Andhra Pradesh High Court - Amravati
D Jagadish Babu vs D Sujatha on 19 July, 2019
THE HON'BLE SRI JUSTICE M.SEETHARAMA MURTI
Civil Revision Petition Nos.439 & 735 of 2019
COMMON ORDER:
The revision petitioners, who are husband and wife, filed these two respective revisions against an order, dated 22.01.2019, of the learned Principal Senior Civil Judge, Tenali, passed in IA.no.77 of 2018 in HMOP.no.33 of 2017.
1.1 The husband's revision petition is CRP.no.439 of 2019. The wife filed the other revision having been aggrieved of the quantum of interim maintenance awarded to her @ Rs.1,500/- per month from the date of filing of the aforesaid HMOP till the date of its disposal.
2. I have heard the submissions of the learned counsel appearing for the parties.
3. The parties in this common order shall hereinafter be referred to as they are arraigned in the HMOP for convenience and clarity.
4. The introductory facts, in brief, are as follows: "The petitioner - husband filed the HMOP before the trial Court under Section 13(1)(ia)&(ib) of the Hindu Marriage Act, 1955, for granting a decree of divorce dissolving the marriage between the parties solemnized on 06.06.2003. In the said HMOP, the respondent - wife filed the present IA under Section 24 of the Act requesting to grant interim maintenance @ Rs.10,000/- per month from the date of desertion, that is, 19.06.2014, and pass such other orders as the Court deemed fit. The said petition was resisted by the petitioner - husband. On merits and by the order impugned in these revisions, the trial Court partly allowed the petition of the wife and granted interim maintenance at the rate of Rs.1,500/- per month from the date of filing of the HMOP till the date of its MSRM, J C.R.P.nos.439 & 735_2019 2 disposal. Aggrieved of the said orders, as already noted, both the parties filed these revisions."
5. Learned counsel for the husband contended as follows: - 'The relationship is not in dispute. The wife filed several proceedings against the husband. She filed a domestic violence case in DVC.no.27 of 2014. On the dismissal of the same, on 21.11.2017, by the learned II Additional Judicial Magistrate of First Class, Tenali, she filed CRP.no.496 of 2017 on the file of XI Additional District Court, Tenali. The same is pending. Two school going children, who are aged 13 & 8 years as on today, are under the care and custody of the husband. He is educating them. They are presently studying in a residential school. She also filed MC.no.26 of 2015 on the file of I Additional Judicial Magistrate of First Class, Tenali. The said MC was resisted by him on various grounds. The said MC was disposed of by the learned I Additional Judicial Magistrate of First Class, Tenali, by an order, dated 22.02.2018, awarding maintenance @ Rs.2,500/- per month from the date of the said order and a direction was given to the husband to pay maintenance of every month on or before the 10th of the succeeding month. Costs of Rs.1,000/- were also awarded to the wife. A direction was also given to the wife to open a savings bank account and intimate the number of the same to the husband to facilitate depositing of monthly maintenance into the said account of the wife. The husband is regularly paying the said maintenance. The present order was passed, on 22.01.2019, subsequent to the orders in the Maintenance Case [MC]. Thus, the wife, having claimed maintenance in the MC is further claiming interim maintenance in the matrimonial proceeding. She is not entitled to claim maintenance twice by obtaining orders in different proceedings on the files of different Courts. The amount awarded in the MC towards maintenance is adjustable against the amount awarded in the matrimonial proceeding and maintenance cannot be granted over and above the maintenance granted in the MC. The said legal position is enunciated in the decision of the Supreme MSRM, J C.R.P.nos.439 & 735_2019 3 Court in Sudeep Choudhary v. Radha Choudhary [AIR 1999 SC 536]. In the said decision, the Supreme Court held as follows: - 'The amount awarded under Section 125 of the Cr.P.C for maintenance was adjustable against the amount awarded in the matrimonial proceedings and was not to be given over and above the same.' In the decision in Sangeeta v. State of Jharkhand [AIR 2018 JHARKHAND 57] Jharkhand High Court held that the wife who is getting a maintenance of Rs.5,000/-as per an interim order passed in MC under Section 125 of CrPC cannot again claim interim alimony under Section 24 of the Hindu Marriage Act. The wife in the instant case is a Hindi Pandit. She worked earlier. She is capable of working and earning; but, she is intentionally sitting idle. The interim maintenance application is filed to harass the husband. Hence, the husband's revision may be allowed and the order granting interim maintenance in the HMOP by the Court below may be set aside as the wife is awarded adequate maintenance in the MC, after taking into consideration all the aspects including the fact that the husband is drawing Rs.40,000/- per month as a software engineer and is also taking care of the children and educating them by keeping them in a residential school.'
6. Per contra, learned counsel for the wife contended as follows: - 'The learned I Additional Judicial Magistrate of First Class, Tenali, passed orders, on 22.02.2018, in MC awarding a maintenance of Rs.2,500/- per month from the date of the order and not from the date of the petition. The said amount of maintenance is a meagre amount. It is not sufficient by any standards for maintenance of the wife. Admittedly, the wife is presently a house wife and is not an earning member. Nevertheless, the Court below in the matrimonial proceedings, while considering the request for interim maintenance awarded interim maintenance of Rs.1,500/- per month from the date of the institution of the matrimonial proceeding by the husband. Even that amount of interim maintenance is a meagre amount. Even if both the said amounts are to be added up, the total amount of monthly maintenance payable to the wife by the MSRM, J C.R.P.nos.439 & 735_2019 4 husband works out to Rs.4,000/-. In the present day cost of living a woman like the wife in the present case requires a minimum of Rs.10,000/- per month for her maintenance which includes food, shelter and clothing. The wife must also be in a position to meet medical and other incidental expenses from out of the amount of the maintenance awarded. Since the interim maintenance awarded is not sufficient for her sustenance even after taking into consideration the amount of maintenance awarded in the MC, the wife is aggrieved of the order of the Court below. The Court below ought to have awarded adequate sum of interim maintenance to the wife by taking into consideration her contention that the husband is a software engineer and is earning Rs.1.00 lakh per month and also the fact that she had already spent huge amounts on several litigations. The husband filed a petition for restitution of conjugal rights in FRMC.4584 of 2014 on the file of learned Principal Judge, Family Court, Bangalore. The wife was constrained to approach the Supreme Court for transfer of that case to a Court at Guntur. She engaged a senior advocate and spent lot of money. Ultimately her request was considered and the said proceeding was transferred from the Court at Bangalore to the Family Court at Guntur. Later, the husband has withdrawn the said proceeding and is prosecuting the present HMOP filed for divorce. The Court below ought to have taken into consideration the huge expenses incurred by the wife on various litigations and ought to have fixed an adequate amount towards interim maintenance. Hence, the impugned order insofar as fixing the quantum of interim maintenance @ Rs.1,500/- per month may be set aside and interim maintenance may be awarded as prayed for @ Rs.10,000/- per month. Otherwise it would be very difficult for the wife to sustain and defend the matrimonial proceeding filed by the husband.' MSRM, J C.R.P.nos.439 & 735_2019 5
7. I have given earnest consideration to the facts and submissions.
8. From the facts and submissions, the following facts are discernable: -
The relationship between the parties as man and wife is admitted. They are having two children presently aged 13 & 8 years and that the children are in the custody of the husband and that the husband is maintaining and taking care of them and is educating them by keeping them in a residential school is also admitted. The wife was awarded maintenance by an order, dated 22.02.2018, in MC.no.26 of 2015 on the file of I Additional Judicial Magistrate of First Class, Tenali, at the rate of Rs.2,500/- from the date of the said order.
By the impugned order, the wife was awarded interim maintenance at the rate of Rs.1,500/- per month from the date of institution of matrimonial proceeding and pending its final disposal. Thus, the total maintenance amount awarded to the wife works out to Rs.4,000/- per month. The law is well settled that the maintenance has to be awarded keeping in view the social status and economic & living conditions of the family; and, the maintenance awarded to the wife must be sufficient to enable her to live in reasonable comfort.
9. In this backdrop, the wife contends that the amount of interim maintenance awarded @ Rs.1,500/- per month even after taking into consideration the maintenance amount awarded @ Rs.2,500/- per month in the MC, is a meager amount and is not sufficient in the present day cost of living for her sustenance and that as per settled legal position, the maintenance amount awarded must be sufficient to meet reasonable expenses towards food, shelter and clothing and that the wife is also required to meet medical and other incidental expenses from the maintenance amount awarded and that, therefore, by any standards, the interim maintenance awarded is a paltry MSRM, J C.R.P.nos.439 & 735_2019 6 amount and hence, she is entitled to interim maintenance at the rate of Rs.10,000/- per month.
10. Per contra, learned counsel for the husband having relied upon the legal position enunciated in the precedents cited above contends that the wife is entitled to only maintenance awarded in MC at the rate of Rs.2,500/- per month and that she is not entitled to any maintenance or interim maintenance over and above the said amount and, therefore, the impugned order is liable to be set aside.
11. The wife on one hand contends that the husband is not regularly paying maintenance awarded in the MC whereas the husband contends that he is regularly paying. However, if there are any arrears of maintenance payable by the husband as per the order in the MC, it is for the wife to pursue the remedies, which the law permits, and it is not for this Court to go into the said aspect having regard to the subject matter of the present revisions.
12. Dealing first with the question as to whether the wife is entitled to interim maintenance, it is to be noted that as on today the wife is not a working member though according to the husband she is a Hindi Pandit and is capable of working and earning to make a living on her own. In the MC, maintenance @ Rs.2,500/- per month is awarded to the wife from the date of the order. However, by the present impugned order, the maintenance awarded to the wife @ Rs.1,500/- per month is only an interim maintenance and the said interim maintenance was awarded from the date of institution of the matrimonial proceeding till its disposal. Therefore, it is not a permanent maintenance or alimony. The obligation of the husband to pay the same to the wife comes to an end once the matrimonial proceeding stands disposed of. Therefore, it cannot be termed as a permanent alimony or permanent maintenance casting a financial burden on the husband till the lifetime of either of the spouses.
MSRM, J C.R.P.nos.439 & 735_2019 7
13. Now, it is profitable to refer to the decision of the Supreme Court in Manish Jain v. Akanksha Jain [AIR 2017 SC 1640] wherein it was held as follows:
"14. Section 24 of the HM Act empowers the Court in any proceeding under the Act, if 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 proceeding, it may, on the application of any one of them order the other party to pay to the Petitioner the expenses of the proceeding and monthly maintenance as may seem to be reasonable during the proceeding, having regard to also the income of both the applicant and the Respondent. 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 the word "support" can be interpreted to mean as Section 24 is intended to provide for maintenance pendente lite.
15 . An order for maintenance pendente lite or for costs of the proceedings is conditional on the circumstance that the wife or husband who makes a claim for the same has no independent income sufficient for her or his support or to meet the necessary expenses of the proceeding. It is no answer to a claim of maintenance that the wife is educated and could support herself. Likewise, the financial position of the wife's parents is also immaterial. The Court must take into consideration the status of the parties and the capacity of the spouse to pay maintenance and whether the applicant has any independent income sufficient for her or his support. Maintenance is always dependent upon factual situation; the Court should, therefore, mould the claim for maintenance determining the quantum based on various factors brought before the Court."
14. Having given such earnest consideration to the facts and the legal position obtaining, this Court is of the opinion that the husband's contentions that no interim maintenance ought to have been awarded by the Court below and that the maintenance awarded in the MC is adjustable against the interim maintenance awarded in the matrimonial proceeding and that the wife is not MSRM, J C.R.P.nos.439 & 735_2019 8 entitled to the interim maintenance awarded in the matrimonial proceedings cannot be countenanced. As already noted, the maintenance awarded in the matrimonial proceeding is not a permanent alimony and it is only an interim maintenance.
15. Now dealing with the further questions, as to whether the interim maintenance awarded is inadequate; and, if so, whether the same requires upward revision; and whether the wife is entitled to interim maintenance @ Rs.10,000/- per month, what is to be noted is that it is borne out by record that the wife in the written arguments filed before the Court below stated that her husband is a software engineer at Bangalore and is getting a monthly income of Rs.40,000/- per month. Further, the husband is taking care of the two young boys, that is, the children of the parties, and is meeting their maintenance and educational expenses by educating them in a residential school. Therefore, he must be incurring reasonably good expenditure on the upkeep of the children. Further, the wife is already awarded maintenance @ Rs.2,500/- per month in the MC. By the impugned order she was awarded interim maintenance @ Rs.1,500/- per month. Further, she was also awarded legal expenses in a sum of Rs.5,000/-, by an order, dated 22.01.2019, passed in IA.no.76 of 2018, which is the subject mater of another CRP.no.631 of 2019 between the parties. Today, this Court by a separate order disposed of the said revision and enhanced the legal expenses awardable to the wife to Rs.12,000/- in all and awarded the said sum to the wife accordingly. Therefore, this Court, on wholesome consideration of the facts and circumstances of the case, is of the considered view that the upward revision of the interim maintenance awarded to the wife is not warranted.
16. Viewed thus, this Court finds that both the revision petitions are liable for dismissal.
MSRM, J C.R.P.nos.439 & 735_2019 9
17. In the result, the Civil Revision Petitions are dismissed confirming the order impugned. There shall be no order as to costs. Miscellaneous petitions pending, if any, shall also stand dismissed.
_____________________ M. SEETHARAMA MURTI, J 19.07.2019 Vjl MSRM, J C.R.P.nos.439 & 735_2019 10 THE HON'BLE SRI JUSTICE M.SEETHARAMA MURTI Civil Revision Petition Nos.439 & 735 of 2019 19.07.2019 Vjl