Maintenance pendentelite can be awarded to minor children under Section 30 of the Hindu Marriage Act, and the financial capacity of both spouses should be considered in determining the award.

1. 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 others versus Rajeev Kumar Koul.

2. Dr. Jyotsana Koul (respondent No. 1 herein), filed a petition under Section 13 of the Hindu Marriage Act, 1980 (for short hereinafter referred to as the ˜Act) for divorce on the ground of desertion. Alongwith it, she also filed an application under Section 30 of the Act for grant of maintenance pendentelite 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 stated that the respondent No. 1 used to spent 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 pendentelite. The appellant contested the petition and raised number of objections by pleading that as the respondent No. 1 has already filed a petition under Section 488 Cr.P.C. which is still subjudice, the petition under Section 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.

3. 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.

4. The learned Matrimonial Court, after appreciating the evidence, awarded Rs. 6,000/- per month as maintenance pendentelite to respondents Nos. 2 and 3 who are the minor children, i.e., the son and daughter of the parties. However, the claim for pendentelite 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.

5. Mr. Sunil Sethi, learned counsel for the appellant submitted that the learned Matrimonial Court, has erred in awarding the pendentelite maintenance in favour of the petitioners Nos. 2 and 3, i.e., minor children under Section 30 of the Act. He submitted that under Section 30 of the Act, maintenance pendentelite cannot be awarded in favour of the children. Mr. Sunil Sethi, learned counsel for the appellant submitted that under section 30 of the Act, maintenance pendentelite 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 pendentelite in favour of the children or either of spouse. He submitted that if the children have no sufficient income to maintain

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