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Judgment
Jyotsna Rewal Dua, J
Petitioner, aged 76 years, is aggrieved against the order dated 15.12.2023 passed by the learned Family Court, granting interim maintenance at the
rate of Rs.10,000/- per month to the respondent, aged about 70 years.
Facts:-
2(i). Respondent filed a civil suit on 01.11.2021 under Section 18 of the Hindu Adoption and Maintenance Act, 1956 against the petitioner. Her case
was that:-
(a). Parties to the civil suit are legally married. Their marriage was solemnized about 54 years ago. They lived together as husband and wife. They were blessed with a
daughter, who is now married.
(b). Few years after marriage, the petitioner became indifferent to the respondent. He brought another lady in his house despite protest by the respondent. Petitioner
started maltreating and abusing the respondent without any reasonable cause. Ever since the year 1980, petitioner had been living at Chandigarh with the aforesaid
lady. The two have a son and a daughter out of their relationship.
(c). Petitioner did not make any provision for maintenance of the respondent and her daughter despite his having sufficient sources of income. The respondent had
been looking after and managing the landed property of the petitioner. She brought up, educated and got married her daughter by doing hard labour of her own.
Petitioner did not care for their welfare. He had been leading a luxurious life with his new formed family at Chandigarh.
(d). Respondent has now become very old. She remains sick and suffers from several ailments & other old age related diseases. It has become very difficult for her to
do any work. She has no source of income for her subsistence and day-to-day requirements. The petitioner has not made any provision of maintenance for her
upkeep. Petitioner has neglected, deserted and treated the respondent with cruelty.
(e). Respondent is entitled for maintenance from the petitioner, who had been serving in Army. As a retired Armed Force personnel, the petitioner is getting a
monthly pension of Rs.40,000/-. Besides this, the petitioner is a property dealer doing his business at Chandigarh and owns several buildings at Chandigarh. He has
rented out some of his properties. The petitioner also has moveable and immovable properties in Village Kapahi, Tehsil Sundernagar, District Mandi. His income from
all sources is more than Rs.3 Lakh per month.
Respondent also alleged that she had moved an application under Section 12 of the Protection of Women from Domestic Violence Act, 2005, which is pending
disposal in the competent Court of Law. Alleging that the petitioner had not made any provision for maintenance of the respondent despite her repeated requests,
prayer was made in the civil suit to direct the petitioner to pay her a sum of Rs.25,000/- per month as maintenance. Respondent also demanded a sum of Rs.5 Lakhs in
lump sum w.e.f. the year 1980. Alongwith the civil suit, an application for grant of ad-interim injunction under Section 151 of the Civil Procedure Code was also
moved.
2(ii). In the written statement, the petitioner admitted that marriage between the parties was solemnized in accordance with law. He, however,
asserted that marriage had been dissolved with the consent of parties on 18.01.1975. The parties thereafter never lived together as husband and wife.
Petitioner also admitted that he had been serving in Indian Army and superannuated in the year 1987. According to the petitioner, the respondent had
been living separately after divorce. She had left her right of maintenance, hence, the petitioner was not responsible for her maintenance, though she
was allowed to live in the old house in Village Ropari. Petitioner also denied the allegations of ill treatment made against him by the respondent. He
denied that his monthly pension was Rs.40,000/- or that his monthly income was Rs.3 Lakhs.
2(iii). On consideration of the pleadings and the material on record, learned Family Court vide order dated 15.12.2023, granted interim maintenance of
Rs.10,000/-per month to the respondent from the date of filing of the application.
It is in the aforesaid background that the petitioner has assailed the order dated 15.12.2023.
Submissions:-
The matter was listed on 15.03.2024, when following order was passed:-
“CMP No.2879/2024 & CMPMO No.125/2024
Heard.
The petitioner has taken exception to an order dated 15.12.2023 passed by learned Family Court awarding interim maintenance @ Rs.10,000/- per month to
the respondent.
While awarding the maintenance amount, learned Trial Court has taken cognizance of the fact that the marriage between the parties was duly solemnized in
accordance with law. It was also observed that the contention of the petitioner of there being a legal separation between the parties was not demonstrated at that
stage as he had failed to produce any decree of divorce passed by the Court of law in his favour. The petitioner is stated to have retired from Army, having two
married children from his second marriage.
Learned Senior Advocate for the petitioner submits that the only endeavour of the petitioner in this petition is to settle the matter with the respondent amicably
as the parties are not living in matrimonial relationship w.e.f. 18.01.1975. The respondent has claimed maintenance from the petitioner by filing a Civil Suit
under Section 18 of the Hindu Adoption and Maintenance Act on 01.11.2021. Learned Senior Advocate further submits that there are some other issues pending
adjudication between the parties in different Courts. Efforts are being made for settling these issues amicably.
In view of the above submissions made by learned Senior Advocate, let notice be issued to the respondent, returnable for 26.04.2024, on taking steps within a
week.â€
Parties thereafter were referred to mediation. The mediation efforts remained unsuccessful.
3(i). Learned counsel for the petitioner has raised two-fold grounds. Firstly, that the respondent in her application for grant of ad-interim relief, had not
made any specific prayer for grant of interim maintenance. Without there being any prayer in the application, interim maintenance could not have been
allowed in her favour. Secondly, it was submitted that maintenance amount of Rs.10,000/- per month as awarded by the learned Family Court is on the
higher side.
3(ii). Learned counsel for the respondent defended the impugned order and submitted that the application moved by the respondent for grant of ad-
interim injunction inherently contained the prayer for grant of interim maintenance as well. It was also submitted that the amount of maintenance
awarded by the learned Family Court was justified considering the age of the respondent and her requirements.
I have heard learned counsel on both sides and considered the case file. My observations are as under:-
4(i). Claim of Interim maintenance:-
4(i)(a). It is significant to notice that the petitioner had not disputed solemnization of marriage between the parties, though according to the petitioner,
marriage between them was dissolved with their consent on 18.01.1975. Admittedly, no document has been placed on record by the petitioner in
support of his contention about there being divorce between the parties. Therefore, at this stage, it has to be believed that the respondent is lawfully
wedded wife of the petitioner.
4(i)(b). It is also the admitted case of the parties that on account of matrimonial discord between them, the respondent is staying away from the
petitioner.
4(i)(c). In Rajnesh Versus Neha and another (2021) 2 SCC 324, it has been held by the Hon’ble Apex Court that an able-bodied husband must
be presumed to be capable of earning sufficient money to maintain his wife and children. Onus is on the husband to establish with necessary material
that there are sufficient grounds to show that he is unable to maintain the family and discharge his legal obligations for reasons beyond his control.
4(i)(d). The contention raised by learned counsel for the petitioner that in her application for grant of ad-interim injunction, the respondent did not seek
interim maintenance, is not tenable. A holistic reading of the application makes it evident that the grievance of the respondent had been about her
having not been provided any maintenance by the petitioner. In fact, this is her grievance in the civil suit as well. The respondent has very
categorically set up the case in her application that:- She is an old lady, remains sick, suffers from many problems like Blood Pressure and other old
age diseases; It is difficult for her to do any work; She has no source of income for her subsistence and day-to-day requirements; She has not been
provided any maintenance by the petitioner, who has neglected, deserted and treated her with cruelty. Just because towards the end of her application,
she did not use the words “to direct the petitioner to pay her maintenance†would not mean that prayer for maintenance was not made in the
application. It is writ large on perusal of the application as also on the perusal of the civil suit instituted by her under Section 18 of the Hindu Adoption
and Maintenance Act. The power to grant interim relief of such nature is implicit in the grant of main relief. In the given facts, considering the
pleadings of the respondent, the Court had the power to award interim maintenance pending adjudication of the civil suit for maintenance.
Hon’ble Apex Court in Rajnesh Versus Neha and another (2021) 2 SCC 324 has also held that “HAMA is a special legislation which was
enacted to amend and codify the laws relating to adoption and maintenance amongst Hindus, during the subsistence of the marriage. Section 18
provides that a Hindu wife shall be entitled to be maintained by her husband during her lifetime. She is entitled to make a claim for a separate
residence, without forfeiting her right to maintenanceâ€. Under Section 18(2), the husband has the obligation to maintain his wife, even though she
may be living separately. In the instant case, the matrimonial relation between the parties still subsists as there is no document on record to show that
the parties have been divorced. Therefore, the petitioner is under legal obligation to pay maintenance to the respondent.
The point is answered accordingly.
4(ii). In respect of the submission made that maintenance amount awarded by the learned Family Court is on higher side, it may be noticed that in the
instant case, as has been observed by the learned Family Court, in the affidavit of assets and liabilities, the petitioner has claimed his monthly pension
as Rs.32,000/-. He had not revealed any detail of immovable property owned by him. This was despite the fact that the respondent had placed on
record an order passed by the learned Senior Civil Judge, Sundernagar, District Mandi reflecting that the petitioner had been a beneficiary of an
injunction order in respect of the land measuring 17-14-08 bighas in Mohal Kapahi, Tehsil Sundernagar, District Mandi, which he claimed (therein) to
be in his ownership and joint possession. It was clearly evident that the petitioner had not revealed the details of his immovable properties.
In Rajnesh Versus Neha and another (2021) 2 SCC 324, Hon’ble Apex Court held that if the husband does not disclose the exact amount of his
income, adverse inference can be drawn by the Court. It was also held that rationale of granting maintenance from the date of application finds its
roots in the object of enacting maintenance legislations, so as to enable the wife to overcome the financial crunch, which occurs on separation from
husband.
The respondent in the instant case is aged more than 70 years. She has pleaded that she is suffering from several old age related problems and also
certain diseases. She has also pleaded that she has no one to fall back upon for her day-to-day needs. She has no source of income. In the given facts
and circumstances, award of maintenance at the rate of Rs.10,000/- per month cannot be said to be at the higher side considering the fact that the
petitioner is a retired Armed Forces personnel, who has claimed his monthly pension to be Rs.32,000/-, but has not produced any evidence in support
thereof and has not disclosed the complete details of his immovable properties.
For the foregoing reasons, no interference is called for in the impugned order dated 15.12.2023 passed by the learned Family Court, directing the
petitioner to pay interim maintenance at the rate of Rs.10,000/ - per month to the respondent. The instant petition, therefore, lacks merit and is
accordingly dismissed alongwith pending miscellaneous application(s), if any.
It is clarified that the observations made hereinabove shall remain confined only to the adjudication of the present petition. Learned Family Court shall
decide the civil suit on its own merits without being influenced by the observations made above.