Tag Archives: Interim maintenance

NO #double #maintenance under Sec #24HMA and Sec #18HAMA, #BombayHC

discussing the provisions of various enactments providing maintenance, the Honourable Bombay HC concludes that “…. 7. We, however, make it clear that, once the interim maintenance is granted either under section 24 of the Hindu Marriage Act or under section 18 of the Hindu Adoptions and Maintenance Act, then, there is no question of entertaining the application under the other Act. This would avoid multiplicity of proceedings, because the criteria for awarding maintenance under both the provisions would be the same…..”

This is very useful for husbands fighting multiple maintenance claims by women

**

Bombay High Court
Sangeeta Piyush Raj vs Piyush Chaturbhuj Raj on 13 January, 1998
Equivalent citations: 1998 (3) BomCR 207, II (1998) DMC 443
Author: M Shah
Bench: M S C.J., R Kochar
ORDER M.B. Shah, C.J.

  1. 1. After considering the various decisions cited at the hearing of the Notice of Motion, by order dated 17th January, 1997, Variava, J., referred to the Division Bench the following two questions for determination:–
    1. “1. Whether in proceedings under section 18 of the Hindu Adoptions and Maintenance Act, the Court can grant interim maintenance?
    2. 2. Whether if matrimonial proceedings are pending between the parties then an application for interim maintenance must be made only to the Family Court under the provisions of section 24 of the Hindu Marriage Act?”
  2. 2. With regard to the first question, after considering the various decisions, the Division Bench of this Court (V.P. Tipnis & Mrs. R.R Desai, JJ.) by judgment and order dated (16th and 17th December, 1997 in Appeal No. 14 of 1997) has arrived at the conclusion that, in a suit filed under section 18 of the Hindu Adoptions and Maintenance Act, 1956, the Court has jurisdiction and power to pass appropriate interim and ad-interim orders. We agree with the said conclusion.
  3. 3. Further, it is to be noted that the Hindu Adoptions and Maintenance Act, 1956 codifies the law relating to adoptions and maintenance among Hindus. It only declares and codifies the law with regard to adoptions and maintenance by Hindus. The basis of such obligation to maintain wives, widowed daughter-in-law, children and aged parents may be a pious obligation of Hindus. The provisions relating to maintenance are in Chapter III. Section 18 deals with maintenance of a wife during her life time under certain circumstances, as provided in sub-section (2) thereof. Section 19 provides for maintenance of a widowed daughter-in-law to the extent that she is unable to maintain herself out of her own earnings or other property by her father-in-law. Similarly, section 20 provides for maintenance of his or her legitimate or illegitimate children and his or her aged or infirm parents. The liability to pay maintenance to children is on the father or mother. Similarly, liability to pay maintenance to infirm parents is on the son or the daughter. Section 22 further provides that the heirs of a deceased Hindu are bound to maintain the defendants of the deceased (as defined in section 21) out of the estate inherited by them from the deceased. Section 23 provides for the objective criteria for determining the amount of maintenance. Further, the requirement is that no person shall be entitled to claim maintenance if she or he has ceased to be a Hindu by conversion to any other religion (section 24). Section 25 empowers the alteration of the amount of maintenance on change of circumstances justifying such alteration. Further, the proceedings initiated for getting maintenance would be under the Civil Procedure Code. Hence, there is no reason why inherent jurisdiction of the Court cannot be exercised for providing interim maintenance. If a deserted wife, widowed daughter-in-law, minor children and aged parents are not provided with interim maintenance, it would cause lot of hardship for a long period. The entire purpose of the enactment would be defeated because of the proverbial delays in disposal of cases resulting in grave hardship to the applicants who may have no means to survive until final decree is passed. There is no provision under the Hindu Adoptions and Maintenance Act or under the Civil Procedure Code that interim maintenance cannot be granted; there is no provision under the said Act which would meet the necessities of the case in question. Therefore, for doing real and substantial justice, Court can exercise power under section 151 of the Civil Procedure Code for grant of interim maintenance. It would also prevent abuse of the process of the Court.
  4. 4. Even in proceedings under section 125 of the Code of Criminal Procedure, in the case of Savitri v. Govind Singh Rawat, 1986 Cri. L.J. 411, the Court held as under :–
    • “Having regard to the nature of the jurisdiction exercised by a Magistrate under section 125 of the Code, we feel that the said provisions should be interpreted as conferring power by necessary implication on the Magistrate to pass an order directing a person against whom an application is made under it to pay a reasonable sum by way of interim maintenance, subject to the other conditions referred to, pending final disposal of the application. In taking this view we have also taken note of the provisions of section 7(2)(a) of the Family Courts Act, 1984 (Act No. 66 of 1984) passed recently by Parliament proposing to transfer the jurisdiction exercisable by Magistrates under section 125 of the Code to the Family Courts constituted under the said Act.”
    • For arriving at the above conclusion, the Court has observed that every Court must be deemed to possess by necessary intendment all such powers as are necessary to make its orders effective. The Court further observed that whenever anything is required to be done by law and it is found impossible to do that thing unless something not authorised in express terms be also done, then that something else will be supplied by necessary intendment. In a civil suit filed for maintenance on the basis of the law applicable under the Hindu Adoptions and Maintenance Act, such power is required to be exercised. In our view, there is no reason not to apply the ratio laid down by the Supreme Court in Savitri’s case (supra) to the question involved in the present case.
  5. 5. Re: The Second Question :
    • In our view, even if matrimonial proceedings are pending between the parties, it is not the requirement that the application for interim maintenance must be made only to the Family Court under the provisions of section 24 of the Hindu Marriage Act. Once we arrive at the conclusion that an application under section 18 of the Hindu Adoptions and Maintenance Act is maintainable during the pendency of proceedings under the Hindu Marriage Act, then, obviously, the result would be that the application (or interim maintenance could be filed before the Court dealing with the right arising under provisions of section 18 of the Hindu Adoptions and Maintenance Act.
  6. 6. With regard to the provisions of section 18 of the Hindu Adoptions and Maintenance Act and provisions of the Hindu Marriage Act, the Apex Court, in the case of Chand Dhawan v. Jawaharlal Dhawari, 1993(3) Supreme Court Cases 4061, has held that, without affection or disruption of the marital status, a Hindu wife sustaining that status can live in separation from her husband, and whether she is living in that state or not, her claim to maintenance stands preserved in codification under section 18(1) of the Hindu Adoptions and Maintenance Act. She may also be entitled to relief under section 125 of the Code of Criminal Procedure; but this is an alternative measure. The Court clarified that, in a petition under the Hindu Marriage Act, the Court is empowered to grant interim maintenance; but, in those cases where the marital status is to be affected or disrupted, then the Court would pass orders for maintenance. In other cases, the Hindu Adoptions and Maintenance Act would be applicable. Hence, in our view, even if matrimonial proceedings are pending between the parties in the Family Court, it is not necessary that for getting interim maintenance, an application must be made to the said Court under the provisions of section 24 of the Hindu Marriage Act.
  7. 7. We, however, make it clear that, once the interim maintenance is granted either under section 24 of the Hindu Marriage Act or under section 18 of the Hindu Adoptions and Maintenance Act, then, there is no question of entertaining the application under the other Act. This would avoid multiplicity of proceedings, because the criteria for awarding maintenance under both the provisions would be the same.
  8. 8. Reference stands disposed of accordingly.

 

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after words of wisdom, Hon SC Judge orders sick jobless husband to pay 5000 every hearing !!

Monthly maintenance and that too at interim stage is the worst millstone around men’s neck. In yet another case exemplifying this sad situation, a sick and jobless husband was told that HE HAS TO WORK and he HAS to earn, so that he can continue to pay his wife !! The poor fella has to pay 5000 per month in addition to fighting multiple cases and taking care of his kids

You Say You’re a Homemaker But Where’s the Home, SC Asks Unemployed Husband

The bench ordered for consolidation of all the cases between the warring couple and directed the judge-in-charge to ensure cases are not scattered over various courts.

Utkarsh Anand | CNN-News18

Updated:February 28, 2018, 9:01 AM IST

You Say You're a Homemaker But Where's the Home, SC Asks Unemployed Husband

File image of Supreme Court. (Image: PTI)

New Delhi: “You say you are a homemaker but where is the home to make?” the Supreme Court asked a man while hearing a bunch of matrimonial dispute cases.

A bench headed by Justice Kurian Joseph was adjudicating the dispute relating to multiple litigation between the estranged couple when it asked the husband about what he does for a living. “I am a homemaker,” said the man.

“You say you are a homemaker but where is the home to make? You have been fighting with your wife for years and children are also suffering. Where is the home?” Justice Joseph asked him.

At this, the man cut a sorry figure, saying he has tried a lot but it looked very difficult to reconcile with the wife. Justice Joseph then reminded the husband that he could not remain a homemaker anymore.

“You will have to work…earn. You have to maintain your wife, two children and then conduct four cases. You must start working now,” the judge said.

The man replied that he had undergone surgeries and had a severe medical condition.

“That is okay but you cannot afford not to work. You even have the interim custody of two children. So do whatever work comes your way and earn,” Justice Joseph said.

The wife, who was also present in the Court, expressed her difficulties in fighting different cases at different places in Kerala.

Acknowledging her problems, the Court said that it would be better for both the parties if all cases, which include custody battle, divorce, alimony and cruelty, should be heard on the same day in the same court premises.

The bench then ordered for consolidation of all the cases between the warring couple and directed the judge-in-charge to ensure cases are not scattered over various courts.

It also asked the husband to pay Rs 5,000 for transportation and other allowances to the estranged wife for every date of hearing.

source

HC says 60,000 p.m. while SC says 25000 P.M. is correct maintenace in VERY SAME CASE !!

Indian Men are forced to pay interim maintenance to estranged wife without ANY GUILT being proven! On top of this, there is a vide variation in what is granted by one court vs what is granted by another. In many cases Income Tax and other records are conveniently disbelieved. The claims of husbands that the wife are “employable” and have “capacity to earn” fall on deaf ears !!

And, needless to say, well educated “model” women keep earning maintenance, just because the husband and his family were successful in life !!

Sadly this husband has already deposited something like 22 Lakhs to the wife in addition to some monthly maintenance paid by him (pursuant to earlier orders)

Luckily, in this case, the Apex court DRASTICALLY REDUCED the maintenance. Please note that the husband and his family “…They are successful in their business. His mother belongs to a family of journalists and lawyers…….”


REPORTABLE

IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 4615 OF 2017
(Arising out of SLP (C) No.7670 OF 2014)

 

MANISH JAIN …Appellant

Versus

AKANKSHA JAIN …Respondent

O R D E R

R. Banumathi, J.

  1. Leave granted.
  2. The present appeal has been filed by the appellant-husband against the order dated 21.02.2014 passed by the High Court of Delhi at New Delhi in C.M.(M) No.910 of 2010. In the said judgment, the High Court while setting aside the order dated 15.03.2010 passed by the Additional District Judge-II (West), Tis Hazari, Delhi who declined to award maintenance pendente lite to the respondent-wife under Section 24 of the Hindu Marriage Act, 1955 has granted interim maintenance to the respondent-wife at the rate of Rs.60,000/- per month to be paid by the appellant-husband Manish Jain with effect from 1st February, 2012 till the disposal of divorce petition. The said amount was fixed in addition to Rs.10,000/- which the appellant-husband has already been paying by way of interim maintenance as per the order passed in Criminal Appeal No.65 of 2008 under Section 23(2) of the Protection of Women from Domestic Violence Act, 2005 [for short ‘the D.V. Act’].
  3. This is a case of marital discord which has a chequered history. Brief facts leading to this appeal by way of special leave are as under:- Both the appellant and the respondent got married on 16.02.2005 and they were living at V-38, Green Park, New Delhi. The couple shifted to an accommodation at 303, SFS Apartment, Hauz Khas, New Delhi on 15.04.2007. In or about July, 2007 relationship between the parties got strained. In September, 2007 the appellant-husband filed a divorce petition HMA No.553/2007 under the Hindu Marriage Act, 1955 [for short ‘the HM Act’] seeking divorce on the grounds of cruelty.
  4. In November, 2007 the respondent-wife filed a petition under the D.V. Act along with interim relief i.e., maintenance. She also filed a complaint on 23.11.2007 under Section 498-A and Section 406 IPC with CAW Cell, Amar Colony, Nanakpura, New Delhi against the appellant-husband and his family members which was later on registered as FIR bearing No.190 of 2008, Police Station, Friends Colony, New Delhi on 04.03.2008. In December, 2007, respondent filed yet another Complaint Case No.381 of 2008 under Section 125 Cr.P.C. before the Mahila Court, Patiala House, New Delhi. Her interim application seeking maintenance amongst other reliefs under Section 23(2) of the D.V. Act was dismissed by the Metropolitan Magistrate, Patiala House, New Delhi by order dated 23.04.2008 on the ground that the respondent was employed and was getting a stable income and that no document was placed on record by the respondent to show that respondent had again become jobless as the publication of the Magazine FNL had been stopped. Against the dismissal of application for maintenance, the respondent had filed appeal before Additional Sessions Judge, Patiala House in Criminal Appeal No.65 of 2008. In the said appeal and in Criminal Revision No.66 of 2008, Additional Sessions Judge, Patiala House by an order dated 01.09.2009 granted maintenance of Rs.10,000/- per month to the respondent-wife.
  5. The appellant-husband filed an application under Section 438 Cr.P.C. on 22.04.2008 for grant of bail in anticipation of his likely arrest. The High Court granted anticipatory bail to the appellant-husband subject to return of Toyota Corolla and dowry/jewellery articles to the respondent-wife within a week from the date of order till the next date of hearing which is said to have been complied with. Order was also passed directing the respondent to deposit Rs.12,00,000/- towards alleged return of dowry articles.
  6. The respondent-wife filed application under Section 24 of the HM Act claiming interim maintenance pendente lite of Rs.4,00,000/- per month and also a sum of Rs.80,000/- to meet litigation expenses during the pendency of the divorce petition. In the said application, the respondent- wife pleaded that she was having no source of income to maintain herself and that she is dependent upon others for her day to day needs and requirements. The said application was resisted by the appellant-husband contending that the respondent-wife is an educated lady and that she had completed her one year course of Fashion Designing from J.D. Institute, Hauz Khas, New Delhi and that she is capable of earning monthly salary of Rs.50,000/. The application filed under Section 24 of the HM Act was dismissed by Additional District Judge-II, Tis Hazari, Delhi by order dated 15.03.2010. Being aggrieved, the respondent-wife filed Crl. M.A. No.17724 of 2012 before the High Court, Delhi. The High Court in its order dated 08.11.2011 in C.M.(M) No.910 of 2010 filed by the wife against the order dated 15.03.2010 directed both the parties to file an affidavit truthfully disclosing their correct income. Both the husband and the wife filed an affidavit as to their income in compliance of the aforesaid order. After so directing the parties to file affidavit regarding their income and after referring to the income of appellant-husband and the properties which the appellant and his family are owning and also the standard of living of the respondent-wife which she is required to maintain, the High Court by the impugned order directed the appellant-husband to pay interim maintenance of Rs.60,000/- per month in addition to Rs.10,000/- which was directed to be paid to the respondent-wife in the proceedings under the D.V. Act.
  7. Aggrieved by the order of the High Court, the appellant-husband came in appeal before this Court by way of special leave. After giving opportunity to the parties to work out a settlement which ultimately failed, the same was dismissed on 15.04.2014. Being aggrieved by the dismissal of the above petition, a review petition was filed on 13.05.2014 in which notice was issued by this Court on 06.08.2014 and on 03.02.2016 the same was allowed and the Special Leave Petition was restored to its original number which is the subject matter before us.
  8. Learned counsel for the appellant-husband submitted that the respondent-wife has concealed her employment and independent source of income on several occasions throughout the matrimonial proceedings before the courts below and also that the High Court has committed a grave error in interfering with the well-reasoned order of the trial Court under Section 24 of the HM Act. The learned counsel for the appellant-husband submitted that the trial court after analyzing the evidence that the wife was educated, professionally qualified in the Fashion industry and had sufficient independent income rejected the application of the wife seeking maintenance under Section 24 of the HM Act. It was submitted that the High Court without proper appreciation of the income of the parties had wrongly set aside the order of the trial Court and fixed an abnormal amount of Rs.60,000/- as maintenance to the respondent-wife under Section 24 of the Hindu Marriage Act. Learned counsel further submitted that in Criminal Appeal No.65 of 2008 under Section 23(2) of the D.V. Act, the appellant- husband is paying an interim maintenance of Rs.10,000/- per month to the respondent-wife and the appellant-husband has so far made a total payment of Rs.7,50,000/- in the proceedings under D.V. Act, apart from returning a Toyota Corolla car worth Rs.13,00,000/- besides depositing a sum of Rs.12,00,000/- and a sum of Rs.2,75,000/– towards untraced admitted dowry articles in compliance with the order passed by the Court. It was further submitted that the appellant-husband’s firms/companies have been either shut down due to heavy loss and/or under the stage of winding up and the appellant-husband is not in a position to pay the exorbitant amount of Rs.60,000/- per month as maintenance pendente lite to the respondent-wife.
  9. Learned counsel for the respondent-wife at the outset submitted that the principle of providing maintenance is to ensure the living conditions of respondent-wife similar to that of appellant-husband whereas in the present case the respondent-wife is yet to receive any money.
  10. We have heard the matter at considerable length. Parties are entangled in several rounds of litigation making allegations and counter allegations against each other. Since various proceedings are pending between the parties, we are not inclined to go into the merits of the rival contentions advanced by the parties. The only question falling for consideration is whether the respondent-wife is entitled to maintenance pendente lite and whether the amount of Rs.60,000/- awarded by the High Court is on the higher side.
  11. The Court exercises a wide discretion in the matter of granting alimony pendente lite but the discretion is judicial and neither arbitrary nor capricious. It is to be guided, on sound principles of matrimonial law and to be exercised within the ambit of the provisions of the Act and having regard to the object of the Act. The Court would not be in a position to judge the merits of the rival contentions of the parties when deciding an application for interim alimony and would not allow its discretion to be fettered by the nature of the allegations made by them and would not examine the merits of the case. Section 24 of the HM Act lays down that in arriving at the quantum of interim maintenance to be paid by one spouse to another, the Court must have regard to the appellant’s own income and the income of the respondent.
  12. At the time of filing application under Section 24 of the HM Act in December, 2007, the respondent-wife was doing her internship in fashion designing in J.D. Institute of Fashion Technology and just completed the course and was not employed at that time. Only in the month of May, 2008, she became a trainee and joined FNL Magazine of Images Group as Junior Fashion Stylist and was earning an approximate/stipend income of Rs.21,315/- per month and due to recession, the same is said to have been reduced to Rs.16,315/- for three months that is July, August and September in the year 2009. It is stated that thereafter the respondent-wife has become jobless and associated with Cosmopolitan Magazine and according to the respondent- wife, she was working as a Stylist and is paid nominal amount of Rs.4,500/- per shoot and the said amount is inclusive of expenses like travelling etc. On a perusal of the judgment of the High Court and also the affidavit of the respondent-wife, it is clear that the respondent-wife has no permanent source of employment and no permanent source of income.
  13. Appellant-husband is stated to be a partner in the firms of his family business. It is also stated that the appellant-husband and his family own several valuable properties and has flourishing business. Insofar as the properties/income of appellant-husband, the High Court has made the following observations:-“38. From the pleading of the respondent before other Courts, it has come on record that the respondent’s family is having successful and flourishing business of electrical and non-ferrous metals for the last 22 years. They are successful in their business. His mother belongs to a family of journalists and lawyers….39. From the material placed on record by the petitioner, prima facie it appears to the Court that even the respondent has not made full disclosure about his income and correct status of the family in the affidavits filed by him. The statements made by him are contrary to the statement made in the bail application. Prima facie, it appears to the Court that the respondent is hiding his income by trying to show himself as a pauper, however, the documents placed on record speak differently. At the same time the family members have a reasonably flourishing business and many properties as admitted by him. It has now become a matter of routine that as and when an application for maintenance is filed, the non-applicant becomes poor displaying that he is not residing with the family members if they have a good business and movable and immovable properties in order to avoid payment of maintenance. Courts cannot under these circumstances close their eyes when tricks are being played in a clever manner.” 
  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.
  16. In the present case, at the time of claiming maintenance pendente lite when the respondent-wife had no sufficient income capable of supporting herself, the High Court was justified in ordering maintenance. However, in our view, the maintenance amount of Rs.60,000/- ordered by the High Court (in addition to Rs.10,000/- paid under the proceedings of the D.V. Act) appears to be on the higher side and in the interest of justice, the same is reduced to Rs.25,000/- per month. The maintenance pendente lite of Rs.25,000/- is to be paid to the respondent-wife by the appellant- husband (in addition to Rs.10,000/- paid under the proceedings of the D.V. Act).
  17. The order impugned herein is set aside and the appeal is allowed. The amount of Rs.60,000/- awarded as maintenance pendente lite is reduced to Rs.25,000/- per month which is in addition to Rs.10,000/- paid under the proceedings of the D.V. Act. The appellant-husband is directed to pay the arrears w.e.f. 01.02.2012 till the disposal of the divorce petition, within four weeks from today. The appellant-husband shall continue to pay Rs.25,000/- per month in addition to Rs.10,000/- paid under the proceedings of the D.V. Act on or before 10th of every English calendar month till the disposal of the divorce petition. If the appellant-husband has paid or deposited any amount of maintenance pursuant to the order of the High Court dated 21.02.2014, the same shall be set-off against the arrears to be paid by the appellant-husband. The respondent-wife is at liberty to withdraw the amount, if any, deposited by the appellant-husband pursuant to the order dated 21.02.2014. We make it clear that we have not expressed any opinion on the merits of the matter. In case the appellant-husband does not comply with the order, as above, including for payment of arrears, he would be visited with all consequences including action for contempt of Court.

………………………….J. [KURIAN JOSEPH]

.………………………..J. [R. BANUMATHI]

New Delhi;

March 30, 2017

#Journo & #Lawyer’s son case. #SC reduces #maintenance from 60K to 25K p.m. though #husband family big #bizmen !!

#Journalist & #Lawyer woman’s son is in #matrimonial case with his wife. #Parties have filed #multiple #cases against each other. #HC has #awarded maintenance pendente lite of #Rs60,000 p.m. considering the status of parties … However SC reduces maint from Rs60,000 p.m. to #Rs25,000 p.m. though husband is supposed to be a big businessman (partner in a family business ) !!!

This is from the Honourable HC which awarded Rs 60,000 p.m.
/////13. Appellant-husband is stated to be a partner in the firms of his family business. It is also stated that the appellant-husband and his family own several valuable properties and has flourishing business. Insofar as the properties/income of appellant-husband, the High Court has made the following observations:- “38. From the pleading of the respondent before other Courts, it has come on record that the respondent’s family is having successful and flourishing business of electrical and non-ferrous metals for the last 22 years. They are successful in their business. His mother belongs to a family of journalists and lawyers…. 39. From the material placed on record by the petitioner, prima facie it appears to the Court that even the respondent has not made full disclosure about his income and correct status of the family in the affidavits filed by him. The statements made by him are contrary to the statement made in the bail application. Prima facie, it appears to the Court that the respondent is hiding his income by trying to show himself as a pauper, however, the documents placed on record speak differently. At the same time the family members have a reasonably flourishing business and many properties as admitted by him. It has now become a matter of routine that as and when an application for maintenance is filed, the non-applicant becomes poor displaying that he is not residing with the family members if they have a good business and movable and immovable properties in order to avoid payment of maintenance. Courts cannot under these circumstances close their eyes when tricks are being played in a clever manner.” ////////

However Honourable SC says //////16. In the present case, at the time of claiming maintenance pendente lite when the respondent-wife had no sufficient income capable of supporting herself, the High Court was justified in ordering maintenance. However, in our view, the maintenance amount of Rs.60,000/- ordered by the High Court (in addition to Rs.10,000/- paid under the proceedings of the D.V. Act) appears to be on the higher side and in the interest of justice, the same is reduced to Rs.25,000/- per month. ////// !!!!!!!!!

==================================

REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 4615  OF 2017

(Arising out of SLP (C) No.7670 OF 2014)

MANISH JAIN                                         …Appellant

Versus

AKANKSHA JAIN                                   …Respondent

O R D E R

R. Banumathi, J.

 

  1. Leave granted.
  2. The present appeal has been filed by the appellant-husband against the order dated 21.02.2014 passed by the High Court of Delhi at New Delhi in C.M.(M) No.910 of 2010. In the said judgment, the High Court while setting aside the order dated 15.03.2010 passed by the Additional District Judge-II (West), Tis Hazari, Delhi who declined to award maintenance pendente lite to the respondent-wife under Section 24 of the Hindu Marriage Act, 1955 has granted interim maintenance to the respondent-wife at the rate of Rs.60,000/- per month to be paid by the appellant-husband Manish Jain with effect from 1st February, 2012 till the disposal of divorce petition. The said amount was fixed in addition to Rs.10,000/- which the appellant-husband has already been paying by way of interim maintenance as per the order passed in Criminal Appeal No.65 of 2008 under Section 23(2) of the Protection of Women from Domestic Violence Act, 2005 [for short ‘the D.V. Act’].
  3. This is a case of marital discord which has a chequered history. Brief facts leading to this appeal by way of special leave are as under:- Both the appellant and the respondent got married on 16.02.2005 and they were living at V-38, Green Park, New Delhi. The couple shifted to an accommodation at 303, SFS Apartment, Hauz Khas, New Delhi on 15.04.2007. In or about July, 2007 relationship between the parties got strained. In September, 2007 the appellant-husband filed a divorce petition HMA No.553/2007 under the Hindu Marriage Act, 1955 [for short ‘the HM Act’] seeking divorce on the grounds of cruelty.
  4. In November, 2007 the respondent-wife filed a petition under the D.V. Act along with interim relief i.e., maintenance. She also filed a complaint on 23.11.2007 under Section 498-A and Section 406 IPC with CAW Cell, Amar Colony, Nanakpura, New Delhi against the appellant-husband and his family members which was later on registered as FIR bearing No.190 of 2008, Police Station, Friends Colony, New Delhi on 04.03.2008. In December, 2007, respondent filed yet another Complaint Case No.381 of 2008 under Section 125 Cr.P.C. before the Mahila Court, Patiala House, New Delhi. Her interim application seeking maintenance amongst other reliefs under Section 23(2) of the D.V. Act was dismissed by the Metropolitan Magistrate, Patiala House, New Delhi by order dated 23.04.2008 on the ground that the respondent was employed and was getting a stable income and that no document was placed on record by the respondent to show that respondent had again become jobless as the publication of the Magazine FNL had been stopped. Against the dismissal of application for maintenance, the respondent had filed appeal before Additional Sessions Judge, Patiala House in Criminal Appeal No.65 of 2008. In the said appeal and in Criminal Revision No.66 of 2008, Additional Sessions Judge, Patiala House by an order dated 01.09.2009 granted maintenance of Rs.10,000/- per month to the respondent-wife.
  5. The appellant-husband filed an application under Section 438 Cr.P.C. on 22.04.2008 for grant of bail in anticipation of his likely arrest. The High Court granted anticipatory bail to the appellant-husband subject to return of Toyota Corolla and dowry/jewellery articles to the respondent-wife within a week from the date of order till the next date of hearing which is said to have been complied with. Order was also passed directing the respondent to deposit Rs.12,00,000/- towards alleged return of dowry articles.
  6. The respondent-wife filed application under Section 24 of the HM Act claiming interim maintenance pendente lite of Rs.4,00,000/- per month and also a sum of Rs.80,000/- to meet litigation expenses during the pendency of the divorce petition. In the said application, the respondent- wife pleaded that she was having no source of income to maintain herself and that she is dependent upon others for her day to day needs and requirements. The said application was resisted by the appellant-husband contending that the respondent-wife is an educated lady and that she had completed her one year course of Fashion Designing from J.D. Institute, Hauz Khas, New Delhi and that she is capable of earning monthly salary of Rs.50,000/. The application filed under Section 24 of the HM Act was dismissed by Additional District Judge-II, Tis Hazari, Delhi by order dated 15.03.2010. Being aggrieved, the respondent-wife filed Crl. M.A. No.17724 of 2012 before the High Court, Delhi. The High Court in its order dated 08.11.2011 in C.M.(M) No.910 of 2010 filed by the wife against the order dated 15.03.2010 directed both the parties to file an affidavit truthfully disclosing their correct income. Both the husband and the wife filed an affidavit as to their income in compliance of the aforesaid order. After so directing the parties to file affidavit regarding their income and after referring to the income of appellant-husband and the properties which the appellant and his family are owning and also the standard of living of the respondent-wife which she is required to maintain, the High Court by the impugned order directed the appellant-husband to pay interim maintenance of Rs.60,000/- per month in addition to Rs.10,000/- which was directed to be paid to the respondent-wife in the proceedings under the D.V. Act.
  7. Aggrieved by the order of the High Court, the appellant-husband came in appeal before this Court by way of special leave. After giving opportunity to the parties to work out a settlement which ultimately failed, the same was dismissed on 15.04.2014. Being aggrieved by the dismissal of the above petition, a review petition was filed on 13.05.2014 in which notice was issued by this Court on 06.08.2014 and on 03.02.2016 the same was allowed and the Special Leave Petition was restored to its original number which is the subject matter before us.
  8. Learned counsel for the appellant-husband submitted that the respondent-wife has concealed her employment and independent source of income on several occasions throughout the matrimonial proceedings before the courts below and also that the High Court has committed a grave error in interfering with the well-reasoned order of the trial Court under Section 24 of the HM Act. The learned counsel for the appellant-husband submitted that the trial court after analyzing the evidence that the wife was educated, professionally qualified in the Fashion industry and had sufficient independent income rejected the application of the wife seeking maintenance under Section 24 of the HM Act. It was submitted that the High Court without proper appreciation of the income of the parties had wrongly set aside the order of the trial Court and fixed an abnormal amount of Rs.60,000/- as maintenance to the respondent-wife under Section 24 of the Hindu Marriage Act. Learned counsel further submitted that in Criminal Appeal No.65 of 2008 under Section 23(2) of the D.V. Act, the appellant- husband is paying an interim maintenance of Rs.10,000/- per month to the respondent-wife and the appellant-husband has so far made a total payment of Rs.7,50,000/- in the proceedings under D.V. Act, apart from returning a Toyota Corolla car worth Rs.13,00,000/- besides depositing a sum of Rs.12,00,000/- and a sum of Rs.2,75,000/- towards untraced admitted dowry articles in compliance with the order passed by the Court. It was further submitted that the appellant-husband’s firms/companies have been either shut down due to heavy loss and/or under the stage of winding up and the appellant-husband is not in a position to pay the exorbitant amount of Rs.60,000/- per month as maintenance pendente lite to the respondent-wife.
  9. Learned counsel for the respondent-wife at the outset submitted that the principle of providing maintenance is to ensure the living conditions of respondent-wife similar to that of appellant-husband whereas in the present case the respondent-wife is yet to receive any money.
  10. We have heard the matter at considerable length. Parties are entangled in several rounds of litigation making allegations and counter allegations against each other. Since various proceedings are pending between the parties, we are not inclined to go into the merits of the rival contentions advanced by the parties. The only question falling for consideration is whether the respondent-wife is entitled to maintenance pendente lite and whether the amount of Rs.60,000/- awarded by the High Court is on the higher side.
  11. The Court exercises a wide discretion in the matter of granting alimony pendente lite but the discretion is judicial and neither arbitrary nor capricious. It is to be guided, on sound principles of matrimonial law and to be exercised within the ambit of the provisions of the Act and having regard to the object of the Act. The Court would not be in a position to judge the merits of the rival contentions of the parties when deciding an application for interim alimony and would not allow its discretion to be fettered by the nature of the allegations made by them and would not examine the merits of the case. Section 24 of the HM Act lays down that in arriving at the quantum of interim maintenance to be paid by one spouse to another, the Court must have regard to the appellant’s own income and the income of the respondent.
  12. At the time of filing application under Section 24 of the HM Act in December, 2007, the respondent-wife was doing her internship in fashion designing in J.D. Institute of Fashion Technology and just completed the course and was not employed at that time. Only in the month of May, 2008, she became a trainee and joined FNL Magazine of Images Group as Junior Fashion Stylist and was earning an approximate/stipend income of Rs.21,315/- per month and due to recession, the same is said to have been reduced to Rs.16,315/- for three months that is July, August and September in the year 2009. It is stated that thereafter the respondent-wife has become jobless and associated with Cosmopolitan Magazine and according to the respondent- wife, she was working as a Stylist and is paid nominal amount of Rs.4,500/- per shoot and the said amount is inclusive of expenses like travelling etc. On a perusal of the judgment of the High Court and also the affidavit of the respondent-wife, it is clear that the respondent-wife has no permanent source of employment and no permanent source of income.
  13. Appellant-husband is stated to be a partner in the firms of his family business. It is also stated that the appellant-husband and his family own several valuable properties and has flourishing business. Insofar as the properties/income of appellant-husband, the High Court has made the following observations:- “38. From the pleading of the respondent before other Courts, it has come on record that the respondent’s family is having successful and flourishing business of electrical and non-ferrous metals for the last 22 years. They are successful in their business. His mother belongs to a family of journalists and lawyers…. 39. From the material placed on record by the petitioner, prima facie it appears to the Court that even the respondent has not made full disclosure about his income and correct status of the family in the affidavits filed by him. The statements made by him are contrary to the statement made in the bail application. Prima facie, it appears to the Court that the respondent is hiding his income by trying to show himself as a pauper, however, the documents placed on record speak differently. At the same time the family members have a reasonably flourishing business and many properties as admitted by him. It has now become a matter of routine that as and when an application for maintenance is filed, the non-applicant becomes poor displaying that he is not residing with the family members if they have a good business and movable and immovable properties in order to avoid payment of maintenance. Courts cannot under these circumstances close their eyes when tricks are being played in a clever manner.” 
  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.
  16. In the present case, at the time of claiming maintenance pendente lite when the respondent-wife had no sufficient income capable of supporting herself, the High Court was justified in ordering maintenance. However, in our view, the maintenance amount of Rs.60,000/- ordered by the High Court (in addition to Rs.10,000/- paid under the proceedings of the D.V. Act) appears to be on the higher side and in the interest of justice, the same is reduced to Rs.25,000/- per month. The maintenance pendente lite of Rs.25,000/- is to be paid to the respondent-wife by the appellant- husband (in addition to Rs.10,000/- paid under the proceedings of the D.V. Act).
  17. The order impugned herein is set aside and the appeal is allowed. The amount of Rs.60,000/- awarded as maintenance pendente lite is reduced to Rs.25,000/- per month which is in addition to Rs.10,000/- paid under the proceedings of the D.V. Act. The appellant-husband is directed to pay the arrears w.e.f. 01.02.2012 till the disposal of the divorce petition, within four weeks from today. The appellant-husband shall continue to pay Rs.25,000/- per month in addition to Rs.10,000/- paid under the proceedings of the D.V. Act on or before 10th of every English calendar month till the disposal of the divorce petition. If the appellant-husband has paid or deposited any amount of maintenance pursuant to the order of the High Court dated 21.02.2014, the same shall be set-off against the arrears to be paid by the appellant-husband. The respondent-wife is at liberty to withdraw the amount, if any, deposited by the appellant-husband pursuant to the order dated 21.02.2014. We make it clear that we have not expressed any opinion on the merits of the matter. In case the appellant-husband does not comply with the order, as above, including for payment of arrears, he would be visited with all consequences including action for contempt of Court.

    ………………………….J. [KURIAN JOSEPH]

    .………………………..J. [R. BANUMATHI]

    New Delhi;

    March 30, 2017

Wife’s mum, a prominent lawyer seeks judge’s personal favor & gets exposed! Hubby fighting Int maint 40000 p.m.

Wife wants 40000 p.m! Her mum, a prominent lawyer seeks judge’s personal favor & gets exposed! MP HC

While hearing the matter, Hon’ble Judge made a public statement in the Court clearly stating in presence of counsel for the petitioner Mr. A.S. Rathore, counsel for Mrs. Radhika, some senior lawyers and some other lawyers practicing before this Court that the present respondent, the mother of Mrs. Radhika had come to his house to make an approach for obtaining a favourable order. Hon’ble Judge expressed his anguish and anger by saying that it was uncalled for and was undesirable, due to which he was not willing to hear the matter. The Hon’ble Judge also stated in the Open Court that in view of the conduct expressed by the present respondent, he would not like to hear the matter.

HIGH COURT OF MADHYA PRADESH BENCH AT INDORE

Hon’ble Shri P.K. Jaiswal and
Hon’ble Shri Virender Singh, JJ.

Contempt Criminal No.1/2016

Ritwik Garg S/o Shri Ramesh Garg

Vs.

Smt. Nisha Dubey W/o Shri Deepak Dubey

-x-x-x-x-x-x-x-

Shri Prateek Maheshwari, learned counsel for the
petitioner.

-x-x-x-x-x-x-x-x-

ORDER

(Passed on 25th of November, 2016)

Per : Virender Singh, J.

It is submitted by learned counsel for the petitioner that divorce petition is pending between the petitioner and Mrs. Radhika Garg, in which the Court has fixed maintenance @ Rs.40,000/- per month as alimony. Later, the petitioner found some documents and filed an application for modification of the order granting aforesaid alimony. Mrs. Radhika did not co- operate with the Court in disposing this application, therefore, Court closed her right to file reply. The said order challenged by Mrs. Radhika before this Court vide W.P. No.8314/2015. The order passed by the trial Court for taking the affidavits on record was also challenged before this Court vide W.P. No.7046/2015. It is averred that the respondent Smt. Nisha Dubey, the mother of Smt. Radhika and daughter of a former Judge is well versed with the Court proceedings and she herself a Law Graduate and is imparting education in the legal field as Principal of Indore Law College. She also had been Vice-Chancellor of Baraktullah University, Bhopal. She knows the piousness of the Court proceedings. She also aware of the fact that how a distance from a Judge is to be maintained by a Lawyer, litigant or relation of a litigant.

It is further submitted that the petition filed by Mrs. Radhika came-up for hearing before Hon’ble Shri Justice Prakash Shrivastava on 07/12/2015. After hearing, the Court issued notice on the question of admission and on IA No.6139/2015 and thereafter present petitioner filed his detailed reply in the matter. The case came-up for hearing on 08/03/2016 before Hon’ble Shri Justice S.C. Sharma, who directed that the matter be listed before other Bench but the matter was again listed before Hon’ble Shri Justice S.C. Sharma on 09/03/2016 at motion hearing Serial No.139 in the Daily Cause-List and came-up for hearing before lunch-break. While hearing the matter, Hon’ble Judge made a public statement in the Court clearly stating in presence of counsel for the petitioner Mr. A.S. Rathore, counsel for Mrs. Radhika, some senior lawyers and some other lawyers practicing before this Court that the present respondent, the mother of Mrs. Radhika had come to his house to make an approach for obtaining a favourable order. Hon’ble Judge expressed his anguish and anger by saying that it was uncalled for and was undesirable, due to which he was not willing to hear the matter. The Hon’ble Judge also stated in the Open Court that in view of the conduct expressed by the present respondent, he would not like to hear the matter.

According to the petitioner, the conduct of the respondent has scandalized and lowered authority of the Court and amounts to Contempt of Courts as defined in Section 2 (c) of the Act and punishable under the Contempt of Courts Act. http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/ ; https://twitter.com/ATMwithDick

It is requested to take appropriate action against the respondent and punished for her act for criminal contempt.

The petitioner has filed copies of the order-sheets of W.P. No.8314/2015 dated 07/12/2015, 08/03/2016, 09/03/2016 and 10/03/2016 and the sanction obtained from Advocate General for preferring and prosecuting the present petition.

The petition is also supported with the affidavit of the petitioner.

We have gone through the record.

It is submitted by the petitioner that the Hon’ble Court expressed his anguish and made a public statement that the respondent had approached him. But these facts did not find place in the record of the Court in the order-sheets of W.P. No.8314/2015. It is stated that a request was made to Hon’ble Judge to record the conduct of the present respondent in approaching the Hon’ble Judge but the Hon’ble Judge refused to do so, stating that when such a statement was made publically and openly in the presence of lawyers which includes lawyer of the respondent, there was no need to record the same. But prima facie without any supporting evidence, this is improbable, unnatural and unbelievable.

In the present petition, no statement of Judge is on record in any way. Order-sheet dated 09/03/2016 simply states:-

“Parties as before this Court.

Office is directed to comply with the order dated 08/09/2016 and the matter be listed tomorrow positively i.e. 10/03/2016.”

Looking to the nature of incident only a Judge who was approached by any party was the best witness or his statement was the best possible evidence but in the present case, nothing has been stated or recorded by the Judge.

The petitioner submits that the Judge had made the alleged statement in the Open Court in presence of many persons including the lawyers but neither any record of the Court nor any affidavit of the persons who were present at the relevant point of time, showing occurrence of any such incident has been filed by the petitioner.

It is also pertinent to mention that during the said proceedings, the petitioner was not present in the Court. He has mentioned in the affidavit filed in support of the petition that he made an inquiry from his counsel, who informed him that the respondent has approached the Hon’ble Judge at his residence for obtaining a favourable order for her daughter Mrs. Radhika. It is further mentioned in the affidavit that his counsel Shri A.S. Rathore informed him that such statement was made in his presence. Shri Rathore also informed him that such statement was made by the Judge in the presence of other lawyers practicing in the High Court. Thus, it is clear that the petitioner had not heard the statement of the Judge directly or personally. His statement is based on the information of his counsel but any statement on affidavit has not been filed by the counsel Shri Rathore, therefore, the statement of the petitioner is only a hearsay evidence, which is not supported by any document and cannot be made basis for initiation of any contempt proceedings against the respondent. http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/ ; https://twitter.com/ATMwithDick

It is clear that the learned Judge has recorded nothing in the proceedings, the petitioner was not present during the Court proceedings, persons present there have not supported the statement of the petitioner, any legally admissible evidence about the remark of the learned Judge regarding contemptuous conduct as alleged by the petitioner is not available on record, therefore, initiation of any criminal contempt proceedings, as requested for by the petitioner cannot be done against the respondent.

Learned counsel for the petitioner placed reliance on the decisions in the matter of Devi Jude vs. Hannah Grace & others 2003 Vol.6 Judgment Today 484, Reliance Petrochemicals Limited vs. Indian Express Newspapers AIR 2004 SC 456, Abdul Karim vs. M.K. Prakash and others (1976) 1 SCC 975 and State of Maharashtra and others vs. Ravi Prakash Babulalsing Parmar and another Manupatra 2006 SC 4725 but these judgments are distinguishable on the facts with the present case and not helpful for the petitioner.

Considering the aforesaid and keeping in view the various disputes pending between the parties, we find that the averments made in the petition are not sufficient to initiate contempt proceedings against the respondent, therefore, the admission is declined and petition filed by the petitioner is hereby dismissed.

(P.K. Jaiswal) (Virender Singh)
Judge Judge

Aiyer*


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