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2023 Supreme(Raj) 1734

IN THE HIGH COURT OF RAJASTHAN AT JAIPUR BENCH
ASHOK KUMAR GAUR, ASHUTOSH KUMAR, JJ.
Smt. Sunita Chaudhary - Appellant
Versus
Manoj Kumar - Respondent
D.B. Civil Miscellaneous Appeal No.5316 of 2018
Decided on : 22-02-2023

Advocates:
Advocate Appeared:
For the Appellant :Mr. M.S. Saharan, Advocate.
For the Respondent:Mr. R.N. Mathur, Senior Advocate assisted by Mrs. Aradhana Swami, Advocate, Mr. Kunal Kant Rawat, Advocate.

Headnote:(A) Hindu Marriage Act, 1955 - Section 24 - Maintenance pendente lite - Applicant-wife entitled to maintenance during appeal period - Applicant-wife labeled as non-earning, unable to support herself, requiring support for herself and child - Previous maintenance orders and respondent-husband's financial status evaluated. (Paras 21-25, 33, 35, 37)

(B) Legal principles of maintenance - Dependent spouse not to be reduced to destitution; quantification based on reasonable needs and financial capacity of the husband. (Paras 24-30)

Facts of the case:
The applicant challenges the Family Court's divorce decree and seeks maintenance, asserting the respondent-husband's obligation to support her and their son. The applicant presented evidence of financial needs and challenged the husband's claim of insufficient income.

Findings of Court:
The court grants Rs.50,000/- per month maintenance to the applicant-wife and son, directing payment under specified conditions following evaluation of incomes and liabilities.

Issues: The court addressed whether the applicant has sufficient independent income for maintenance and assessed the financial obligations of the respondent-husband.

Ratio Decidendi: The court emphasized that qualifications do not imply income sufficiency, and established that interim maintenance must prevent the applicant from falling into hardship.

Result: Application for maintenance allowed, directing the husband to pay total of Rs.50,000/- per month.

Table of Content
1. filing of appeal challenging divorce decree. (Para 1 , 2)
2. context of maintenance due to husband's retirement. (Para 3 , 4 , 5 , 6)
3. applicant's financial claims and expenses. (Para 7 , 8 , 9 , 10 , 11 , 12 , 13)
4. husband's counterarguments against maintenance. (Para 14 , 15 , 16 , 17 , 18)
5. court's responsibility in assessing maintenance. (Para 20 , 21 , 22 , 23)
6. legal standards for maintenance as established by apex court. (Para 24 , 25 , 26 , 27)
7. rejection of husband's claims regarding income sufficiency. (Para 29 , 30 , 31 , 32 , 33)
8. child's entitlement to maintenance. (Para 35 , 37)
9. final order of maintenance quantification. (Para 38)

JUDGMENT :

Ashok Kumar Gaur, J. - The present order will dispose of D.B. Civil Misc. Application No.01/2022 dated 04.05.2022, filed under section 24 of the HINDU MARRIAGE ACT , 1955 (hereafter 'the Act of 1955') for granting maintenance pendente lite to the applicant/appellant(wife).

2. Learned counsel for the applicant Mr.M.S. Saharan has submitted that the present D.B. Civil Misc. Appeal No.5316/2018 has been filed by the applicant-wife challenging the judgment and decree dated 08.10.2018 passed by the Family Court No.1, Jaipur, whereby the Family Court has accepted the application filed by the respondent-Husband under Section 13(ia) and 13(ib) of the Act of 1955 and decree of divorce has been passed in favour of the respondent-husband, dissolving the marriage solemnized between the applicant-wife and respondent-husband dated 01.12.1999.

3. Learned counsel for the applicant-wife submitted that the respondent-husband is an Army Officer and he was paying monthly maintenance allowance to the applicant and on account of seeking voluntary retirement from service of Army, the respondent has not paid the maintenance during pendency of the present appeal.

4. Learned counsel for the applicant submitted that initially an order dated 01.11.2012, was passed by the Army Authorities, whereby sanction was granted for deduction of 10% per month from the pay and allowance of the respondent husband, in view of the provisions contained in section 90(i) of the ARMY ACT , 1950 read with Rule 193 of ARMY RULES , 1954.

5. Learned counsel for the applicant submitted that another order dated 20.07.2013 was passed by the Army Authorities whereby sanction was accorded for deduction of 25% per month from the pay and allowance of the respondent-husband and payment was to be made to the applicant-wife with effect from 16.01.2013 and bifurcation was made of total 25%, whereby the applicant-wife was sanctioned 19.5% and son of the applicant and respondent, Master Siddhant was sanctioned 5.5%.

6. Learned counsel further submitted that the requisite affidavit of the applicant has been filed with the present application, as has been directed by the Apex Court in the case of Rajnesh v. Neha & Anr. reported in [2021 (1) WLC (SC) Cri. 1: (2021)2 SCC 324].

7. Learned counsel submitted that the applicant is neither working nor earning anything to support herself. Learned counsel submitted that the applicant is also giving her complete time for shaping up the future of their son, who is a student and plea is raised that the respondent-husband is under a legal obligation to maintain the applicant and their son and as such, prayer is made to deposit the maintenance amount in the applicant's Bank account, as was done earlier and arrears of maintenance are also claimed by the applicant.

8. Learned counsel for the applicant has drawn attention of this Court towards the affidavit filed by the applicant relating to assets and liabilities of the respondent.

9. This Court deems it proper to quote para 7 of the affidavit relating to general monthly expenses of the applicant claimed by her, which reads as follows:-

House Rent

Rs.17,000

House maintenance

Rs.5,000

Electricity

Rs.4,000

Food & essential things

Rs.20,000

Transport

Rs.9,000

Clothin

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