Himachal Pradesh High Court
Sh. Vikas Chauhan vs Smt.Ambika Chauhan on 22 November, 2016
Author: Sanjay Karol
Bench: Sanjay Karol
IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA
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CMPMO No. 450 of 2015
Date of Decision : November 22 , 2016
Sh. Vikas Chauhan ...Petitioner
of
Versus
Smt.Ambika Chauhan ...Respondent
Coram:
rt
The Hon'ble Mr. Justice Sanjay Karol, Judge.
Whether approved for reporting? No. 1
For the petitioner : Mr. B. M. Chauhan, Advocate, for the
petitioner.
For the respondent : Ms. Vandana Misra, Advocate, for the
respondent.
Sanjay Karol, J. (Oral)
Parties were made aware of their right of having the matter adjudicated by way of an alternate dispute redressal mechanism, so provided under law. In fact, rather it is unfortunate, that despite efforts put in by Mr. G. D. Whether reporters of Local Papers may be allowed to see the judgment?
::: Downloaded on - 15/04/2017 21:36:09 :::HCHP 2Verma, learned Senior Advocate of this Court, a trained mediator, parties could not understand the importance and .
significance, as also the efficacy, of such a mechanism of not only putting the entire controversy, inter se them, but also their child, to rest for all times, but ending all litigation(s) pending before different fora or which are likely of to arise in the near future.
2. Ambika Chauhan (wife), who was married to rt Vikas Chauhan (husband) on 17.4.2009, gave birth to son, Viraj on 1.2.2010. The parties could not reside together which led to the wife leaving the matrimonial house, reside with her parents. It is a matter of record that the son is being looked after and brought up by the wife, is presently undertaking his studies at a famous Convent School i.e. St. Edwards, Shimla.
3. Sometime in October, 2014, wife filed a petition for divorce, which came to be resisted by the husband, inter alia, on the ground of constructive desertion. During the pendency of such proceedings, in an application, so filed by the wife, seeking maintenance pendente lite as also litigation expenses, the Court below, in terms of impugned ::: Downloaded on - 15/04/2017 21:36:09 :::HCHP 3 order dated 21.7.2015, passed in CMP No. 413-S/6 of 2014, titled as Ambika Chauhan vs. Vikas Chauhan, has awarded a .
sum of `8000/- per month as maintenance pendente lite and `10,000/- as litigation expenses, correctness whereof, is subject matter of present petition so filed by the husband under Article 227 of the Constitution of India.
of
4. Having heard learned counsel for the parties as also perused the record, Court is of the considered view that rt no ground for interference is made out by the present petitioner/husband. The order of grant of maintenance pendente lite, cannot be said to be illegal, erroneous or perverse.
5. Petitioner, a registered Class-A Contractor, was gainfully employed. Also his father, with whom he resides, is an orchardist. The Court below assessed the income of the husband to be `6 lacs per annum, from all sources. It is contended that such finding is without any basis. Such contention though appears to be correct, but however, the fact of the matter being, that at some point in time, petitioner was registered as a Class-A Contractor. Also his family owns agricultural land and earnings from horticulture ::: Downloaded on - 15/04/2017 21:36:09 :::HCHP 4 produce is not meager. Orally this Court was informed that on an average 1500 to 2000 boxes of apple produce are .
being harvested annually, which by any standard, particularly when such land is situate at Kotgarh, fetches highest market value.
6. One cannot ignore the fact that wife is left alone of to fend for herself, as also her son. She has no source of income. Hence husband is under an obligation to maintain rt his wife at least, to the extent determined by the Court below.
7. The extent to which a wife is entitled to be maintained, now stands judicially settled. The standard to which the wife has been living hitherto, having left the matrimonial house, is one of the basic parameters required to be kept in mind. [Jasbir Kaur Sehgal (Smt) vs. District Judge, Dehradun & others, (1997) 7 SCC 7]
8. The apex Court in Rajesh Burman vs. Mitul Chatterjee (Burman), (2009) 1 SCC 398 has observed that:
"(27) The Courts below also considered some of the decisions cited before them. In Pradeep Kumar Kapoor Vs. Ms. Shailja Kapoor, AIR 1989 (Del) 10, the High Court of Delhi interpreted 'maintenance' and ::: Downloaded on - 15/04/2017 21:36:09 :::HCHP 5 'support' under section 24 of the Hindu Marriage Act, 1955 and observed:
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"9. Under section 24 of the Act, the Court has to see if the applicant who may either be wife or husband has no independent income sufficient for her or his support and the necessary expenses of the proceeding, and then award expenses of the proceeding and of such sum every month, having regard to the applicant's own income and the income of the respondent which may seem to the Court to be rt reasonable. This section may be contrasted with section 25 of the Act which deals with permanent alimony and maintenance. Under section 25, the Court may order the respondent to pay to the applicant for her or his maintenance and support, till her or his lifetime, either a lump sum amount or such monthly or periodical sum, having regard to the respondent's own income and other property, if any, and the income and other property of the applicant, the conduct of the parties and other circumstances of the case, which the Court might deem just. It may be noticed that heading of section 24 of the Act is 'Maintenance pendente lite and expenses of proceedings'. The section, however, does not use the word "maintenance", but, to me, it appears that the words "support" and "maintenance" are synonymous, "Support" means "to provide money for a person to live ::: Downloaded on - 15/04/2017 21:36:09 :::HCHP 6 on", like "he supports a family" or "he supports his old mother." Maintenance is "an act of .
maintaining", i.e. to support with money. For example, "he is too poor to maintain his family". It may be useful at this stage to refer to the definition of "maintenance" as given in the Hindu Adoptions and Maintenance Act, 1956 (for short 'the Act of 1956'). Under of section 3 of that Act, "maintenance" includes-
(i) in all cases, provision for food, clothing, residence, education and medical attendance rt and treatment; (ii) in the case of an unmarried daughter also the reasonable expenses of and incident to her marriage. I would, therefore, think that when we talk of maintenance and support, the definition of "maintenance" as given in the Act of 1956 should be adopted.
Section 18 of the Act of 1956 also refers to maintenance of wife and gives the circumstances under which a Hindu wife is entitled to live separately from her husband without forfeiting her claim to maintenance."
(emphasis in original) (28) In Atul Sashikant Mude Vs. Niranjana Atul Mude, AIR 1998 Bom 234, the Court considered the provisions of the Hindu Adoptions and Maintenance Act, 1956 and held that a Court is empowered to pass interim and ad interim orders of maintenance. It was held that the inclusive definition of the 'maintenance' under the Act would include food, ::: Downloaded on - 15/04/2017 21:36:09 :::HCHP 7 clothing, residence, education, medical attendance and treatment.
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(29) In R. Suresh Vs. Smt. Chandra, AIR 2003 (Kant) 183, a similar question arose before the High Court of Karnataka. Construing the word 'support' in section 24 of the Hindu Marriage Act, 1955, the Court held that the word 'support' occurring in the said section can be given the same meaning attributed to of the word 'maintenance' as defined in section 3 of the Hindu Adoptions and Maintenance Act, 1956 which would include provisions for food, clothing, rt residence, treatment."
education, medical attendance and
9. In the instant case, parties are well educated.
Husband hails from a good and wealthy background. Hence amount of `8000/-, so awarded by the Court below, cannot be said to be disproportionately high. For all the aforesaid reasons, present petition, devoid of any merit is dismissed.
10. Parties are directed to appear before the trial Court on 12.12.2016. Record be immediately sent back.
Pending application(s), if any, also stands disposed of accordingly.
(Sanjay Karol), Judge.
November 22 , 2016 (PK) ::: Downloaded on - 15/04/2017 21:36:09 :::HCHP