Allahabad High Court
Smt. Hema Srivastava vs Arvind Kumar Srivastava And Ors. on 7 January, 2020
Equivalent citations: AIRONLINE 2020 ALL 638
Bench: Anil Kumar, Saurabh Lavania
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
Court No. - 3
Case :- FIRST APPEAL No. - 25 of 2016
Appellant :- Smt. Hema Srivastava
Respondent :- Arvind Kumar Srivastava And Ors.
Counsel for Appellant :- Satish Chandra Srivastava,Manoj Kumar Jaiswal,Shishir Chandra Srivastav
Hon'ble Anil Kumar,J.
Hon'ble Saurabh Lavania,J.
Inspite of service of notice, no one is present on behalf of the respondent.
Heard, Sri Satish Chandra Srivastava, learned Counsel for the appellant.
Learned Counsel for the appellant submitted that marriage between appellant Smt. Hema Srivastava and Sri Arvind Kumar Srivastava was solemnized in the year 2010 as per Hindu Rights and Rituals. After sometime the matrimonial relation between the appellant and respondent became strained and the appellant left her matrimonial home and went to her parental home and living with her father.
Learned Counsel for the appellant further submitted that thereafter the respondent Sri Arvind Kumar-Srivastava filed a petition under Section 9 of Hindu Marriage Act 1955 (in short "Act of 1955") for restitution of conjugal rights bearing Case No. 1689 of 2010 (Arvind Kumar Srivastava Vs. Smt. Hema Srivastava) before the Additional Principal Judge/A.D.J. Family Court, Lucknow. Thereafter, the appellant filed an application under Section 24 of the Act of 1955 for maintenance registered as Misc. Case No. 382C/2010 (Smt. Hema Srivastava Vs. Arvind Kumar Srivastava). In the said application, the appellant prayed for a sum of Rs. 10,000/- per month towards maintenance, Rs. 7,000/- lump sum towards expenses of the proceedings and a sum of Rs. 150/- towards travelling expenses for attending the case. On 7.4.2014, the learned Additional Principal Judge/A.D.J. Family Court, Lucknow, partly allowed the application moved by the appellant and directed the respondent to pay a lump sum amount of Rs. 10,000/- to the appellant towards expense of the proceedings within one month.
Assailing the order dated 7.4.2014, the appellant filed an appeal before this Court bearing First Appeal No. 49 of 2014 (Smt. Hema Srivastava Vs. Arvind Kumar Srivastava) and the said appeal was allowed vide order dated 9.3.2015 and the order dated 7.4.2014 passed by the learned Additional Principal Judge, Family Court, Luckow was set aside and the matter was remanded back to the Additional Principal Judge, Family Court, Lucknow. Thereafter, on 08.02.2016 the Additional Principal Judge, Family Court, Lucknow has reconsider the matter and partly allowed the application bearing Misc. Case No. 382C/2010 (Smt. Hema Srivastava Vs. Arvind Kumar Srivastava) and directed the respondent to pay a lump sum amount of Rs. 10,000/- to the appellant towards expense of the proceedings within one month.
Learned Counsel for the appellant further submitted that the court below without justification and reason has held that the appellant has completed a diploma course in Beauty Parlour and she is earning sufficient amount per month and the respondent/husband is an unemployed person and he is getting Rs. 1,000/- as "Berojgari Batha" and accordingly not entitled to maintenance. Learned Counsel for the appellant submitted that the said findings given by the court below are based on unproved documents, which were placed before the court below by the respondent/husband as paper no. C-19/1 to C-19/32. No affidavit was filed before the court below with regard to the documents filed by the respondent as paper no. C-19/1 to C-19/32. The arguments were heard on 02.02.2016 and on that date paper no. C-19/1 to C-19/32 were not on record and were subsequently filed and considered by the court below, without giving opportunity of rebuttal to the appellant, in the judgment under appeal.
Learned Counsel for the appellant submitted that the order dated 08.02.2016 is totally illegal, contrary to the material on record and not in accordance with law.
We have considered the submissions made by the learned Counsel for the appellant and perused the records.
We find that in paragraph 3 of application filed under Section 24 of the Act of 1955, filed by the appellant, it is stated that she is a graduate and she has no independent source of income and in paragraph 4 of the said application she has stated that her husband Sri Arvind Kumar Srivastava is a Computer Engineer and he is doing computer business and he is earning Rs. 25,000/- to 30,000/- per month.
The respondent in his objection has stated that appellant is holding a diploma in Beauty Parlour Course and she is running a business of beauty parlour from her parental house and from which she is earning Rs. 35,000/- per month, the relevant portion of paragraph 3 reads as under:-
";g fd izkfFkZuh }kjk nkf[ky 'kiFk i= dh /kkjk 3 vlR; o vLohdkj gS lR;rk ;g gS fd izkfFkZuh C;wVhikyZj esa fMIyksek fd, gs,, 'kknh ls iwoZ izkfFkZuh C;wVh ikyZj dk O;olk; vius ek;ds esa djus ds lkFk lkFk C;wVh ikyZj Vªsafux dh f'k{kk Hkh ns jgh gS ftlls izkfFkZuh oSokfgd lekjksg esa iw.kZ Bsdk ysdj cM+s iSekus ij J`axkj lkexzh dks cspus dk lkFk&lkFk O;olk; dj jgh gS ftlls izkfFkZuh dh vk; yxHkx :i;k 35]000@& izfrekg gSA izkfFkZuh Lo;a gh 'kiFkh ds lkFk ugha jguk pkgrh gSA 'kiFkh us izkfFkZuh dh fonkbZ gsrq eqdnek ekuuh; U;k;ky; ds le{k nkf[ky fd;k FkkA izkfFkZuh us 'kiFkh ds Åij ngst mRihM+u] ?kjsyw fgalk] v0/kkjk&125 lh0vkj0ih0lh0 dk eqdnek nkf[ky dj j[kk gS ftlesa izkfFkZuh dks foi{kh ekuuh; U;k;ky; }kjk fu;r dh x;h /kujkf'k Hkj.k&iks"k.k gsrq vnk djrk pyk vk jgk gSA"
In rebuttal, in paragraph 7 of the reply of objection filed by the respondent, the appellant has vehemently denied the said averment made by the respondent. The paragraph 7 reads as under:-
";g fd foi{kh ds vkifRr 'kiFk i= ds iSjk 3 esa O;Dr dFku iw.kZr;k vlR; gS] fujk/kkj gS] vr,o vLohdkj gSA bl lUnHkZ esa vfrfjDr dFku ds :i esa bl 'kiFk i= dk mijksDr iSjk 4 dk voyksdu djus dh d`ik djsaA"
We also find from the record of the court below, available before this court, and the judgment in issue in the present appeal that the arguments were heard by the court below on 02.02.2016 and the judgment and order under appeal, was passed on 08.02.2016 and in between i.e. on 06.02.2016 the documents i.e. paper no. C-19/1 to C-19/32 were filed before the court below by the respondent and opportunity of rebuttal was not given to the appellant and same were considered by the court below while passing the judgment and order dated 08.02.2016.
It also appears from the judgment and order dated 08.02.2016, under appeal, that the denial of appellant made by her in paragraph 7 of the reply filed in response to objection of the respondent to the application of the appellant under Section 24 of the Act of 1955 has not been considered by the court below in correct perspective.
In view of the same, we are of the opinion that the court below erred in law in partly allowing the application of appellant under Section 24 of Hindu Marriage Act, 1955 vide judgment and order dated 08.02.2016.
The Division Bench of this Court in the case of Smt. Veena Panda alias Seema Panda Versus Devendra Kumar Panda reported in 2006 (24) LCD 677 observed as under:-
"7. The following case laws have been relied upon by the learned counsel for appellant:--
I.Baby Rashmi Mehra V. Sunil Mehra, AIR 1991 Delhi 44.
In this case it was held that no rigid formula about percentage of income can be fixed for giving maintenance. The quantum depends upon the status and income of the parties. The leading case of privy council, Ekradeshwari Vs. Homeshwar reported in AIR 1929 privy council 128 was also referred to in this case wherein it was observed that maintenance depends upon a gathering together of all the facts and the situation, amount of free estate, the past life of the married parties and the family and survey of the members, on reasonable view of change of circumstances, possibly required in future, regard having of course be given to the scale and mode of living and the age, habits and wants and class of life of the parties. Our Hon'ble Supreme Court in the case of Kulbhushan Vs. Raj Kumari reported in AIR 1971 Hon'ble Supreme Court 234 expressed its agreement with the aforesaid observation of the privy council. In this case it was also observed by the single Judge of Delhi High Court that in one case the maintenance may be 25% while in another it may be 50% or even less or more. The quantum depends upon the position of status of the parties including financial position of the defendant and the reasonable demands of the claimant or any other factor. There can be no quarrel with the principle laid down in these cases.
II.Dev Dutt Singh V. Rajani Gandhi, 1984 (1) DMC Delhi 212.
In this case it was held that if the husband is living in his own house the wife is also entitled to accommodation in the same house or in a separate building. There can be no dispute in respect of this principle also.
III.Dinesh Giju Bhai Mehta V. Smt Usha Dinesh Mehta, 1979-M L R 209 Bombay- (DB).
In this case the Division Bench of the Bombay High Court held that rule 1/5 of net income of husband is unreasonable because wife and husband are equally partners.
IV.Kalaben Kalabhai Desai V. Alabhai Karamshibhai Desai, 2000(2) Femi Juris 337.
The Hon'ble Single Judge held in this case that normal rules applied is to award 1/3rd of income of husband to wife and child from the date of application under Section 24 of the Hindu Marriage Act.
V.S.S. Bindra V. Tarvindra Karu, AIR 2004 Delhi 442.
In this case the learned single Judge opined that net income of the husband may be divided equally between family members with one extra portion/share being allotted to earning spouse.
VI.Chandrikaben Chhanalal Patel V. Rameshchandra Chandilal Patel, 1986 (1) DMC Gujarat 232.
The learned Single Judge observed that contribution towards provident fund or payment of installments towards loan cannot be deducted from the total earning while fixing maintenance under Section 125 CrPC.
VII.Dharmi Chandra V. Smt Sobha Devi AIR 1987 Rajasthan 159.
It was held that general rule is that wife should not be relegated to a lower standard of living than that which the husband enjoys.
VIII. Shivani Chattopadhyaya V. Siddnath Chattopadhyaya, 2001 AII CJ (S.C) 174.
In this case the Hon'ble Supreme Court while determining the interim maintenance under Section 125 CrPC for wife and child granted 6000/- Rupees as interim maintenance. In this case the husband was D.I.G. and there was dispute in respect of his entire income.
IX.Rekha Deepak Malhotra V. Deepak Jagmohan Malhotra, AIR 1999 Bombay 291.
In this case allegations were made by wife against adulterous husband and of cruelty which was not condoled by wife. The plea that wife left matrimonial home voluntarily was not found tenable and, therefore, wife was held to be entitled for maintenance. Keeping in view the provisions of Section 18 of the Hindu Adoption and Maintenance Act in respect of quantum it was held that it should aid the wife to live in a similar style as she enjoyed in the matrimonial home.
X.Smt. Renu Jain V. Mahabir Prasad Jain, AIR 1987 Delhi 43.
In this case it was laid down that the wife and child are entitled to live according to the status of the husband.
XI.Smt. Tarun Batra V. S.R.Batra, AIR 2005 Delhi 270.
According to the facts of this case on further deterioration of relations and on becoming difficult to stay in matrimonial house the wife shifted to her parent's residence. Subsequently she was denied entry to her matrimonial house by the respondents which was not found proper because she has a right to stay in her matrimonial house. More so when her husband applied for divorce, the respondents cannot deny her access to her matrimonial home or interfere in her possession thereof.
XII.Basudeb Dey Sarkar V. Smt. Chhaya Dey Sarkar, AIR 1991 Calcutta 399.
In this case also it was held that where matrimonial dispute is pending between the spouses, the wife is not a licensee or trespasser. Her right to reside there continues till it is terminated in matrimonial proceedings.
XIII.Smt. Gurmeet Kaur V. Gur Raj Singh, AIR 1989 Punjab & Haryana 223.
In this case the learned Additional District Judge, Amritsar declined maintenance to wife and minor son observing that it would quietly nudge her towards taking a less harsh view of her husband's behaviour towards her. It was held by the learned single Judge that it amounted to refusal of maintenance pendente lite and expenses of litigation to the wife and her minor child to pressurise the wife to reconcile her differences with her husband and, therefore, it has to be branded as a patent misuse of the provisions of Section 24 of the Hindu Marriage Act.
XIV.Radhikabai V. Sadhu Awatrai, AIR 1970 Madhya Pradesh 14.
In this case the Division Bench held that merely because a potential capacity to earn something is found in the wife, the Court cannot refuse to grant her maintenance. It was further held that Section 24 of the Hindu Marriage Act does not envisage that customary ornaments may be taken into account for the purpose of income nor can the Court refuse maintenance on the ground that wife can pull on for some time by selling her ornaments.
XV.Pratima Singh V. Dr. Abhimanyu Singh Parihar, 1986 (1) DMC 301 M.P. In this case the Hon'ble single Judge modified the order passed by the trial court and awarded the pendente lite maintenance at the rate of 50% of the income of the husband, after deducting the amount for uncertainties.
XVI.Savita Aggarwal V. R.C. Aggarwal, 1991(1) DMC 18 (P&H).
According to ratio of this case even if the entire salary is deposited as contribution towards General Provident Fund etc. that will not deprive the petitioner of her right to get maintenance pendente lite.
XVII.Smt. Krishna Kumari V. IV ADJ Hamirpur, AIR 1989 Allahabad 198.
The Hon'ble single Judge of our own High Court in this case has held that the appellate court must be slow and cautious in granting demand in the case under Section 24, 28 of the Hindu Marriage Act. In this particular case the order of trial court was not found to be callous or capricious. Therefore, it was held that the appellate court in such cases must not interfere in the order of the trial court.
XVIII.Harmindra Kaur V. Sukhwinder Kaur, 2002(2) Femi Juris CC 292 Delhi.
This case law also deals with maintenance to wife and child under Section 125 Cr.P.C. The income of the husband was found to be Rs.12,000/- per month and considering the equal status of the wife who was to live with the child the amounts of Rs.4800/- for wife and Rs.2400/- for the child were awarded by dividing the income of the husband in 5 units, two units each for adults and one unit for the child.
XIX.Ruma Chakraborty V. Sudha Rani Banerjee, 2005 (36)A I C 398 (SC).
The Hon'ble apex Court while dealing with the matter in Hindu Adoption and Maintenance Act held that the intention of the legislature by including clothing, residence etc. was to provide for real maintenance and not a bare or starving maintenance.
XX.Pradeep Kumar Kapoor V. Ms. Shailja Kapoor, AIR 1989 Delhi 10.
While defining ''maintenance' and ''support' under Section 24 of the Hindu Marriage Act it was laid down that the definition of ''maintenance' as given in Hindu Adoption and Maintenance Act should be adopted. It was held that in deciding the application under Section 24 of the Act the Court has to act in accordance with sound judicial principles and cannot act in an arbitrary manner to the prejudice of either of the parties.
8. The following principles were found to be relevant for the purpose:--
(1)Position and status of the parties.
(2)Reasonable wants of the claimant towards food, clothing, shelter, medical attendance with treatment, education and the like.
(3)Income of the claimant.
(4)Income of the opposite party.
(5)Number of persons the opposite party is obliged to maintain.
9. As a corollary the following point was also added:--
In arriving at the income of a party only involuntary deductions like income tax, provident fund contribution etc. are to be excluded.
In this case law the following case laws were also considered:--
(i)Ashit Mukherjee V. Smt. Susmita Mukherjee, AIR 1987 Calcutta 153
(ii)L.R.Rajendran V. Gajalakshmi, AIR 1985 Madras 195
(iii)Rajambal V. Murugappan, AIR 1985 Madras 284
(iv)Dev Dutt Singh V. Rajni Gandhi, AIR 1984 Delhi 320
(v)Preeti V. Ravind Kr. Sharma, AIR 1979 Allahabad 29
(vi)Baboolal V. Prem Lata, AIR 1974 Rajasthan 93 XXI.Shakti Pershad V. Ratna Pershad, 2003 (1) HLR 491.
In this case it was held that the wife is entitled to maintenance according to the status of her husband.
10.The gamut of all the aforesaid case laws is that as long as matrimonial ties subsists between the parties, the wife is entitled to live in the matrimonial house or in a separate building. The wife should not be relegated to a lower standard of living than that the husband enjoys. She should be given maintenance according to status of her husband. While considering the question of ''maintenance pendente lite' under Section 24 of the Hindu Marriage Act its definition as given in Hindu Adoption and Maintenance Act should be adopted and some significant points should necessarily be taken into account such as (i) position and status of the parties, (ii) reasonable wants of the claimant towards food, clothing, shelter and medical attendance etc., (iii) income of the respondent, (iv) income, if any, of the claimant, (v) number of persons the respondent is obliged to maintain. As regards quantum of maintenance it may be from 1/3rd to 50% of the income of the respondent but no rigid formula can be fixed. It may differ from case to case. The contributions towards General Provident Fund and payment towards instalments of loan etc. should not be permitted to be deducted to work out the carry home salary. The maintenance should not be refused on the ground that the wife can pull on for some time by selling her ornaments etc."
The Hon'ble Apex Court in the case of Shailja and another Versus Khobbanna reported in (2018) 12 SCC 199 observed as under:-
"4. We are not satisfied with the order passed by the High Court considering the income of the respondent husband, which we have been told, is more than Rs. 80,000/- per month since the respondent husband is a Senior Lecturer in a college. It is stated by the learned counsel for the appellants that the respondent husband is also the owner of 26 acres of irrigated land.
5. That apart, we find that the High Curt has proceeded on the basis that appellant I was capable of earning and that is one of the reasons for reducing the maintenance granted to her by the Family Court. Whether Appellant 1 is capable of earning or whether she is actually earning are two different requirements. Merely because Appellant 1 is capable of earning is not, in our opinion, sufficient reason to reduce the maintenance awarded by the Family Court.
Thus, taking into consideration the above said position of law on the point in issue and reasons given by us, we also feel it appropriate to have a glance to the provisions as provided under Section 24 of Hindu Marriage Act, 1955, which reads as under:-
"24. Maintenance pendente lite and expenses of proceedings.-
Where in any proceeding under the 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."
From the perusal of Section 24 of Hindu Marriage Act, 1955 and the aforesaid settled principles the position which emerges out to the effect that while considering the issue of maintenance the court below should consider the income of the applicant and the income of the respondent and thereafter, as it deems fit, the court should award the reasonable maintenance.
Thus, keeping in view of the above said facts including the reasons recorded by us and taking into consideration the law laid down by the Division Bench of this Court as well as by the Hon'ble Apex Court and the provisions as provided under Section 24 of Hindu Marriage Act, 1955, we feel it appropriate that matter shall be remanded back to the learned Additional Principal Judge, Family Court, Lucknow with direction to decide Misc. Case No. 382C of 2010, under Section 24 of Hindu Marriage Act, preferred by the appellant on 23.11.2010, strictly in accordance with law, by a speaking and reasoned order. The said exercise be done expeditiously.
Accordingly, the appeal is allowed in above terms and the judgment and order dated 08.02.2016 is set aside.
Office is directed to send back the lower court's record.
(Saurabh Lavania,J.) (Anil Kumar,J.) Order Date :- 07.01.2020 Jyoti/-