SONAL SAXENA Vs. ASEEM SAXENA

JUDGEMENT

(1.) This appeal is directed against order dated 15.6.18 passed by the Family Court, Udaipur in Civil Misc. Case No.22/17, whereby the claim of the appellant for grant of maintenance pendente lite u/s 24 of the Hindu Marriage Act, 1955( in short "the Act of 1955") has been rejected observing that she is already being paid maintenance a sum of Rs.3,000/- per month pursuant to the order passed by the Judicial Magistrate No.2, Udaipur (South) under Section 23(1) of Protection of the Women from Domestic Violence Act, 2005 (for short "the Act of 2005"). However, the appellant has been held entitled for litigation expenses in lump sum a sum of Rs.5000/- and travelling expenses Rs.500/- for attending each date of hearing before the Family Court.

(2.) Learned counsel appearing for the appellant submitted that the respondent is earning more than Rs.1 lac which is substantiated from his income tax returns placed on record before the Family Court. Drawing the attention of the court to the communication dated 20.6.18 sent by the Income Tax Officer (CPIO), Ward 2(1), Bikaner furnishing the information to the appellant under the Right to Information Act, 2005, learned counsel submitted that the gross income of the appellant during the assessment year 2017-18 was Rs.15,38,491/- and net taxable income was Rs.13,50,140/- whereas, the annual income of the appellant as per the return filed for the assessment year 2018-19 was only Rs.2,61,544/-. Learned counsel submitted that the appellant has responsibility to upbring her daughter who is 6 years of age and thus, keeping in view the mandate of provisions of Section 24 of the Act of 1955, the Family Court was under an obligation to award reasonable maintenance to the appellant if not Rs.64,000/- per month as claimed by her. Learned counsel urged that of course, the maintenance being paid to the appellant under the Act of 2005 deserves to be adjusted against the amount of maintenance pendente lite to be determined by the Family Court but the award of maintenance under the Act of 2005 cannot be a ground for rejection of the claim of the spouse under the provisions of Section 24 of the Act of 1955. Learned counsel submitted that amount of Rs.5000/- awarded to the appellant towards the litigation expenses is too meagre and therefore, the same deserves to be enhanced by this court reasonably . Learned counsel submitted that appellant deserves to be awarded maintenance from the date of application seeking maintenance filed by her.

(3.) On the other hand, the counsel appearing for the respondent submitted that the respondent is suffering from a disease and presently not in position to work and thus, as a matter of fact, he has no reasonable source of income to maintain himself. Learned counsel submitted that the appellant is being paid maintenance awarded by the court of competent jurisdiction under the provisions of Act of 2005 and therefore, the application preferred claiming maintenance under the provisions of Section 24 of the Act of 1955 has rightly not been entertained by the Family Court. Learned counsel submitted that the maintenance awarded to the appellant by the court under the Act of 2005 is adequate and therefore, the appellant is not entitled for enhancement of the amount of maintenance. Learned counsel submitted that the litigation expenses a sum of Rs.5,000/- awarded is also adequate and therefore, the order impugned does not require any modification by this court. Learned counsel submitted that the amount of maintenance could be awarded to the appellant only from the date of order and not from the date of filing of the application.