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Judgment
Rajendra Menon, J.
This petition under Article 227 of the Constitution has been filed challenging an order passed by the Family Court, Gwalior vide Annexure P-1 on 5-11-2004 granting maintenance to the respondent in a application u/s 24 of the Hindu Marriage Act filed by the respondent. Maintenance @ Rs. 2000/- per month to respondent No. 1 wife and Rs. 1000/- per month to her seven years old son has been granted by the impugned order.
Petitioner and respondent were married on 19-11-95 at Gwalior. Because of certain reasons petitioner filed an application for dissolution of the marriage u/s 13 of the Hindu Marriage Act before the Competent Court of jurisdiction at Indore where petitioner is residing. Petitioner contended in his application u/s 13 Annexure P-2 that he has a B.A.M.S. Doctor having received Post Graduate Diploma in Management, he is a Regional Sales Manager in a Private Ayurvedic Hospital. Inter alia contending that respondent is also a B.A.M.S. Gold Medalist Doctor not willing to reside with him, proceedings have been initiated for divorce. Respondent wife appeared and moved an application before the Indore Bench of this Court seeking transfer of the proceedings to Gwalior. M.C.C. No. 1191/2003 for transfer was allowed and the matter has been transferred to the Family Court at Gwalior. During the pendency of the proceedings inter alia on the ground that she is unemployed unable to maintain herself and her seven years old son, respondent wife filed an application Annexure P-4 u/s 24 of the Hindu Marriage Act seeking a sum of Rs. 10,000/- as maintenance and litigation expenses for herself and her son. This application was opposed by the petitioner, petitioner filed his reply and stated that for carrying out her practise respondent had issued certain advertisement in a newspaper "Dainik Bhaskar" indicating that she has established a clinic for consultation purpose at Gwalior namely "Charak Ayurvedic and Research Centre". On the ground that respondent is earning and is capable of maintaining herself petitioner resisted the claim of respondent wife. Respondent wife also filed counter affidavit indicating that even though she had made endeavour to start her own private practise in the year 2002 but she could not established her practise, she was not even able to get the rent for maintaining the Chamber and, therefore, she has closed the Centre opened by her and at present is unemployed unable to maintain herself and her child. Considering the rival contentions made by both the parties, learned Court has allowed the application for maintenance to the extent of Rs. 2000/- for the wife and Rs. 1000/- for the Child. This order is challenged and inviting my attention to various documents available on record, Shri Pateria, learned Counsel argued that it was pointed out before the Court that petitioner is also unemployed, he has tendered his resignation from the establishment where he was working and ignoring all these pleadings, order passed for maintenance is said to be illegal. In inviting my attention to certain observations made by a Bench of this Court in the case of Smt. Mamta Jaiswal Vs. Rajesh Jaiswal, , Shri Pateria argued that when the wife is duly qualified and is able to maintain herself and is incapable of maintaining herself by sitting idle without doing any service, such a lady is not entitled for maintenance for herself. Inter alia contending that petitioner is also unemployed and his application for claiming maintenance against the wife is pending, learned Counsel argued that the order is unsustainable.
Smt. Alka Dixit, learned Counsel appearing for the respondent wife refuted the aforesaid and submitted that a reasonable order of maintenance passed exercising discretion by the learned Court does not call for any interference by this Court. Placing reliance on two orders passed by this Court in the case of Sharad Kumar Gotee v. Mangal Singh 1987 (I) MPWN 220 and Smt. Yashoda Bai v. Omkar 1987 (I) MPWN 43. Smt. Dixit argued that petitioner is liable to pay maintenance and, therefore, no case of interference is made out,
I have heard learned Counsel for the parties and perused the records.
It was the case of the respondent wife that petitioner is a Regional Sales Manager in a Private Ayurvedic Company and is earning Rs. 25,000/- per month. In his application filed u/s 13 of the Hindu Marriage Act Annexure P-2 petitioner has indicated in Para 1 that he is a B.A.M.S. Doctor having Post Graduate Diploma in Management, he is working as Regional Manager in a Private Ayurvedic Company. These factors have been considered by the Court below and it has been held by the learned Court that merely because petitioner contends that he has resigned from the job he can not seek exemption from payment of maintenance. Affidavits and documents filed have been taken note of and after evaluating the material available on record, impugned order has been passed by the learned Court. Question is as to whether any interference in the matter can be made by this Court in a petition under Article 227 of the Constitution.
The judgment in the case of Munnibai Rathore Vs. Jagdish Rathore, , relied upon by Shri Arun Pateria is clearly distinguishable. That was a case for enhancement of the compensation awarded and while rejecting the claim for enhancement certain observations have been made by the learned Court with regard to right of an educated spouse to seek maintenance without making any efforts to secure employment and by remaining idle. The question of granting maintenance and the claims to be considered for dealing with such of the application u/s 24 has been considered by a Bench of this Court in the case of Munni Bai (supra), and it has been held by this Court that while determining the claim of maintenance u/s 24 of the Hindu Marriage Act, the facts to be kept in mind is as to whether the applicant has any independent means to maintain himself or herself. A good cause for depriving the applicant right to maintenance is availability of an assured independent income. After considering in detail the requirement of Section 24 in Paras 26 to 30 of the aforesaid judgment, it has been held by this Court that the availability of independent means of livelihood of the wife has to be taken note of. In the present case, the facts as marshalled indicates that even though respondent wife had make endeavour for starting her own consultation clinic had made efforts for establishing the same. The affidavit filed by her indicates that she could not succeed in the same and having made efforts, she has no independent source of income for maintaining herself and her seven years old son. Learned Family Court has marshalled all these materials and after taking note of the rival contentions and the affidavit filed by each other has recorded a finding that respondent wife is unemployed, unable to maintain herself and her child. Petitioner is a qualified Doctor and can maintain the wife and child for which Rs. 3000/- have been assessed. It has been held by the learned Court that petitioner was a Regional Sales Manager earning Rs. 25,000/- per month, he can not be exonerated from the liability of maintaining his wife and child only on the ground that now he has resigned from the job. Holding him to be well qualified, learned Court has directed for grant of maintenance by the impugned order.
This Court while exercising limited jurisdiction under Article 227 of the Constitution does not sit over the findings recorded by the Inferior Court or Tribunal as if it is exercising appellate jurisdiction, in the matter by marshalling the evidence, this Court can not record a finding different from the one recorded by the Family Court by re-appreciating the evidence. Interference is permissible only if on the basis of the material available on record finding recorded by the Court below can be termed as perverse to such an extent that no prudent man on reasonable consideration would arrive at such of the finding or the finding is contrary to the well settled legal principles. On marshalling the material available on record the views expressed by the learned Family Court is one of the possible views that can be arrived at and when this is the position, this Court has to be uphold the aforesaid view even if the other view as canvassed by Shri Arun Pateria could be one of the possible view.
A reasonable finding recorded by the Family Court on the basis of the due appreciation of the evidence and material available on record can not be substituted by this Court by a different finding as if this Court is exercising appellate jurisdiction over the findings of the Family Court. As the impugned order is reasonable in accordance with law, it is not a fit case where interference in the matter in a petition under Article 227 of the Constitution is called for. The findings recorded with regard to inability of respondent wife to maintain herself and her child is a reasonable finding based on material available on record which can not be termed as perverse or erroneous to such an extent that interference in the matter is called for in these proceedings.
Accordingly, finding no ground to interfere in the matter, petition stands dismissed without any order as to costs.