Jammu & Kashmir High Court
Rajeev Kumar Koul vs Rajeev Kumar Koul on 16 September, 2005
Author: Nirmal Singh
Bench: Nirmal Singh
HIGH COURT OF JAMMU AND KASHMIR AT JAMMU CIMA No. 30 OF 2004 Rajeev Kumar Koul Petitioner Dr.Jyotsana Koul & Ors Respondents ! Mr.S.Sethi, Advocate for the Appellant. ^ M/s M.K.Bhardwaj, Sr.Advocate alongwith Ajay Vaid for the Respondents. Coram Hon'ble Mr.Justice Nirmal Singh Dated : 16/09/2005 :JUDGMENT:
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 themselves, they can claim maintenance from the husband or the wife as the case may be under the Jammu and Kashmir Hindu Adoptions and Maintenance Act, 1960 or by filing a petition under Section 488 Cr.P.C. He further contended that the maintenance can only be awarded if either of the spouse has sufficient means to support them, but he submitted that the appellant has no source of income to support the respondent No.1 as he is dependent upon his brother who is residing in United States of America and is also mentally sick. He contended that the brother of the appellant is maintaining him. He further contended that the learned Matrimonial Court, has erred in awarding maintenance pendentelite in favour of the respondents without taking into consideration that the appellant has no source of income to pay maintenance pendentelite and the litigation expenses.
6. I have given my thoughtful consideration to the submissions made by the learned counsel for the appellant and also perused the record.
7. Before considering the contention of the counsel for the appellant, it may be appropriate to notice Section-30 and 32 of the Act: -
"Section-30. Maintenance pendentelite and expenses of proceedings: - Where in any proceeding under this Act it appears to the Court that either the wife or the husband, as the case may be, has no independent income sufficient for her or his support and the necessary expenses of the proceedings, it may, on the application of the wife or the husband, order the respondent to pay to the petitioner the expenses of the proceeding, and monthly during the proceeding such sum as, having regard to the petitioner's own income and the income of the respondent, it may seem to the Court to be reasonable."
"Section-32: - Custody of children: - In any proceeding under this Act, the court may, from time to time, pass such interim orders and make such provision in the decree as it may deem just and proper with respect to the custody, maintenance and education of minor children, consistently with their wishes, wherever possible, and may, after the decree, upon application by petition for the purpose, make from time to time, all such orders and provisions with respect to the custody, maintenance and education of such children as might have been made by such decree or interim orders in case the proceeding for obtaining such decree were still pending, and the court may also from time to time revoke, suspend or vary any such orders and provisions previously made."
8. A Conjoint reading of Section-30 and 32 of the Act makes it crystal clear that in any proceeding under this Act, the Court may, from time to time, pass such interim orders and make such provision in the decree as it may deem just and proper with regard to the custody, maintenance and education of minor children. The Court has also been given power to revoke, suspend or vary any such orders and provisions previously made with regard to the maintenance and custody of the children. The words inserted under Section 13 "in any proceeding" also covered the proceedings under Section 13 of the Act. Therefore, without filing a separate application by the children, the maintenance can be claimed in an application under section 30 of the Act filed by husband or the wife while the proceedings are pending under the Act.
9. A Hon'ble Division Bench of Calcutta High Court, in case of Manoj Kumar Jaiswal Vs. Lila Jaiswal, AIR 1987 Calcutta 230 held as under: -
" the Court can grant the relief to the children also in exercise of its power under S.26 wherever it considers it to be just and proper. The Single Judge decision of the Rajasthan High Court in Baboolal v. Prem Lata, AIR 1974 Raj 93 is also to the same effect where in has been held (at 96) that if a case is made out to that effect, interim maintenance can be granted to the minor children while considering an application under S.24 by the wife even in the absence of separate application under S.26 of the Act. We are therefore, of the view that in granting maintenance to the minor daughter, while disposing of and allowing the application under S.24 by the wife, the learned Judge has not made any illegal assumption or illegal exercise of jurisdiction to warrant our intervention in revision".
10. The Hon'ble Division Bench of the Karnataka High Court, in case of Smt. Subhasini versus B.R. Umakanth, AIR 1981 Karnataka 115, held as under: -
"Where an application for maintenance was filed under S.24 with an averment of the existence of minor child the Court could make an order awarding maintenance pendente lite in respect of minor child as well as the applicant having regard to the provisions of S.26."
11. Section-24 and 26 of the Hindu Marriage Act of 1955 (Central) are corresponding to sections 30 and 32 of the State Act, therefore, an application filed by the wife under section-24 for the grant of maintenance of the minor children is maintainable for maintaining herself, minor children and also to bear expenses of their education. She has deposed in her statement that her husband has left her since 1996. She is living in her parental house alongwith her minor children. She has no house and vehicle. Her daughter was studying in 9th Class in Convent School and son was studying in Sender Public School in Class IInd and she is spending Rs. 10,000/- on the education of her daughter. In her statement she has given the details of the expenses being incurred on the minor children. Her version has been fully corroborated by witnesses namely M.L. Koul, Pran Nath Handoo, Bansi Lal.
12. To rebut the statement of respondent No.1, the appellant has not led any evidence before the Trial Court, but from the evidence of the respondent No.1, it has been proved that she is spending Rs. 25,000/- for maintaining herself and on the maintenance of the minor children and also bearing the litigation expenses. Whereas, she has only income of Rs. 15,000/-
13. Learned counsel appearing for the appellant has pointed out that the appellant is dependent upon his brother who is in United States of America. If the appellant is residing in America for the last ten years, then he must have been getting social security allowance as is awarded under the United States Act. The contention raised by the learned counsel for the appellant that he is mentally sick is not sustainable. The appellant used to come to India as is clear from the affidavit sworn by him which has been filed by him in this appeal. If the appellant is mentally sick then he should have filed this appeal through his next friend. The appellant has filed the appeal of his own and has signed the Power of Attorney and also sworn the affidavit, but the appellant has not rebuttal the evidence given by the respondent No.1 that the appellant is earning Rs.2 lacs per month besides he is getting Rs. 50,000/- per month as a rent from two houses. Therefore, the appellant has sufficient means to pay the maintenance pendentelite and the litigation expenses. The income of the respondent No.1 is Rs. 15,000/- per month, but the maintenance is to be awarded keeping in view the status of the party and the income of both the spouse. It has also come on the record that the son of the respondent No.1 is not keeping a good health and for that purpose an Auto has been engaged for Rs.30/- per day. Due to Analatresia the son has to use diaper and ten diapers are being used in a day for which the monthly expenses come to Rs. 5000/-. On books, stationary and other items of school, the expenditure comes to Rs.25000/-. The tuition fee of her son is Rs.300/-. She also deposed that appellant has two houses in Delhi one of which is A-10-11-C in Basant Vihar and second is B/768 Safdargung Enclave. The house in Basant Vihar is given on rent to USA embassy for which the rent comes to Rs.2.30 lacs per month to the appellant. The second house has also been given on rent and for which Rs. 50000/- is the monthly rent. She further deposed that the appellant is in USA and he is getting salary of Rupees Eight thousand dollars per month, as he is a Soft ware Engineer. He has also kept a car in India. Her version is corroborated by the witnesses namely M.L. Koul, Pran Nath Handoo and Bansi Lal. The version given by the respondent No.1 was not been rebutted by the appellant.
14. As the petitioner is not able to maintain the children, therefore, the learned Matrimonial Court has rightly observed that both father and mother of the children are earning and the expenses of the children are to be borne by them. The maintenance is always awarded by keeping into mind the status of the parties, i.e., husband and wife. The children are also to be awarded the maintenance as per the status of their father. Even in pleadings, there is no specific denial that the appellant is not employed as Soft ware Engineer in United States of America or he was not owning the houses in India. So, taking into consideration all these aspects of the matter, the learned Matrimonial Court has rightly passed the order-dated 11.12.2003 for maintenance pendentelite and litigation expenses. The learned Matrimonial Court has rightly held as under: -
"In this case both father and mother of the children are earning and the expenses on the children is to be borne by them. Petitioner i.e. mother of the children is only incurring expenses on the maintenance of petitioners No.2 and 3 and respondent being a father is also liable to pay the maintenance to children."
15. For the reasons mentioned above, there is no merit in this appeal, and the same is dismissed with costs of Rs.3000/-.