INDU Vs. OM PARKASH BAGHEL

JUDGEMENT

(1.) THIS order shall dispose of an application, namely, CMM No. 77 of 2009 in CM No. 56-M of 2004 in FAO No. 4021 of 2004 for maintenance pendente lite and litigation expenses claimed under Section 151 of the Code of Civil Procedure, 1908 (for short 'CPC') read with Section 24 of the Hindu Marriage Act, 1955 (for short 'the Act').

(2.) IN brief, the applicant/appellant and non-applicant/respondent were married as per Hindu rites on 1.12.1995 and were blessed with a son, namely, Sanket on 01.10.1997. The respondent/husband filed a petition for divorce under Section 13 of the Act in which applicant/appellant-wife was proceeded against ex-parte and their marriage was dissolved by an ex-parte decree dated 23.11.2002, passed by Additional District Judge, Hisar. An application was filed on 12.02.2003 by the applicant/appellant-wife for setting aside the ex-parte decree which was dismissed by the impugned order dated 06.08.2004. Consequently, applicant/appellant filed the present appeal, namely, FAO No. 4021 of 2004 alongwith an application under Section 151 CPC read with Section 24 of the Act in which it was alleged that the applicant/appellant does not have moveable or immovable property, gold ornaments/jewellery are with the respondent, has no independent income sufficient for her support and expenses for the litigation. It was alleged that respondent is a practicing Doctor by profession with a degree of MBBS, MS and is a famous orthopedic surgeon of Agra having monthly income not less than Rs. 2 lacs per month. It was alleged that she is facing multiple litigation, has no source of income, no dwelling house of her own and is passing her life miserably. Therefore, maintenance pendente lite to the tune of Rs. 20000/- per month and litigation expenses to the tune of Rs. 20000/- was claimed. This application was replied by the respondent who, besides raising preliminary objections qua its maintainability has alleged that the applicant/appellant has got her own residential house No. 1265/A situated in Housing Board Colony, Sector 15-A, Hisar. It is alleged that she was allotted two houses i.e House No. 1265 and 1265-A, out of which, she has disposed of House No. 1265 but the other house No. 1265-A is still owned by her, which has been rented out. It is further averred that applicant/appellant had filed Civil Suit No. 154 of 2000 under Section 20 of the Hindu Adoption and Maintenance Act, 1956 on 13.9.2000 in the Civil Court at Hisar on behalf of her minor son as his natural guardian for the grant of maintenance, which has been partly decreed on 21.12.2004 and her son has been held entitled to maintenance allowance of Rs. 3,000/- per month from the date of filing of the suit. It is alleged that since then minor child Sanket has been receiving the said maintenance. It is also averred that the applicant/appellant is a highly educated and having decrees of M.Sc. in Philosophy and B.Ed. who, after renting out her house No. 1265-A situated in Housing Board Colony, Sector 15-A, Hisar has shifted to house No. 1099 in the same colony and is running a coaching centre and also is serving as a school teacher. It is alleged that her monthly income was not less than Rs. 25000/- per month. It is, however, also averred that the respondent had no definite knowledge whether the applicant/appellant is still serving as school teacher or not. It is claimed that the applicant/appellant had also filed an application under Section 125 of the Criminal Procedure Code, 1973 (for short 'Cr.P.C') in which it was alleged that the monthly income of the respondent was not less than Rs. 5,00,000/- per month whereas in the present application, it has been alleged that it is not less than Rs. 2,00,000/-.

(3.) AFTER hearing learned counsel for the applicant/appellant-in-person, counsel for the respondent and keeping in view the case pleaded by both the parties on affidavits, I have come to the conclusion that income of the respondent is not less than Rs. 2,00,000/- per month, in any case, since, admittedly, he is paying Rs. 85,000/- per month towards Bank installment. Thus, in my view, the respondent is liable to pay and the applicant/appellant is entitled to receive a sum of Rs. 15,000/- p.m towards maintenance pendente lite from the date of application but as respondent is already paying Rs. 4,000/- per months towards maintenance in a case filed under Section 125 Criminal Procedure Code , the applicant/appellant would be entitled to Rs. 11,000/- per month in this application as she is being held entitled to a total amount of maintenance to the tune of Rs. 15,000/-. Although, the applicant/appellant is now appearing in person yet, she had initially engaged an Advocate and has to come all the way from Agra to argue her case in person, therefore, I award a sum of Rs. 25000/- towards litigation expenses. The amount shall be paid from the date of application, namely, CM No. 56-M-2004 filed under Section 24 of the Act. With these observations, applications, namely, CMM No. 77 of 2009 and CM No. 56-M of 2004 are disposed of.