AMIT SINHA Vs. CHAITALI SINHA

JUDGEMENT

(1.) This is an application filed by the husband being dissatisfied with an order passed in an application filed under Section 24 of the Hindu Marriage Act, 1956.

(2.) In a suit for divorce filed by the husband, the wife filed an application on 17th March, 2010 for alimony pendente lite and cost of litigation. Prior to the said proceeding, another proceeding was initiated under Section 125 of the Criminal Procedure Code, in which the wife was awarded maintenance of Rs. 2000/- only for the child and Rs. 1000/- for herself. It is a subsequent proceeding in which the wife on the stated claimed maintenance alimony pendente lite for Rs. 10,000/- each aggregating Rs. 20000/- and Rs. 20,000/ for litigation cost. In the said application in support of her claim, the wife averred that on 30th April, 2007 she gave birth to a male child but the said baby is suffering from down syndrome. The said fact is not in dispute. The wife has also averred that the husband is earning Rs. 70,000/- per month from his present job. The said fact was also not in dispute. The fact that the wife is living with her child separately. The male child is suffering "down syndrome". It is also the fact that the husband is living with his parents and he is maintaining his widow sister and cousins, as claimed by him although husband is not required to maintain the widow sister and cousin since they are not dependent. It appears that the petitioner claims that he is maintaining his sister and cousin. However, that cannot take precedence or assume any particular importance and in relation to maintaining his wife and the suffering child. It is curious that the husband did not support the statement made by the wife that the husband is earning Rs. 70,000/- per month and that learned Judge is correct in holding that the husband is under a duty to of obligation to give evidence under Section 106 of the Evidence Act, since it is within his special knowledge.

(3.) Mr. Shyamal Chakraborty, learned advocate appearing on behalf of the petitioner submits that wife is a well qualified educated lady and capable of earning for herself and look after her son. He relied upon a decision of the Indore Bench of Madhya Pradesh High Court passed in Civil Revision No. 1290 of 1999 (Smt. Mamta Jaiswal v. Rajesh Jaiswal) on 24th March, 2000 for the proposition that Section 24 of the Hindu Marriage Act, 1956 was enacted for the purpose of providing a monetary assistance to such spouse who is incapable of supporting himself or herself in spite of sincere efforts made by him or herself. That the wife is qualified and capable of supporting herself in spite of best efforts had not been the case of the petitioner before the trial court. In any event, a child needs mother and in such a 'down syndrome" symptom, it is highly unlikely that the wife could separate herself even for sometime or for a longer period and in that context I am not inclined to hold that the same is capable of supporting himself or herself in spite of best efforts as held in the said judgment. The learned trial judge seems to have taken a very balanced view in the matter and after going into the pros and cons have exercised his discretionary power which this Court is not inclined to interfere.