial court while adjudicating an application u/s. 24 of the Hindu Marriage Act is to record clear findings as regards the above said three (3) ingredients.

Testing the sustainability of the impugned order on the anvil of the above said discussion and the legal provision, it is evident that clear findings in regard to the above said three ingredients which are the heart and soul of section 24 of the Hindu Marriage Act has been recorded by the trial court or not.

In view of above, the Court below has failed to exercise jurisdiction vested in it u/s 24 of the Hindu Marriage Act in the right perspective. Accordingly, this petition under Article 227 of the Constitution of India deserves to be and is therefore allowed with the following directions:-

(1) The impugned order dated 30/08/2013 passed in case No. 54/2013 HMA is hereby set aside.

(2) Learned trial court is directed to re-consider the application u/s 24 of the Hindu Marriage Act preferred by the respondent wife in accordance with law after affording due opportunity to the rival parties and decide the same as expeditiously as possible preferably within a period of two months from the date of production of copy of this order.

(3) Setting aside of the impugned order shall not adversely affect the right of the respondent-wife to receive the maintenance pendente lite and the expenses fixed by the trial court in the impugned order which shall continue to be paid to the respondent-wife by the petitioner-husband and will remain subject to fresh decision taken by the learned trial court on the application u/s 24 of the Hindu Marriage Act.

(4) No order as to costs.