Kajal vs Gurinder Singh

L.N. Mittal, J.—Kajal has filed this revision petition under Article 227 of the Constitution of India against her husband Gurinder Singh - respondent for enhancement of maintenance pendente lite granted to her by learned Additional District Judge (Ad hoc), Fast Track Court, Amritsar, vide order dated 23.11.2010 (Annexure P-4). Respondent-husband has filed divorce petition u/s 13 of the Hindu Marriage Act, 1955 (in short - the Act) against petitioner-wife. During pendency of the said divorce petition, wife filed application u/s 24 and 26 of the Act claiming maintenance for herself as well as for a minor son and a minor daughter of the parties, residing with the wife and also claiming litigation expenses. Wife alleged that she has no source of income. Both the minor children are school-going, studying in ninth and seventh standard. The husband has income of more than Rs. 40,000/- per month, running business of goldsmith and selling gold ornaments.

The husband alleged that he has been turned out of the joint house of the parties and is residing in rented accommodation @ Rs. 1,000/- per month rent. It was alleged that the wife herself is income tax assesse. The husband, however, did not state as to how much income he was having.

Learned trial court, vide impugned order (Annexure P-4) held that minor children are not entitled to maintenance pendente lite u/s 24 of the Act. Income of the husband was found to be Rs. 10,000/- per month in view of his income tax return for the year 2008-09 depicting income of Rs. 1,19,000/- for a year. Accordingly, trial court directed the husband to pay Rs. 3,000/- per month as maintenance pendente lite to the wife from the date of application and also to pay her Rs. 5,000/- as litigation expenses. Feeling aggrieved, wife has filed this revision petition for enhancement of the maintenance pendente lite.

I have heard Learned Counsel for the parties and perused the case file.

At the outset, it has to be noticed that the wife had filed application not only u/s 24 of the Act, but also u/s 26 of the Act claiming maintenance for herself as well as for the minor children besides litigation expenses. The trial court held that minor children are not entitled to maintenance pendente lite u/s 24 of the Act. However, learned trial court failed to take notice of Section 26 of the Act, which stipulates that in any proceedings under the Act, the Court may from time to time pass such interim orders and make such provisions in the decree as it may deem just and proper with respect to the custody, maintenance and education of minor children. Accordingly, u/s 26 of the Act, interim order for maintenance and education of the minor children can be made in the pending divorce petition filed u/s 13 of the Act. Consequently, minor son and minor daughter of the parties are also entitled to maintenance pendente lite to be paid to their mother i.e. petitioner, with whom they are residing.

Counsel for the petitioner contended that respondent-husband has been paying instalments of Rs. 12,331/- per month towards repayment of loan, as depicted by account statement (Annexure P-1), and therefore, income of the husband is much more than Rs. 10,000/- per month, as assessed by the trial court. There is considerable merit in the contention. Account statement (Annexure P-1) depicts that the husband has been paying Rs. 12,331/- per month towards repayment of loan. Even otherwise, the Court cannot be oblivious of the fact that income from business is ordinarily under-stated in income tax return. Court has also to keep in mind while assessing the quantum of compensation that both the minor children are school-going. Provision for their educational expenses besides maintenance has to be made. Sky rocketing prices of daily needs also cannot be ignored. However, at the same time, income of the husband-respondent also has to be kept in mind to determine the quantum of interim maintenance. Balance has to be struck between the needs of the petitioner and the minor children and income of the husband.

Keeping in view the aforesaid, I am of the considered opinion that ends of justice would be met if interim maintenance of Rs. 4,000/- per month for the wife and Rs. 1,500/- per month each for the two minor children i.e. total amount of Rs. 7,000/- per month is awarded from the date of filing of application in the trial court. It is ordered accordingly. With the above modification in the impugned order, the instant revision petition stands disposed of accordingly.