Naresh Kumar vs Anita Devi

Jyotsna Rewal Dua, J

Petitioner challenges an order passed on 6.8.2019, under Section 24 of Hindu Marriage Act, whereby he has been directed to pay maintenance allowance @ Rs.10,000/­ per month for the welfare and education of his children, who are living with their mother/respondent.

2(i) The parties are husband and wife. They have two children. Both the petitioner as well as respondent are admittedly working and employed as Head­Constables. Petitioner is working as Head­constable at SSB Camp at Sapri, whereas respondent­wife is employed as Head­Constable in Himachal Pradesh Police Department. Respondent­wife is living separately from the husband alongwith their two minor sons.

2(ii) The petitioner preferred a divorce petition against the respondent under Section13[1][ia] and 13[1][ib] of the Hindu Marriage Act, 1955. Respondent moved an application under Section 24 of the Hindu Marriage Act, 1955 for grant of maintenance pendente­lite and litigation expenses on the ground that she has been bearing all her expenses as well as expenses on the up­bringing of couples' children without any financial assistance from her husband/petitioner. It was mentioned in the application that her husband, employed as Head­Constable at SSB Camp at Sapri, though earning handsome salary yet is not contributing any amount either towards meeting her needs or towards necessities of their children. Accordingly, maintenance pendente­lite of Rs.20,000/­ and litigation expenses to the tune of Rs.25,000/­ was claimed.

2(iii) In response to this application, the petitioner/husband took shelter behind his wife's employment as Head­Constable. Alleging that his wife was earning Rs.60,000/­ permonth and living alongwith their children in a house constructed by him, the husband denied his responsibility to maintain his wife and their minor children.

2(iv). Considering the pleadings and the case put forth by the parties, learned Additional District Judge(II) Kangra at Dharamshala, vide order dated 6.8.2019 directed the petitioner to pay maintenance allowance @ Rs.10,000/­ per month (from the date of application) for the welfare and education of couples' children, who were living with their mother alongwith a sum of Rs.12,000/­ as litigation expenses. Aggrieved, the petitioner has approached this Court.

Learned counsel for the petitioner contended that in light of notification dated 10.01.1983 issued by the High Court, the respondent­wife alongwith her application moved under Section 24 of the Hindu Marriage Act was required to file an affidavit clearly stating her average monthly income, source of the income, particulars of the movable/immovable properties owned by her, details of her liabilities, if any, alongwith the names, age and number of dependents upon her. Learned counsel further contended that the application moved by the respondent­wife seeking maintenance pendente­lite did not disclose these material particulars, therefore, her application having not been filed in consonance with the notification dated 10.01.1983, could not have been considered by the learned Trial Court. Learned counsel further highlighted that the petitioner though is gainfully employed but has to incur expenditure on the treatment of his aged & infirm mother. He also has to repay a loan amount to the bank. Therefore, the order passed by learned Court below directing him to pay maintenance amount @ Rs.10,000/­ per month is not justified and is liable to be set aside.

Learned counsel for the respondent supported the impugned order by submitting that though the respondent/wife is working as Head­Constable in Himachal Pradesh Police but that fact on its own cannot give any right to the petitioner to completely walk away from his liabilities towards her and towards their children. The children are residing with the respondent­wife. The petitioner is required to jointly contribute towards up­bringing, welfare and education of their minor children.

Learned Trial Court vide impugned order dated 6.8.2019 has allowed the maintenance allowance of Rs.10,000/­ and that too only for the welfare and education of the children. Respondent may not have furnished specific particulars about her income, source of income or the number of dependents upon her etc. yet the fact remains that she has not denied her employment as Head­Constable in the State Police Department. It is on this count that she has not been allowed any maintenance for herself by the learned Court below. The order has been accepted by her. It is also admitted case of the parties that the children are residing with their mother. Petitioner is also employed as Head­Constable and as per salary slip for the month of June 2019 placed on record by him, earns a gross income of Rs.42,800/­. Even assuming that he has to look­after his ailing mother then also he cannot escape his liabilities & responsibilities to look­after the well being of his children. Petitioner owes legal, social & moral responsibility to lookafter the needs of his children. Respondent­wife may be earning but in the given facts and circumstances that alone will not absolve the petitioner from jointly contributing alongwith his wife towards welfare of his children. It is because the respondent wife is earning and contributing towards raising their children that the husband has been directed to pay maintenance only for the welfare of his two minor children and that too @ Rs.10,000/­ per month as his part of contribution or else he might have been directed to shell out more from his pocket. Rs.10,000/­ per month maintenance amount ordered by learned Trial Court in the facts and circumstances of the case cannot said to be excessive or unreasonable. Both the children are studying in schools and residing with their mother. The maintenance amount does not require any reduction.

Therefore no interference is called for in the order dated 6.8.2019 passed by learned Additional District Judge [II] Kangra at Dharamshala and accordingly the present petition fails and is dismissed. In CMP No.2248/2020, the respondent is held entitled to Rs.10,000/­ as litigation expenses for the present petition and is also permitted to claim this amount alongwith maintenance amount while enforcing the impugned order. Pending miscellaneous applications also stand disposed of.

Before parting, it needs to be emphasized that the Himachal Pradesh High Court­Hindu Marriage and Divorce Rules, 1982 were framed on 10.01.1983. These came into force with effect from the date of their publication in the Himachal Pradesh Rajpatra Extra Ordinary on 5.2.1983. Rule 16 of these Rules reads as under:­

"16. Applications for alimony and maintenance­ Every application for maintenance pendente lite, permanent alimony and maintenance, or for custody, maintenance and education expenses of minor children, shall be supported by an affidavit and shall state:

(a) the average monthly income of the petitioner;

(b) the sources of their income;

(c) particulars of other movable and/or immovable property owned by them jointly or severally;

(d) the details of liabilities if any, along with the number of their dependents, if any, and the names and ages of such dependents."

Present case is an indication that the above extracted Rule is not being adhered to. Insistence on the parties to comply the Rule, directing them to furnish requisite information in the nature of affidavits in the specified format can curb delays in disposal of the applications. Therefore it is directed that concerned Courts dealing with applications for maintenance pendente lite, permanent alimony, custody, maintenance & education expenses of minor children, shall insist upon the parties to furnish affidavits as required under Rule 16 of the Himachal Pradesh High Court­Hindu Marriage and Divorce Rules, 1982. Learned Registrar General of this Court shall ensure conveying the direction to all the concerned Courts in the State of Himachal Pradesh for compliance.