Even if maintenance is
being paid under Section 125 Cr.P.C. the same though can
be taken into consideration while granting maintenance
pendente lite under Section 24 of the Hindu Marriage Act,
yet it cannot be the sole ground for declining such
maintenance. 1
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
CMPMO No. 268 of 2006.
Decided on: 3.1.2013.
Neelam Kalia W/o Sh. Rajesh Kali,
Versus
Rajesh Kalia S/o Sh. Suraj Parkash Kalia,
Citation;AIR 2013 H M76
The parties to the present petition are wife and husband,
respectively. Owing to marital discord between them, the husband
has filed a petition for grant of divorce, which is pending in the court
of the learned Addl. District Judge, Una, H.P., though further
proceedings therein stand stayed, vide order dated 8.10.2007,
passed by this court in this petition.
2. It was during pendency of the aforesaid divorce
proceedings being HMA No. 3 of 2005, titled Rajesh Kalia Vs.
Neelam Kalia that the wife moved an application under Section 24 of
the Hindu Marriage Act, 1955 for grant of maintenance pendente lite
@ ` 20,000/- per month, besides claiming a sum of ` 50,000/- as
expenses of the proceedings. However, the learned trial
Judge, vide order dated 19.8.2006, though allowed a sum of
` 5,000/- as litigation expenses, yet declined the prayer for
maintenance pendente lite on the ground that the wife was
already getting monthly maintenance of ` 3,000/- under
Section 125 of the Code of Criminal Procedure, 1973 (in
short ‘Cr.P.C.’), as per orders of the learned Metropolitan
Magistrate, Delhi.
3. While moving the application for maintenance
pendente lite, the wife stated that at the relevant time
monthly income of the husband from all sources as per
details given in para 3 of the application, was ` 77,500/-.
Though notice of the application was issued to the husband,
yet he failed to file any reply.
4. It was during pendency of the present petition in
this court that efforts for amicable settlement between the
parties were made by a coordinate Bench of this court.
However, the same could not succeed. Vide order dated
9.5.2011 the husband was directed to file an affidavit with
regard to his income and allied matters. The affidavit stands
filed. In rebuttal, the wife has also filed counter affidavit.
5. Without going into an elaborate discussion of the
respective contentions on behalf of the parties with regard
to the income of the husband, suffice it to say that the
petitioner, who is a married lady, is living separately in the
National Capital City of Delhi along with minor daughter of
the parties, who is stated to be aged 14 years and a student
of 10th standard. The husband as per available records,
besides being a ‘Baridar’ of Chhinmastika Temple,
Chintpurni, District Una, H.P., is also possessed of other
movable and immovable properties.
6. In the facts and circumstances of the case and on
an overall view of the matter, I am more than satisfied that
the impugned order dated 19.8.2006 cannot be sustained,
as it is by now fairly settled that even if maintenance is
being paid under Section 125 Cr.P.C. the same though can
be taken into consideration while granting maintenance
pendente lite under Section 24 of the Hindu Marriage Act,
yet it cannot be the sole ground for declining such
maintenance. The learned trial Judge has overlooked this
aspect, which goes to the root of the matter.
7. Accordingly, while taking all the relevant factors
into consideration and on an overall view of the matter, the
husband is directed to pay monthly pendente lite
maintenance of ` 5,000/- each to the petitioner and minor
daughter of the parties, totaling ` 10,000/- per month w.e.f.
1.1.2013. However, since admittedly the wife and the child
are already getting monthly maintenance of ` 3,000/- per
month, as per orders of the learned Metropolitan Magistrate,
Delhi, as noticed herein above, the same would be adjustable
against the amount of monthly maintenance pendente lite of
10,000/- payable under this judgment, meaning thereby
that in addition to the said sum of ` 3,000/- payable under
the orders of the learned Metropolitan Magistrate, Delhi, the
wife and the minor daughter of the parties shall get ` 3,500/-
each from the husband as maintenance pendente lite on
and w.e.f. 1.1.2013. In addition to the above, the wife shall
also be paid an additional sum of ` 5,000/- by the husband
towards expenses of the proceedings.
8. The petition stands disposed of. As a result, all
interim orders shall stand vacated. The parties through their
learned counsel are directed to appear before the learned
trial court on 25th February, 2013.
(V.K. Sharma)
Judge
3rd January, 2013.
being paid under Section 125 Cr.P.C. the same though can
be taken into consideration while granting maintenance
pendente lite under Section 24 of the Hindu Marriage Act,
yet it cannot be the sole ground for declining such
maintenance. 1
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
CMPMO No. 268 of 2006.
Decided on: 3.1.2013.
Neelam Kalia W/o Sh. Rajesh Kali,
Versus
Rajesh Kalia S/o Sh. Suraj Parkash Kalia,
Citation;AIR 2013 H M76
The parties to the present petition are wife and husband,
respectively. Owing to marital discord between them, the husband
has filed a petition for grant of divorce, which is pending in the court
of the learned Addl. District Judge, Una, H.P., though further
proceedings therein stand stayed, vide order dated 8.10.2007,
passed by this court in this petition.
2. It was during pendency of the aforesaid divorce
proceedings being HMA No. 3 of 2005, titled Rajesh Kalia Vs.
Neelam Kalia that the wife moved an application under Section 24 of
the Hindu Marriage Act, 1955 for grant of maintenance pendente lite
@ ` 20,000/- per month, besides claiming a sum of ` 50,000/- as
expenses of the proceedings. However, the learned trial
Judge, vide order dated 19.8.2006, though allowed a sum of
` 5,000/- as litigation expenses, yet declined the prayer for
maintenance pendente lite on the ground that the wife was
already getting monthly maintenance of ` 3,000/- under
Section 125 of the Code of Criminal Procedure, 1973 (in
short ‘Cr.P.C.’), as per orders of the learned Metropolitan
Magistrate, Delhi.
3. While moving the application for maintenance
pendente lite, the wife stated that at the relevant time
monthly income of the husband from all sources as per
details given in para 3 of the application, was ` 77,500/-.
Though notice of the application was issued to the husband,
yet he failed to file any reply.
4. It was during pendency of the present petition in
this court that efforts for amicable settlement between the
parties were made by a coordinate Bench of this court.
However, the same could not succeed. Vide order dated
9.5.2011 the husband was directed to file an affidavit with
regard to his income and allied matters. The affidavit stands
filed. In rebuttal, the wife has also filed counter affidavit.
5. Without going into an elaborate discussion of the
respective contentions on behalf of the parties with regard
to the income of the husband, suffice it to say that the
petitioner, who is a married lady, is living separately in the
National Capital City of Delhi along with minor daughter of
the parties, who is stated to be aged 14 years and a student
of 10th standard. The husband as per available records,
besides being a ‘Baridar’ of Chhinmastika Temple,
Chintpurni, District Una, H.P., is also possessed of other
movable and immovable properties.
6. In the facts and circumstances of the case and on
an overall view of the matter, I am more than satisfied that
the impugned order dated 19.8.2006 cannot be sustained,
as it is by now fairly settled that even if maintenance is
being paid under Section 125 Cr.P.C. the same though can
be taken into consideration while granting maintenance
pendente lite under Section 24 of the Hindu Marriage Act,
yet it cannot be the sole ground for declining such
maintenance. The learned trial Judge has overlooked this
aspect, which goes to the root of the matter.
7. Accordingly, while taking all the relevant factors
into consideration and on an overall view of the matter, the
husband is directed to pay monthly pendente lite
maintenance of ` 5,000/- each to the petitioner and minor
daughter of the parties, totaling ` 10,000/- per month w.e.f.
1.1.2013. However, since admittedly the wife and the child
are already getting monthly maintenance of ` 3,000/- per
month, as per orders of the learned Metropolitan Magistrate,
Delhi, as noticed herein above, the same would be adjustable
against the amount of monthly maintenance pendente lite of
10,000/- payable under this judgment, meaning thereby
that in addition to the said sum of ` 3,000/- payable under
the orders of the learned Metropolitan Magistrate, Delhi, the
wife and the minor daughter of the parties shall get ` 3,500/-
each from the husband as maintenance pendente lite on
and w.e.f. 1.1.2013. In addition to the above, the wife shall
also be paid an additional sum of ` 5,000/- by the husband
towards expenses of the proceedings.
8. The petition stands disposed of. As a result, all
interim orders shall stand vacated. The parties through their
learned counsel are directed to appear before the learned
trial court on 25th February, 2013.
(V.K. Sharma)
Judge
3rd January, 2013.
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