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.= 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. =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.

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.

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

Advertisements
This entry was posted in Uncategorized. Bookmark the permalink.