Uttarakhand High Court
Krishna Kumar vs Smt Rajnish on 13 July, 2017
Bench: Rajiv Sharma, Sharad Kumar Sharma
IN THE HIGH COURT OF UTTARAKHAND
AT NAINITAL
Appeal from order No. 425 of 2016
Krishna Kumar S/o Ratan Lal .....Appellant
Versus
Smt. Rajnish W/o Krishna Kumar ...... Respondent.
Present:
Mr. I.P.Gairola, Advocate for the appellant.
Mr. D.C.S. Rawat, Advocate for the respondent.
Reserved Judgment
JUDGMENT
Coram: Hon'ble Rajiv Sharma, J.
Hon'ble Sharad Kumar Sharma, J.
Reserved on 04.07.2017 Decided on :13 .07.2017 Per Hon'ble Sharad Kumar Sharma, J.
Brief facts of the case are that the appellant alleging grounds of desertion at the hands of the respondent, wife had filed a petition under Section 9 of Hindu Marriage Act, seeking dissolution of marriage.
2. As per the plaint case the appellant contended that both appellant as well as the respondent were major at the time of marriage, they married as per the Hindu rites and ritual on 22.11.2009 at Dehradun.
23. Out of their wedlock, a daughter was born on 03.03.2011. According to the appellant after the marriage they lived together at Gurgaon and cohabitated there as the appellant was engaged there in a private job. After sometime, some discord and misunderstandings amongst husband and wife took place and parties to marriage declined matrimonial obligation and the proceedings under Section 9 of the Hindu Marriage Act was instituted.
4. The appellant in the present appeal started developing petty grounds and on account of minor confrontations. Because, the respondent started visiting her parents home every now and then, which became an issue of concern for the husband, as he did not appreciated wife's leaving his residential house and meet her parents without prior permission of his.
5. Another ground which was taken by the husband for restitution of conjugal rights, was that the appellant who is the plaintiff, before the Court below was deprived of his rites of cohabitation, as the defendant/respondent had expressed her unwillingness to have any sexual access with the plaintiff/appellant.
6. Proceeding under Section 9 has been instituted by the appellant for restitution of conjugal rites because there has been a desertion and restraint for settled matrimonial obligation.
7. In the proceeding under Section 9 for restitution of conjugal rites the respondent filed application under Section 24 of the Hindu Marriage Act seeking maintenance and to 3 meet day today necessities for litigation. Basically, the claim of the respondent in her application under Section 24 was that she is not having an independent source of earning, coupled with the fact that she has to spend her life and was depend upon her parents for her survival, as she has to sustain herself, hence she prayed that a maintenance at the rate of Rs. 35,000/- per month from the date of the application i.e. 16.03.2016, may be awarded to her alongwith the litigation expenses to the tune of Rs. 25,000/- consolidated.
8. In her application, she contended that she has a daughter whose care is to be taken by her and since she is a school going girl, she requires sufficient money to meet the expenditure towards her education.
9. The application was opposed by the appellant wherein he has stated that the contents of the application and its basis is not bona fide for the reasons, that he claimed to be sending the maintenance to respondent at the rate of Rs. 4,000/- per month regularly through online transfer into her account. He stated that the said payment is being made into the account of his wife/respondent consistently, however, the account statement has not been brought on record by the appellant.
10. On the application under Section 24 filed by the respondent before the court below, the appellant filed his objection alleging thereto that the application under Section 24 was based upon the wrong facts. His case before the court below was that he is continuously taking care of the family and in particular the daughter as he is providing all the maintenance for her, which includes the fees payable to the school, clothing and medicines. He further denied although 4 not relevant for the purposes of present case that there had been any demand of dowry by him or his family members nor on that pretext there had been any physical injuries caused to wife. Thus, according to the appellant, she has deserted and started residing separately voluntarily on her own with her parents. According to the appellant, he submitted that since the respondent-wife is qualified and she has done her B.Ed, it would be deemed she has the capacity to work and earn her own livelihood.
11. But the fact remains that by the plea, she being qualified in itself show that she was having a source of earning to maintain herself in view of the provisions contained under Section 24 of the Hindu Marriage Act.
12. According to the appellant, there was no necessity to consider the application under Section 24 of the Hindu Marriage Act. Because wife has filed an application under Section 12, of the Protection of Women from Domestic Violence Act, 2005 before the A.C.J.M 2nd, Dehradun, wherein maintenance of Rs. 4000/- per month has been granted.
13. At this stage, this Court feels that grant of an interim maintenance under Domestic Violence Act, it has got no nexus with the grant of maintenance in the cases under Section 24 of the Hindu Marriage Act, as both run independent to one another.
14. Apart from it, it is wife's case that despite of there being direction by the court under Section 12, of the Protection of Women from Domestic Violence Act, the 5 amount as directed has not been remitted by the husband. The appellant came up before the court below that the wife is working and she is a Nursery School Teacher in a School called as Green Hills Public School, Dehradun and since she is a trained Primary School Teacher and employed, no maintenance is required to be granted and her application deserves to be rejected.
15. The husband has utterly failed to place any evidence on record to show the engagement of the respondent and the amount of earning which she is having from the said engagement.
16. The Family Court after considering the claims and counter claims had passed the impugned order on 13.07.2016 whereby the learned Family Court allowed the application under Section 24 of the Hindu Marriage Act, and partially awarded the maintenance under Hindu Marriage Act. The said order is under challenge in the present Appeal, wherein the following relief has been sought:-
"The relief sought by way of present special appeal is that to allow the present appeal, to set aside the impugned order dated 13.07.2016 passed by learned Principal Judge, Family Court, Dehradun in Misc. application filed by respondent/opposite party under Section 24 of Hindu Marriage Act in Original Suit No. 137 of 2016 " Krishna Kumar vs. Smt. Rajnish" filed under Section 9 of Hindu Marriage Act."
17. With the consent of the parties and taking into consideration the fact that the mediation between the parties has failed, as it has been as reported by the Mediator on 11.01.2017, this Court feels that the Appeal itself is to be adjudicated at the earliest. Because the challenge is to the interlocutory order in a pending proceeding under Section 13 of the Hindu Marriage Act, registered as Suit No. 137 of 2016 6 " Shri Krishna Kumar vs. Smt Rajnish" which is yet to be decided on merits by the court below. The order under challenge by the appellant is to be an interlocutory order in which the rights between the parties are not been determined.
18. Heard Mr. I.P.Gairola, learned counsel for the appellant and Mr. D.C.S. Rawat, learned counsel for the respondent, both of them requested for the decision of the Appeal today itself. With the consent of learned counsel for the parties the appeal is admitted and it is simultaneously taken up for arguments on merits.
19. Learned counsel for the appellant tried to impress upon the court that the quantum of maintenance granted qua the liability of the respondent is on higher side. He further tried to persuade the Court that looking to the manner in which the respondent had carried her domestic life after the marriage did not make it conducive for the Court to provide any financial assistance to her.
20. But, the fact remains that out of the marriage, a daughter Suhani was born on 03.03.2011, admittedly the proceedings of restitution of conjugal rights is pending. There is nothing on record to show anything contrary that the parties have shown any intention to sever the relationship of husband and wife, in such a situation where husband seeks a restitution of conjugal rights on the ground of wife declining to discharge her matrimonial obligations, since the proceedings under Section 9 of the Hindu Marriage Act, is one of the proceeding contemplated under the Hindu Marriage Act then obviously Section 24 of the Hindu Marriage Act for the grant of 7 maintenance automatically accrues subject to the conditions for the claim for maintainence.
21. The maintenance therefore has to be within the norms provided under Section 24 of the Hindu Marriage Act, a few admitted facts by the appellant. He admits marriage, he admits the birth of the daughter, he admits that the respondent is living with her parents and looking to the income which is accruing to the appellant as would be established from the pay slips submitted by the appellant he has shown that he is working in a private company called as IBM, and is getting an income Rs. 61,322/- to contend that the amount as awarded by court below is on the higher side. He had submitted that out of the total salary as settled by the company, in which he works, he receives only a sum of Rs. 51,080/- as cash in hand.
22. It is not in dispute that he is a father of a daughter who is now with the respondent, who has to be take care of all. Besides it, looking to the price escalation, and the unabated hardships to live to cope up with a basic necessities which a mother has to undertake to bring up the growing up child, particularly, a daughter, no fault could be found in the order impugned where the Court below has awarded a sum of Rs. 15,000/- per month looking to the monthly salary of appellant. The maintenance allowance towards the wife and the daughter seems to be just. The Court has also taken into consideration that the appellant who is working in a private company IBM has no other additional expenditure to meet except for his own maintenance. Looking to the aforesaid facts, the amount of money awarded which is to be paid by the appellant to the respondent-wife, while examining the provision under Section 8 24 of the Hindu Marriage Act is just and proper as it includes maintenance for the child also.
23. The husband has not been able to produce any evidence before the court below, rather he has not led any evidence to show that wife was earning except having upon the fact that she was educated lady. Having education and being qualified no such inference can be drawn that the wife is working and particularly, in the procedure before the court below where section 9 of the Hindu Marriage Act is to be decided. No such effort has been made by the appellant to denounce the genuineness of the claim of the maintenance as claimed by the respondent in the proceedings under Section 9 of Hindu Marriage Act nor there was any evidence filed to show that wife was employed and had independent income.
24. Apart from the above, counsel for the appellant has not been able to substantiate any illegality in the order, nor argued any other ground, hence the appeal fails and dismissed.
25. The Hindu Marriage Act is a social piece of legislation where the paramount consideration is that future of either of the spouses is secured and maintained. That is why the procedure contemplated under the Hindu Marriage Act under the legislation is not to prolonged the proceedings for an indefinite period. Since Section 24 of the Hindu Marriage Act has an application in a pending proceeding under Section 9 obviously the pendente lite maintenance would be maintained till the proceedings under Section 9 is pending.
26. Looking to the impact of provisions contain under Section 21B of Hindu Marriage Act, this Court feels that the 9 proceedings before the Court below registered as Suit No. 137 of 2016 " Shri Krishna Kumar vs. Smt Rajnish" be decided finally within a period of four month from today.
27. The appellant would ensure that in compliance of the impugned order under challenge he would remit the maintenance as directed by the impugned order from the date of the application, after payment of the arrear including it. Thus the application as filed by respondent is partially allowed and maintainance pendente lite granted by the family court is maintained, appeal fails and is dismissed. No order as to costs.
28. Family Court Dehradun is requested to decide Case No. 137 of 2016 Shri Krishna Kumar vs. Smt. Rajnish within the period of four months from the date of production of order independently without of being influenced by any observations made above.
29. Appeal is dismissed, impugned order granting pendente lite maintainance is affirmed, with a request to the court below to decide the proceedings under Section 9 within the four months from today.
(Sharad Kumar Sharma, J.) (Rajiv Sharma, J.) 13.07.2017 13.07.2017 Nahid 10