1. The writ petition comes up against the order passed by the Family Court under Section 24 of the Hindu Marriage Act granting maintenance to the petitioner wife of Rs.10,000/- per month vide order dated 4.1.2016.
2. The case of the petitioner is that she moved an application under Section 24 of the Hindu Marriage Act, 1955, in the petition filed by the husband for seeking divorce on 30.9.2014 claiming maintenance pendente lite. The amount of Rs.3 Lakhs per month was demanded, as it is her case that the respondent is drawing more than Rs. 3 Lakhs per month. It is her submission that she is living alone with her son aged seven years, who is suffering from congenital heart disease. The amount granted by the Family Court is to meager and has been ordered to be paid only from the date of order and not from the date of application. On both the counts, the order deserves to be modified.
3. It is submitted that the husband of the petitioner ousted her from her matrimonial home where she was living even during the pendency of the divorce petition till 9.12.2014 and since then, she is living with her mother, who is getting family pension. She admits that she is a qualified doctor in Preventive Medicine but she is not earning and not doing practice.
4. Counsel for the petitioner has relied on law laid down by the Apex Court in Jasbir Kaur Sehgal (Smt) vs. District Judge, Dehradun & Ors . (1997) 7 SCC 7, Neeta Rakesh Jain vs. Rakesh Jeetmal Jain (2010) 12 SCC 242, Jaiminiben Hirenbhai Vyas & Anr. vs. Hirenbhai Rameshchandra Vyas (2015) 2 SCC 385, wherein, Supreme Court has laid down that the amount should be paid from the date of application and the amount should be paid from the salary of the husband and atleast 25% of the salary being drawn by the husband should be released in favour of wife during the pendency of the litigation before the concerned court.
5. Per contra, counsel for the respondents submits that the amount mentioned by the petitioner as salary being drawn by the respondent is shown as enhanced and actually the respondent was drawing only Rs.78,000/- per month but since 2016, on account of this matrimonial dispute, respondent husband is not doing any work. He states that he is ready to pay Rs.10,000/- per month to his wife and actually her wife was living separately from him since 2010 and he was taking care and paying for all her dues till he filed divorce petition before the Family Court on account of cruelty and desertion. It is his case that the petitioner wife is a doctor and she is capable of earning atleast Rs.1 Lakh per month. It is further submitted that an order was passed under Section 125 Cr.P.C. by court at Agra as maintenance of an amount of Rs.35,000/- per month, which has been challenged by him before High Court at Allahabad and as per directions of the Allahabad High Court, he has paid an interim amount of Rs.1,50,000/- to the petitioner. It is also stated that under the Domestic Violence Act, 2005, an amount of Rs.15,000/- has been assessed but the same was challenged and has been set aside now. In support of his contention, the counsel for the respondents has relied upon the judgments in the cases of Rupali Gupta vs. Rajat Gupta, MAT.APP.(F.C.) 143/ 2014, Anusha Tripathi vs. Tejasvee Shashtri 2013 (41) RCR (Civil) 193.
6. This Court vide order dated 12.10.2017 had noted that as on today, no maintenance is being paid to the petitioner or her child.
7. Taking into consideration the bank account statements, which has been placed on record by the petitioner as Annexure-2, I find that in the year 2014, the husband of the petitioner was drawing handsome salary of more than Rs.2 Lakhs per monmth. Similarly, in the copy of Income Tax Return, filed by petitioner along with her rejoinder, respondent has shown his income as Rs.10,80,000/- between April, 2001 and June, 2011, which comes to around more than Rs.3 Lakhs per month.
8. While it is true that the petitioner is also capable of earning, the responsibility of husband towards his wife and child cannot be side lined. The judgment cited by the respondents of various high courts have been considered by me and the view taken by the Supreme Court in the judgments (supra) reveal that Supreme Court has principally opined that husband is required to be maintained his wife and son during the pendency of the proceedings before the Family Court and even otherwise unless there is an allegation which puts such an embargo as required under the law. The ground on which husband seeks divorce, i.e. cruelty and desertion, are yet to be proved.
9. In Manish Jain vs. Akanksha Jain, 2017 AIR (SC) 1640, 2017 (4) SCALE 152, it was held as under:-
"14. Section 24 of the HM Act empowers the Court in any proceeding under the Act, if it appears to the Court that either the wife or the husband, as the case may be, has no independent income sufficient for her to his support and the necessary expenses of the proceeding, it may, on the application of any one of them order the other party to pay to the petitioner the expenses of the proceeding and monthly maintenance as may seem to be reasonable during the proceeding, having regard to also the income of both the applicant and the respondent. Heading of Section 24 of the Act is "Maintenance pendente lite and expenses of proceedings". The Section, however, does not use the word "maintenance"; but the word "support" can be interpreted to mean as Section 24 is intended to provide for maintenance pendente lite.
15. An order for maintenance pendente lite or for costs of proceedings is conditional on the circumstance that the wife or husband who makes a claim for the same has no independent income sufficient for her or his support or to meet the necessary expenses of the proceeding. It is no answer to a claim of maintenance that the wife is educated and could support herself. Likewise, the financial position of the wife''s parents is also immaterial. The Court must take into consideration the status of the parties and the capacity of the spouse to pay maintenance and whether the applicant has any independent income sufficient for her or his support. Maintenance is always dependent upon factual situation; the Court should, therefore, mould the claim for maintenance determining the quantum based on various factors brought before the Court."10. Keeping in view the aforesaid, this Court is of the view that the petitioner is entitled for maintenance pendente lite and for the said purpose, this Court taking into consideration the income being drawn by the respondent husband and the monthly needs of wife and child, assess monthly maintenance of Rs.25,000/- to petitioner wife and Rs.10,000/- for her child, taking into consideration the present price index and cost of living for an urban family. The amount of arrears shall be released to the wife from the date she filed writ petition i.e. 6.4.2016. While the amount as fixed by the Family Court of Rs.10,000/- per month shall be paid from the date of application moved before the Family Court i.e. 30.9.2014 up to date of filing of the present writ petition.
11. The arrears shall be paid by the husband in equal six monthly installments of the total amount. While immediate amount from today shall be paid from this month onwards.
12. With these directions, the present petition is disposed of.
