CHITRA Vs. PANKAJ KASHYAP

JUDGEMENT

(1.) By this petition filed under Article 227 of the Constitution of India, the petitioner seeks to challenge the order dated 1.9.2011 passed by the learned Family Court, whereby the application of the petitioner under Section 24 of the Hindu Marriage Act to seek interim maintenance during the pendency of the divorce petition was dismissed.

(2.) Arguing for the petitioner, learned counsel Mr. Vineet Mehta submits that the learned Family Court has dismissed the said application of the petitioner only on the ground that the petitioner in her application has nowhere stated that she is not earning anything or the income earned by her is not sufficient for her to support herself. Counsel submits that the learned family court also observed in the impugned order that the petitioner was even silent about whether she is getting any income out of any job or any profession and she was also silent about the expenses which she has to bear for her sustenance. The contention raised by the counsel for the petitioner is that in para 5 of the application under Section 24 of the Hindu Marriage Act, the petitioner clearly disclosed that the respondent husband has neglected and refused to maintain her and malafidely never provided any kind of maintenance allowance to her. Counsel further submits that in the divorce petition under section 13(1)(ia), the petitioner in para 36 has clearly disclosed that she is financially dependent on her parents after she was ousted from her matrimonial home. The submission of the counsel for the petitioner is that merely because the petitioner in her application did not specifically plead that she was not having any independent income for her sustenance, it should not have deprived the petitioner for the grant of maintenance amount as the total reading of the averments made by her in the divorce petition as well as in her Section 24 application it was manifest that the petitioner has stated that she is financially dependent on her parents which would clearly mean that the petitioner has no independent source of income. Counsel also submits that in the absence of any specific averments made by the petitioner in her application, the learned Family Court could have given a fresh opportunity to the petitioner to file a better affidavit or could have taken statement of the parties under Order X of CPC so as to know the correct financial status of the parties, instead of dismissing the application of the petitioner by adopting such a hyper technical approach.

(3.) I have heard learned counsel for the petitioner at considerable length and gone through the impugned order passed by the learned Family Court.