Punjab-Haryana High Court
Yogesh Prabhakar vs Monika on 8 November, 2013
Author: Paramjeet Singh
Bench: Paramjeet Singh
-1-
Civil Revision No.1767 of 2013
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
Civil Revision No.1767 of 2013
Date of decision: 08.11.2013
Yogesh Prabhakar
....Petitioner
Versus
Monika
....Respondent
CORAM: HON'BLE MR. JUSTICE PARAMJEET SINGH
1) Whether Reporters of the local papers may be allowed to see
the judgment ?
2) To be referred to the Reporters or not ?
3) Whether the judgment should be reported in the Digest ?
Argued by: -
Mr. Yogesh Prabhakar, petitioner in person.
Mr. B.R. Rana, Advocate, for the respondent.
*****
PARAMJEET SINGH, J.
Arguments in this case were heard on 30.10.2013 and the case was posted for today for orders.
Instant revision petition under Article 227 of the Constitution of India at the instance of the petitioner-husband is directed against the order dated 24.01.2013 passed by learned District Judge, Family Court, Ambala, whereby the application moved by respondent-wife for maintenance pendente lite to maintain herself besides a school going child, has been allowed and the maintenance at the rate of ` 5,000/- per month towards maintenance pendente lite from the date of application Singh Ravinder 2013.11.15 10:24 I attest to the accuracy and integrity of this document Chandigarh -2- Civil Revision No.1767 of 2013 and ` 7,500/- towards litigation expenses, including counsel fee, has been awarded. It has been specifically mentioned in the order that this amount will be adjustable with the amount granted as interim maintenance in petition under Section 125 Cr.P.C.
Brief facts of the case are that marriage between petitioner and respondent was solemnized on 22.04.2004. After the marriage, petitioner and respondent started residing at Delhi as husband and wife and from the wedlock a daughter, namely, Gosmi was born on 24.12.2006 at Ambala City. It is alleged that respondent again conceived a child and thereafter misunderstanding appears to have arisen between the parties. As per the allegations of the respondent, petitioner and his family started harassing the respondent. As a result of misunderstanding, respondent along with the child left the matrimonial home of the petitioner and started residing with her parents. Thereafter the respondent filed a petition under Section 13 of the Hindu Marriage Act (hereinafter referred to as 'the HMA') in the Court of District Judge, Family Court, Ambala. Along with the petition an application under Section 24 of the HMA was filed. The petitioner appeared and filed reply to the said application. It is pertinent to mention here that petitioner is B.Com, MBA and respondent is M.Com, MBA (PGDBM). Petitioner was working in Choice Solutions (P) Ltd. at Gurgaon and was drawing a handsome salary of ` 35,000/- per month in the year 2006, which has allegedly increased substantially with the passage of time. In Singh Ravinder 2013.11.15 10:24 I attest to the accuracy and integrity of this document Chandigarh -3- Civil Revision No.1767 of 2013 the application under Section 24 of the HMA, respondent has pleaded that she has to maintain herself and her minor daughter and prayed for grant of maintenance pendente lite at the rate of ` 15,000/- per month besides litigation expenses to the tune of ` 22,000/-. In reply to the said application, petitioner pleaded that the application is not maintainable as respondent-wife is getting entire maintenance for herself and the child under Section 125 Cr.P.C. She is a well-educated and is alleged to be working with Ashirwaad Institute, Chandigarh, prior to marriage and allegedly even now imparting tuition and earning enough to maintain herself and prayed that application should be dismissed. The Family Court, after considering the material on record has come to the conclusion that the respondent-wife and minor daughter are residing together at Ambala and awarded maintenance pendente lite as well as litigation expenses as aforesaid. It has also been ordered that maintenance awarded under Section 125 Cr.P.C. should be adjusted.
I have heard the petitioner in person as well as learned counsel for the respondent.
Petitioner in person vehemently contended that application under Section 24 of the HMA is not maintainable as the respondent is already getting maintenance under Section 125 Cr.P.C. Maintenance awarded under Section 125 Cr.P.C. proceedings is still continuing. Petitioner relied upon Gobinder Singh vs. Manjit Kaur, MANU/DE/0214/2010. Petitioner further contended that the factum of Singh Ravinder 2013.11.15 10:24 I attest to the accuracy and integrity of this document Chandigarh -4- Civil Revision No.1767 of 2013 award of maintenance awarded under Section 125 Cr.P.C. was concealed from learned trial court and as such respondent is not entitled to any relief. In support of his contention petitioner relied upon MCD vs. State of Delhi, 2005 SCC (Crl.) 1322 and S.J.S. Business Enterprises (P) Ltd. vs. State of Bihar and others, (2004) 7 SCC 166. Petitioner further contended that respondent is a well-educated lady and she was earlier working and now she is imparting tuitions and doing other works and earning handsome amount; as such she is not entitled to any maintenance. It is further argued by the petitioner that even if the respondent chooses not to work out of her own sweet will, she cannot be permitted to take advantage of her own deeds. It is well-established maxim of Anglo Saxon jurisprudence that no person can be allowed to incapacitate himself or herself. Petitioner further contended that although respondent is saying that she has no source of income and is unable to maintain herself but she is filing and contesting as many as ten cases and as such it cannot be believed that she is not earning anything. Petitioner further submitted that under Section 12 of the Legal Services Authorities Act, 1987, women are entitled to free legal aid and can seek the help from the legal aid service and further argued that the conduct of respondent is such that she does not deserve any maintenance pendente lite. Petitioner further contended that petition under Section 13 of the HMA is lingering on since long and unwanted adjournments have been given and matter should have been decided within the stipulated period. Singh Ravinder 2013.11.15 10:24 I attest to the accuracy and integrity of this document Chandigarh -5- Civil Revision No.1767 of 2013 On the other hand, learned counsel for the respondent vehemently opposed the contentions raised by the petitioner and submitted that award of maintenance under Section 125 Cr.P.C. does not bar filing of application under personal laws, including proceedings under Section 13 of the HMA. The application under Section 24 of the HMA is maintainable and it is only for a limited period i.e. it continues only during the pendency of the proceedings under the HMA. Learned counsel for the respondent further contended that before marriage even if the respondent was employed at Ashirwad Institute, Chandigarh but after marriage she had to leave Chandigarh and started residing with the petitioner at Delhi and it was at the instance of the petitioner that respondent left her job as she was not permitted to continue with her erstwhile job at Chandigarh. Petitioner is a qualified person and was working with a firm. The spirit behind Section 24 of the HMA is to boost the morale of the victim spouse with enough strength to fight the unequal battle with the dominating spouse. The basic purpose is to provide immediate financial assistance to save the wife from destitution. Learned counsel for the respondent further contended that even the petitioner is not paying the maintenance awarded under Section 125 Cr.P.C. and is harassing the respondent.
I have considered the rival contentions raised by the petitioner as well as learned counsel for the respondent.
So far as the contention of the petitioner that application under Singh Ravinder 2013.11.15 10:24 I attest to the accuracy and integrity of this document Chandigarh -6- Civil Revision No.1767 of 2013 Section 24 of the HMA is not maintainable is concerned, the same is mis-conceived. The contention of the petitioner that respondent is not entitled to claim maintenance pendente lite owing to proceedings under Section 125 Cr.P.C., is erroneous. Although order has been passed in the proceedings under Section 125 Cr.P.C. but the petitioner is not paying the maintenance regularly rather unnecessarily dragging the respondent to the courts of law. Admittedly the right of the wife and the minor child to claim maintenance is an incidence of status of matrimony. The relationship of husband and wife is admitted. The spouse is entitled to maintenance according to the circumstances of the case and keeping in view the source of income of either of the spouse. Husband is bound to maintain wife and the children specially when the wife is not having any source of income. It is pertinent to mention that right conferred under Section 24 of the HMA is in the nature of a special right arising on initiation of proceedings under the HMA and during the pendency of the proceedings by one or the other party to the marriage. In exercise of right under Section 24 of the HMA either husband or the wife, as the case may be, can seek an order for payment of expenses of the proceedings and a monthly sum sufficient for his or her support. Thus it is clear that the right under Section 24 of the HMA is not made available generally to the parties to the marriage. The right is conferred under the specific Section of the HMA and is in the nature of statutory right. Proceedings under Section 125 Cr.P.C. are generally initiated by wife Singh Ravinder 2013.11.15 10:24 I attest to the accuracy and integrity of this document Chandigarh -7- Civil Revision No.1767 of 2013 with the hope and expectation that she would get quick and speedier relief in those proceedings by way of maintenance for herself and the child. Initiation of proceedings under Section 125 Cr.P.C. and Section 24 of the HMA, at the best, can be said to be two different modes for maintenance which are statutorily conferred under the HMA. The purpose behind Section 24 of the HMA is that the dominating party to the matrimonial dispute should not take undue and unfair advantage of vulnerable position of other spouse. The object behind Section 24 of the HMA makes it clear that the enforcement of right under any other provision of law will not defeat the right of the aggrieved party; as such the contention cannot be sustained. Maintenance under Section 24 of the HMA is a statutory right. This Court in Surjit Kaur vs. Tirath Singh, AIR 1978 P&H 112 while interpreting Section 24 of the HMA and considering question whether proceedings under Section 488 of the old Cr.P.C. (corresponding to Section 125 of Cr.P.C. 1973) would have any impact upon the right conferred under Section 24 of the HMA, held that a mere pre-existing order under the Criminal Procedure Code for payment of maintenance, does not oust the jurisdiction of the civil court to allow maintenance pendente lite under Section 24 of the HMA. In so holding, reference was made to the case of Harbans Lal vs. Ganga Devi, 1976 Chad. L.R. 250 where the prayer to stay proceedings under Section 125 Cr.P.C. on the ground that, pendente lite maintenance had been awarded by the High Court under Section 24 of the HMA, was Singh Ravinder 2013.11.15 10:24 I attest to the accuracy and integrity of this document Chandigarh -8- Civil Revision No.1767 of 2013 declined on the ground that the wife had an independent right to claim maintenance under Section 125 Cr.P.C., even if she had been allowed maintenance under Section 24 of the HMA. There is no concealment of the 125 Cr.P.C. proceedings by the respondent in application under Section 24 of the HMA. Once the petitioner is a party, he is fully aware of the facts. The Family court has already mentioned that maintenance awarded under Section 125 Cr.P.C. shall be adjusted towards maintenance granted under Section 24 of the HMA.
Further contention of the petitioner is that respondent is in a position to litigate as a number of cases are pending and besides this, she can get the help of legal aid advocate. So far as the pendency of cases and defending the same is concerned, the destitute respondent-wife has been unnecessarily subjected to litigation. Section 24 of the HMA and Section 125 Cr.P.C. are in the nature of welfare and social security legislation to avoid the legal battle waged by the dominating spouse. Therefore, so far as this contention is concerned, respondent has been compelled to defend the litigation by the circumstances, which are apparently created by the petitioner and it will be ultimately decided by the trial court after perusal of the evidence of both the parties. It is not necessary that legal aid counsel should be given as a matter of right or party should go for that. The party has right to choose the counsel according to his/her choice. In view of this, this contention is also not acceptable and is, thus, rejected.
Singh Ravinder 2013.11.15 10:24 I attest to the accuracy and integrity of this document Chandigarh -9- Civil Revision No.1767 of 2013 So far as the contention of the petitioner that respondent is M.Com, MBA is concerned, admittedly she is not working. Earlier she was working and she had left the job because the petitioner started residing at Delhi and there is a long distance between Delhi and Chandigarh. It appears that with a purpose to fulfil the marital obligations she had left the job at the instance of the petitioner.
It would be appropriate to mention here that while awarding maintenance pendente lite various factors are taken into account; such as status of the parties, reasonable need of the claimant, income and property of the claimant, number of persons to be maintained, liability, if any. Admittedly, in the present case, petitioner was getting sufficient amount of ` 35,000/- per month in the year 2006. With the passage of time and experience certainly petitioner will be having much more pay which petitioner has intentionally withheld and not brought on record to show his real income. In such circumstances guess work can be made by the court. Family Court after taking into consideration all the circumstances has passed the impugned order.
I have perused the judgments referred to by the petitioner. As aforesaid, various factors are taken into account before awarding maintenance. Maintenance pendente lite is a question which is determined in the light of particular facts and circumstances of the case and the rule is very flexible and wider powers are vested in the court to use it with a purpose to do substantive justice.
Singh Ravinder 2013.11.15 10:24 I attest to the accuracy and integrity of this document Chandigarh -10- Civil Revision No.1767 of 2013 Hon'ble Supreme Court in Smt. Jasbir Kaur Sehgal vs. The District Judge Dehradun and others, AIR 1997 SC 3397 had the occasion to consider the issue regarding award of maintenance under Section 24 of the HMA. Hon'ble Supreme Court held that considering the diverse claims made by the parties one inflating the income and the other suppressing, an element of conjecture and guess work does enter for arriving at the income of the husband. It cannot be done by any mathematical precision. Admittedly the respondent-wife is staying with her parents along with a minor child. In these circumstances, petitioner is obliged under the law and statutes to make payments towards their maintenance which in fact is also his social obligation.
So far as the contention of the learned counsel for the respondent that 38 unnecessary adjournments have been granted in petition under Section 13 of the HMA is concerned, Family Court will look into the same and make an endeavour to dispose of the petition after affording adequate opportunity of leading evidence to the parties, if that is so, at the earliest.
In view of above, I do no find any illegality or perversity in the impugned order.
Dismissed with costs of ` 5,000/-.
(Paramjeet Singh) Judge November 08, 2013 R.S. Singh Ravinder 2013.11.15 10:24 I attest to the accuracy and integrity of this document Chandigarh