Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2023 Supreme(Pat) 436

IN THE HIGH COURT OF JUDICATURE AT PATNA
Sunil Dutta Mishra, J.
Mukesh Kumar Son of Late Paras Nath Prasad - Petitioner
Versus
Suman Kumari, Wife of Mukesh Kumar - Respondent
Civil Miscellaneous Jurisdiction No.1422 of 2018
Decided On : 19-01-2023

Advocates:
Advocate Appeared:
For the Petitioner: Mr. Praveen Kumar
For the Respondent: Mr. Gopal Krishna

The main legal point established in the judgment is the need to consider the income of the parties and the paying capacity of the non-applicant when deciding the quantum of interim maintenance under Section 24 of the Hindu Marriage Act.

Headnote:
Interim Maintenance - Matrimonial Case - Section 24 of the Hindu Marriage Act - [Section 24] - The court discussed the provisions of Section 24 of the Hindu Marriage Act, which provides for support to be given by the earning spouse in favor of the non-earning spouse during the pendency of the proceeding before the Court. The court emphasized the need to consider the income of the parties and the paying capacity of the non-applicant when deciding the quantum of interim maintenance. It also highlighted the objective of Section 24, which is to provide financial assistance to the indigent spouse to maintain themselves during the proceedings and to have sufficient funds to defend the litigation. The court referred to general guidelines and directions provided by the Hon’ble Supreme Court in Rajnesh Vs. Neha & Anr. (2021)2 SCC 324 for deciding a maintenance application, and also cited the Bombay H.C. case Ritula Sngh Vs. Rajeshwar Singh 2010 (4) Mah. L.J. 797 to distinguish the scope of Section 24 and 25 of the Act.
Fact of the Case:

The petitioner filed for divorce under Section 13 of the Hindu Marriage Act. The respondent-wife filed an application for interim maintenance and litigation expenses, stating her inability to maintain herself and her two minor children. The court directed the petitioner to pay interim maintenance of Rs. 15,000/-per month, which the petitioner challenged.
Finding of the Court:

The court found that the respondent-wife had no sufficient independent income for her support and emphasized the need to consider the income of the parties and the paying capacity of the non-applicant when deciding the quantum of interim maintenance. The court reduced the amount of interim maintenance to Rs. 8,000/-per month.
Issues: The issues revolved around the quantum of interim maintenance to be paid by the petitioner to the respondent-wife and the principles to be considered under Section 24 of the Hindu Marriage Act.
Ratio Decidendi: The court's decision was based on the provisions of Section 24 of the Hindu Marriage Act, the objective of providing financial assistance to the indigent spouse, and the need to consider the income of the parties and the paying capacity of the non-applicant when deciding the quantum of interim maintenance.
Final Decision: The court modified the amount of interim maintenance granted in the impugned order to Rs. 8,000/-per month instead of Rs. 15,000/-from the date of the order.

JUDGMENT :

1. This Civil Misc. Application has been filed by the petitioner for setting aside the order dated 09.05.2018 passed by learned Principal Judge, Family Court, Bhojpur at Ara, in Matrimonial Case No. 361 of 2017 whereby the petitioner has been directed to pay interim maintenance of Rs. 15,000/-per month for his wife/ respondent and two minor children.

2. It appears from the record that the marriage between the petitioner and respondent was solemnised on 07.12.2012 as per Hindu rites and customs and out of their wedlock, two children have been born. Due to the reasons stated in petition, the petitioner filed divorce case bearing Matrimonial (Divorce) Case No. 36 of 2017 under Section 13 of the Hindu Marriage Act. The respondent-wife vide application dated 13.04.2018 filed an application for interim maintenance and litigation expenses stating that she has no source of income and is unable to maintain herself and her two minor children and the plaintiff is in government service and have much immovable property and he has income of Rs. 95,000/-per month. The learned Court below directed the petitioner to pay Rs.30,000/-as cost of litigation and vide impugned order petitioner has been directed to pay Rs.15,000/-per month as interim maintenance.

3. Heard learned counsel for the parties.

4. Learned counsel for the petitioner has submitted that petitioner, who is untrained Niyojit Teacher at Rana Pratap High School-cum-Inter College, Rampur Kala, Saran at Chapra has been receiving salary of Rs.18,395/-per month. A copy of salary certificate dated 27.04.2018 of the concerned college has been filed showing total salary Rs.14,288/-p.m. only. It is further submitted that petitioner was not given any opportunity of hearing and the learned Court below fixed the quantum of interim maintenance on the statement of petitioner, without any proof in its support and the same is excessive and unreasonable which requires interference by this Court. It is also submitted that presently petitioner is not working as teacher in the said school. Learned counsel for the respondent has submitted that the petitioner-husband failed to file reply of the petition of respondent u/s 24 of Hindu Marriage Act despite given proper opportunity to the petitioner-husband and the Court after considering the facts and circumstances has passed the impugned order which is justified.

5. It is admitted by the petitioner in the present petition that he has been receiving his salary of Rs.18,395/-per month. He has not disclosed other source of income. As per the copy of certificate issued by the school authority filed by the petitioner on record shows monthly salary of Rs.14,288/- p.m.

6. Provision of Section 24 of the Hindu Marriage Act provides for support to be given by the earning spouse in favour of non-earning spouse during the pendency of the proceeding before the Court. If the wife has no sufficient independent income for her support, she can claim maintenance pendente lite. The Court is required to take into consideration the income of the parties before deciding the quantum of interim maintenance. The Court has to keep in view the need of the applicant and paying capacity of the non-applicant.

7. The object behind Section 24 is to provide financial assistance to the indigent spouse to maintain herself (or himself) during the pendency of the proceedings and also to have sufficient funds to defend or carry on the litigation so that the spouse does not unduly suffer in the conduct of the case for want of funds. Section 24 contemplates a summary enquiry and warrant expeditious disposal. In the matter of granting maintenance pendente lite, the Court exercises a wide discretion but this discretion is not to be exercised arbitrarily. Section 24 does not lay down any rigid rule of fixing quantum of maintenance. It will depend upon various factors including the ability of spouse to earn, means and conduct of spouse etc.

8. The onus is on husband to establish with necessary

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