Rajeev Kumar Koul vs Dr. Jyotsana Koul and Others

Nirmal Singh, J.—This appeal is directed against the judgment and order dated 11-12-2003 passed by the learned Additional District

Judge, (Matrimonial Cases), Jammu in file No. 111 titled Dr. Jyotsana Koul and Ors. v. Rajeev Kumar Koul.

Dr. Jyotsana Koul (respondent No. 1 herein), filed a petition u/s 13 of the Hindu Marriage Act, 1980 (for short hereinafter referred to as the

'Act') for divorce on the ground of desertion. Along with it, she also filed an application u/s 30 of the Act for grant of maintenance pendente lite

and litigation expenses for herself and also for minor children. The respondent No. 1 had pleaded that from the wedlock two children namely Surja

Koul and Tushar Koul were born. They are residing with her in her parental house and are studying. It is staled that the respondent No. 1 used to

spend more than Rs. 15,000/-per month for maintaining herself and also Rs. 10,000/- per month on the education and maintenance of the minor

children. As such, the total expenditure which the respondent No. 1 incurring is Rs. 25,000/-per month. The income of respondent No. 1 is not

sufficient to maintain herself and bear the expenses of the minor children for their studies, for maintaining them and also she is unable to bear

litigation expenses, as she is a Doctor by profession and her earning is only Rs. 12,000/- per month. Whereas, the appellant is an Engineer who is

employed in a Company in United States of America and he is drawing more than rupees two lacs per month, besides that, he is getting more than

Rs. 50,000/- per month as rent of two houses which he owns and are situated at Delhi. The respondent No. 1 claimed Rs. 20,000/- per month as

maintenance pendente lite. The appellant contested the petition and raised number of objections by pleading that as the respondent No. 1 has

already filed a petition u/s 488 Cr.P.C. which is still subjudice, the petition u/s 30 of the Act is not maintainable as it amounts to parallel

proceedings. It was further pleaded by the appellant he is unemployed and is dependent on his family. Whereas respondent No. 1 is an employee

as a practicing Doctor and her earning is more than Rs. 20,000/- per month which is sufficient to maintain herself and to maintain minor children.

In support of her claim, respondent No. 1 had examined witnesses namely M.L. Koul, Pran Nath Handoo, Bansi Lal and she was also

appeared as her own witness. The appellant has not led any evidence to rebut the statement of respondent No. 1.

The learned Matrimonial Court, after appreciating the evidence, awarded Rs. 6,000/- per month as maintenance pendente lite to respondents

Nos. 2 and 3 who are the minor children, i.e. the son and daughter of the parties. However, the claim for pendente lite maintenance in respect of

petitioner No. 1, Dr. Jyotsana Koul was declined. The respondent No. 1 was also awarded the litigation expenses of Rs. 10,000/-, aggrieved by

which the present appeal has been preferred.

Mr. Sunil Sethi, learned Counsel for the appellant submitted that the learned Matrimonial Court, has erred in awarding the pendente lite

maintenance in favour of the petitioners Nos. 2 and 3, i.e. minor children u/s 30 of the Act. He submitted that u/s 30 of the Act, maintenance

pendente lite cannot be awarded in favour of the children. Mr. Sunil Sethi, learned Counsel for the appellant submitted that u/s 30 of the Act,

maintenance pendente lite and litigation expenses can be awarded either in favour of the wife or husband as the case may when it appears to the

Court that the husband or the wife has no independent source of income sufficient for her or his support and bear necessary expenses of the

proceedings on the application of the wife or the husband, but under this section, there is no provision to award the maintenance pen-dente lite in

favour of the children or either of spouse. He submitted that if the children have no sufficient income to maintain themselves, they can claim

maintenance from the husband or the wile as the case may be under the Jammu & Kashmir Hindu Adoptions and Maintenance Act, 1960 or by

filing a petition u/s 488 Cr.P.C. He further contended that the maintenance can only be awarded if either of the spouse has sufficient means to

support them, but he submitted that the appellant has no source of income to support the respondent No. 1 as he is dependent upon his brother

who is residing in United States of America and is also mentally sick. He contended that the brother of the appellant is maintaining him. He further

contended that the learned Matrimonial Court, has erred in awarding maintenance pendente lite in favour of the respondents without taking into

consideration that the appellant has no source of income to pay maintenance pendente lite and the litigation expenses.

I have given my thoughtful consideration to the submissions made by the learned Counsel for the appellant and also perused the record.

Before considering the contention of the counsel for the appellant, it may be appropriate to notice Sections 30 and 32 of the Act:

Section 30, 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

proceedings, 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.

Section 32 : Custody of children : In any proceeding under this Act, the Court may, from time to time, pass such interim orders and make such

provision in the decree as it may deem just and proper with respect to the custody, maintenance and education of minor children, consistently with

their wishes, wherever possible, and may, after the decree, upon application by petition for the purpose, make from time to time, all such orders

and provisions with respect to the custody, maintenance and education of such children as might have been made by such decree or interim orders

in case the proceeding for obtaining such decree were still pending, and the Court may also from time to time revoke, suspend or vary any such

orders and provisions previously made.

A Conjoint reading of Sections 30 and 32 of the Act makes it crystal clear that in any proceeding under this Act, the Court may, from time to

time, pass such interim orders and make such provision in the decree as it may deem just and proper with regard to the custody, maintenance and

education of minor children. The Court has also been given power to revoke, suspend or vary any such orders and provisions previously made

with regard to the maintenance and custody of the children. The words inserted u/s 13 ""in any proceeding"" also covered the proceedings u/s 13 of

the Act. Therefore, without filing a separate application by the children, the maintenance can be claimed in an application u/s 30 of the Act filed by

husband or the wife while the proceedings are pending, under the Act.

A Hon'ble Division Bench of Calcutta High Court, in case of Monoj Kr. Jaiswal Vs. Smt. Lila Jaiswal, held as under:

...the Court can grant the relief to the children also in exercise of its power u/s 26 wherever it considers it to be just and proper. The single Judge

decision of the Rajasthan High Court in Baboolal v. Prem Lata AIR 1974 Raj 93 is also to the same effect where in has been held (at 96) that if a

case is made out to that effect, interim maintenance can be granted to the minor children while considering an application u/s 24 by the wife even in

the absence of separate application u/s 26 of the Act. We are therefore, of the view that in granting maintenance to the minor daughter, while

disposing of and allowing the application u/s 24 by the wife, the learned Judge has not made any illegal assumption or illegal exercise of jurisdiction

to warrant our intervention in revision.

The Hon'ble Division Bench of the Karnataka High Court, in case of Subhasini Vs. B.R. Umakanth, held as under:

Where an application for maintenance was filed u/s 24 with an averment of the existence of minor child the Court could make an order awarding

maintenance pendente lite in respect of minor child as well as the applicant having regard to the provisions of Section 26.

Sections 24 and 26 of the Hindu Marriage Act of 1955 (Central) are corresponding to Sections 30 and 32 of the State Act, therefore, an

application filed by the wife u/s 24 for the grant of maintenance of the minor children is maintainable for maintaining herself, minor children and also

to bear expenses of their education. She has deposed in her statement that her husband has left her since 1996. She is living in her parental house

along with her minor children. She has no house and vehicle. Her daughter was studying in 9th Class in Convent School and son was studying in

Sender Public School in Class IInd and she is spending Rs. 10,000/- on the education of her daughter. In her statement she has given the details of

the expenses being incurred on the minor children. Her version has been fully corroborated by witnesses namely M.L. Koul, Pran Nath Handoo,

Bansi Lal.

To rebut the statement of respondent No. 1, the appellant has not led any evidence before the trial Court, but from the evidence of the

respondent No. 1, it has been proved that she is spending Rs. 25,000/-for maintaining herself and on the maintenance of the minor children and

also bearing the litigation expenses. Whereas, she has only income of Rs. 15,000/-.

Learned Counsel appearing for the appellant has pointed out that the appellant is dependent upon his brother who is in United States of

America. If the appellant is residing in America for the last ten years, then he must have been getting social security allowance as is awarded under

the United States Act. The contention raised by the learned Counsel for the appellant that he is mentally sick is not sustainable. The appellant used

to come to India as is clear from the affidavit sworn by him which has been filed by him in this appeal. If the appellant is mentally sick then he

should have filed this appeal through his next friend. The appellant has filed the appeal of his own and has signed the Power of Attorney and also

sworn the affidavit, but the appellant has not rebutted the evidence given by the respondent No. 1 that the appellant is earning Rs. 2 lacs per month

besides he is getting Rs. 50,000/- per month as a rent from two houses. Therefore, the appellant has sufficient means to pay the maintenance

pendente lite and the litigation expenses. The income of the respondent No. 1 is Rs. 15,000/- per month, but the maintenance is to be awarded

keeping in view the status of the party and the income of both the spouse. It has also come on the record that the son of the respondent No. 1 is

not keeping a good health and for that purpose an Auto has been engaged for Rs. 30/- per day. Due to Anal atresia the son has to use diaper and

ten diapers are being used in a day for which the monthly expenses come to Rs. 5000/-. On books, stationery and other items of school, the

expenditure comes to Rs. 25,000/-. The tuition fee of her son is Rs. 300/-. She also deposed that appellant has two houses in Delhi one of which

is A-10-11-C in Basant Vihar and second is B/ 768 Safdargung Enclave. The house in Basant Vihar is given on rent to USA embassy for which

the rent comes to Rs. 2.30 lacs per month to the appellant. The second house has also been given on rent and for which Rs. 50,000/- is the

monthly rent. She further deposed that the appellant is in USA and he is getting salary of rupees eight thousand dollars per month, as he is a Soft-

ware Engineer. He has also kept a car in India. Her version is corroborated by the witnesses namely M.L. Koul, Pran Nath Handoo and Bansi

Lal. The version given by the respondent No. 1 was not been rebutted by the appellant.

As the petitioner is not able to maintain the children, therefore, the learned Matrimonial Court has rightly observed that both father and mother

of the children are earning and the expenses of the children are to be borne by them. The maintenance is always awarded by keeping into mind the

status of the parties, i.e. husband and wife. The children are also to be awarded the maintenance as per the status of their father. Even in pleadings,

there is no specific denial that the appellant is not employed as Software Engineer in United States of America or he was not owning the houses in

India. So, taking into consideration all these aspects of the matter, the learned Matrimonial Court has rightly passed the order dated 11-12-2003

for maintenance pendente lite and litigation expenses. The learned Matrimonial Court has rightly held as under:

In this case both father and mother of the children are earning and the expenses on the children is to be borne by them. Petitioner i.e. mother of the

children is only incurring expenses on the maintenance of petitioners No. 2 and 3 and respondent being a father is also liable to pay the

maintenance to children.

For the reasons mentioned above, there is no merit in this appeal, and the same is dismissed with costs of Rs. 3000/-.