Ruchi Srivastava vs Principal Family Court and Another

Sudhir Agarwal, J.—The Petitioner Ruchi Srivastava has filed present writ petition seeking a writ of certiorari for quashing the order dated 2nd April, 2010 (Annexure 8 to the writ petition) passed by Family Court, Allahabad u/s 24 of Hindu Marriage Act, 1955. in Family case No. 673 of 2008. The Court below has awarded maintenance of Rs. 2,000/-per month and litigation expenses to the tune of Rs. 5,000/-from the date of order. The Petitioner had claimed maintenance @ Rs. 12,500/-per month and litigation expenses Rs. 10,000/-. She has also prayed that maintenance be allowed from the date of application i.e. 12th February, 2009. Since the claim of the Petitioner as such has not been accepted, hence this writ petition.

The marriage of Petitioner was solemnized with Respondent No. 2 Sri Krishna Gopal on 24th November, 2007 at Allahabad according to Hindu rituals. The Respondent No. 2 filed a petition u/s 12 of Hindu Marriage Act vide plaint dated 30th July, 2008 seeking declaration of marriage as void. The ground taken in the said petition is that the Petitioner was a mental patient much before her marriage and concealing this fact, marriage was solemnized hence it is liable to be declared void. In the said petition, Petitioner was impleaded as opposite party through Sri Satish Chandra Srivastava, his father and guardian. The Petitioner''s father filed an application praying that he be relieved from guardianship of opposite party since Petitioner is quite hale and hearty and graduate in English literature and has wrongly been impleaded through her father though after marriage, the husband ought to be the guardian. The said application was filed on 12th February, 2009. The application was rejected by Family Court by order dated 2nd September, 2009 observing that medical record of Petitioner shows that she is suffering from Schizophrenia and therefore is not capable to effectively place her defence before the Court. The order dated 2nd September, 2009 was challenged in writ petition No. 53455 of 2009 but the Court did not interfere except of clarifying vide judgment dated 14th October, 2009 that observations made thereunder shall not influence the Court in deciding the petition itself on merits. Another application was filed by the Petitioner on 12th February, 2009 seeking maintenance and litigation expenses. The said application prays for grant of Rs. 10,000/-for litigation expenses and Rs. 5,000/-per month towards maintenance. The application was rejected on 13th January, 2010 observing that the same having not been filed through the guardian was not maintainable. Thereafter the Petitioner filed another application No. 30A through her father on 20th March, 2010. It is this application which has been disposed of by means of the impugned order.

Sri S.N. Dubey, learned Counsel for the Petitioner submitted that Petitioner has been deserted by Respondent No. 2 without any just cause since 25th July, 2008. She has No. property moveable or immoveable and No. source of income. Her father is retired employee having liability of wife and two unmarried daughters and therefore Petitioner is not capable of maintaining herself while Respondent No. 2 is running an NGO and also publishing a Hindi monthly magazine "Sampark Apke Sath" and his income is more than Rs. 25,000/-per month. It is contended that in the circumstances, particularly considering financial condition of the Petitioner''s father family, she ought to be allowed appropriate amount for maintenance and the Court below in awarding just a meagre sum of Rs. 2,000/-, has committed error apparent on the face of record, which justify modification of the said order.

The Respondent No. 2 has filed a counter affidavit in which basic facts are not in dispute. However, it is stated therein that monthly income of Respondent No. 2 is less than Rs. 75,000/-p.a. from consulting projects. So far as the NGO is concerned it is said that he is a member of NGO engaged in social work but it is on the basis of No. profit. So far as the magazine is concerned, it is said that publication thereof has been closed since January, 2009. Respondent No. 2, however, has not given details of his educational qualification and his assets etc.

Sri A.K. Mehrotra, learned Counsel appearing for Respondent No. 2 submitted that Respondent No. 2 is having No. regular employment but is working as a free lance consultant earning some amount which could not justify enhancement of maintenance amount in any manner.

In the rejoinder affidavit filed by the Petitioner it is stated that Respondent No. 2 is making contradictory statement, inasmuch as, in para 23 in the counter affidavit he states that he is member of NGO while in para 24 of the counter affidavit he states that he is Secretary of NGO. Further he has not placed anything on record to show that publication of magazine has been closed by him since January, 2009. The estimated income of Respondent No. 2 claimed by him being Rs. 75,000/-per annum has been disputed by stating that Respondent No. 2 is incurring expenses about Rs. 2,500/-per month on mobile phone and therefore his assertion that his annual income is Rs. 75,000/-only is palpably incorrect. It is also said that due to cruel behaviour of Respondent No. 2, Petitioner also suffered trauma of abortion.

I have heard learned Counsel for the parties.

So long as marriage of Petitioner with Respondent No. 2 continue, responsibility of Respondent No. 2 to maintain the Petitioner cannot be disputed. This aspect has been recognized by the Court below also and that is how it has allowed maintenance of Rs. 2,000/-per month to the Petitioner. The Respondent No. 2 has not felt aggrieved by the said order as it is nobody''s case that he has also challenged the order impugned in this writ petition before appropriate forum. Now the only question remain to be considered whether the amount of maintenance allowed by the Court below is justified or not.

The Respondent No. 2 has not given any details about his assets, properties etc. in order to demonstrate that he is not having sufficient means to provide appropriate amount of maintenance to the wife. The onus lie on the husband to show that his financial or otherwise status and position does not justify the amount of maintenance, as claimed by his wife. Detailed facts in this regard are lacking in the pleadings of Respondent No. 2. The Petitioner on the contrary has demonstrated that Respondent No. 2 was paying expenses towards only one of the item namely communication i.e. mobile bill to the tune of Rs. 2,500/-per month which comes to Rs. 30,000/-per annum. With this living standard, it is difficult to believe that husband''s income or position is not such so as to provide an adequate sum towards maintenance to his wife particularly when he himself claimed that the wife is ill and needs medical treatment also, though this fact as such has been denied by the Petitioner, and is matter of adjudication before the Court below. Allowing maintenance at the rate of Rs. 2,000/-per month means that Court below has find less than Rs. 70/-per day sufficient for sustenance of the Petitioner. Both the parties belong to at least a middle class average family. Since in absence of further details it is difficult to appreciate whether their status falls within lower/middle class or upper middle class but in any case they are much above the people who are living just above poverty line. When the rate of inflation is in double digits, it would be wholly unjust to accept an individual to sustain itself appropriately and in a honourable manner with a meagre sum of Rs. 70/- per day.

In my view, considering all the facts and circumstances of the case, amount of maintenance awarded to the Petitioner deserve to be enhanced after considering the fact that the Respondent No. 2 has not given sufficient details to disclose his status, position, level of his earning etc. though the Petitioner has stated about higher earning on the part of Respondent No. 2. I, therefore, find it appropriate to direct Respondent No. 2 to pay maintenance of Rs. 5,000/-per month and litigation expenses to the tune of Rs. 10,000/-. The maintenance shall be payable with effect from the date of application filed by the Petitioner before Court below. The impugned order dated 2nd April, 2010 is modified accordingly.

The writ petition is allowed partly in the manner as directed above. The Petitioner shall also be entitled to cost before this Court which I quantify to Rs. 3,000/-against Respondent No. 2.