Smt. Shakshi vs Vijay Kant

Swatanter Kumar, J.—Mr. Vijay Kant, respondent herein, who was married to Smt. Shakshi on 15.11.1987 at Karnal in accordance with the Hindu ritual filed a petition on 27th September 1994 praying for a decree of divorce u/s 13 of the Hindu Marriage Act. The learned District Judge while declining to pass the decree for divorce passed a decree of judicial separation u/s 10(1) of the Hindu Marriage Act read with Section 13(1)(i)(a) of the Act. It is this judgment which has been assailed by the appellant-wife in this first appeal which stood admitted on 13.11.1997 for regular hearing.

The present application u/s 24 of the Hindu Marriage Act been filed claiming maintenance and litigation expenses during the pendency of the appeal.

The averments in the application are :- that appellant/applicant has no independent source of income by which she can make her ends meet. The husband is a confirmed employee in the National Dairy Research Institute, Karnal and is drawing regular salary from there.

Reply to this application has been filed by on behalf of the respondent-husband who has not disputed the fact that he is employed as alleged. However, it is submitted that a settlement was arrived at between the parties under which the respondent has to pay Rs.400/- per month to the wife and Rs. 300/- per month to his minor daughter and on the basis of this compromise the petition filed by the wife earlier u/s 125 Cr.P.C. was disposed of. It is also stated that the respondent is a handicapped person and has to incur various expenditure amounting to Rs. 1,000/- on house rent medical expenses and expenses Spent on rickshaw to go to his office etc.

During the course of hearing, the learned counsel appearing for the respondent herein had produced on record the salary slip for the month of July, 1997. As per this salary slip, the net amount payable to the respondent is Rs. 3,020/-. There can also be no dispute to the fact that this amount is payable to the respondent-husband to the basis of pre-revised scale. In furtherance to the recommendation of the 5th Pay Commission, which has already been implemented, the respondent is likely to get more than 4,000/- rupees per month. There is a pious obligation upon the respondent to maintain his wife and child. The difference between the parents can no way be permitted to hamper to the welfare of the child. There is no doubt that the respondent is a handicapped person but equally true is that he is earning a reasonable amount from his regular employment. The wife is entitled to the same status which she would have enjoyed while living with the husband. She would have been entitled to medical and other benefits as per the service rules. Respondent may be entitled to some amount of concession in regard of fixation of quantum because of his being handicapped but it no way can be treated as a ground to hold that the liability to maintain the wife and the child who have no independent source of income is extinguished in any manner. At this stage, it may be appropriate to refer the following observations of this Court made in the case of Dr. R.K. Sood Vs. Usha Rani Sood, .

"Hindu Marriage is not yet looked at or recognised in our society and law a pure and simple contract like other contracts. This bond is considered more as a religious, moral and social bond of mutual duties and obligations giving marriage religious and meaningful basis keeping in view the rituals performed at the marriage and consequent solemnization of marriage between the parties.

It is equally settled principle of law that the property of the parties, their income and the status of the parties has to be considered including the family property for the purposes of determining the actual benefit of maintenance which should be awarded specially to the children keeping in view their welfare."

This is an unfortunate case where the parties have been living apart from each other for a considerable period. The husband is handicapped while wife is living with her parents and bringing up her minor daughter. It needs to be noticed that during the course of re-conciliation efforts before this Court while wife was ready to go with the husband but the husband expressed his inability to keep the wife with him for various reasons. This unfortunate situation remains unaltered at, least temporarily for the present but under no circumstances the wife and child of the respondent can be permitted to starve or look for their day today need towards their relations or friends. The amount for minimum requirement must be provided to them and without fail. The alleged agreement entered between the parties u/s 125 of the Cr.P.C. can no way encroach upon the jurisdiction of the Court to grant higher maintenance u/s 24 of the Hindu Marriage Act. The reason is a very simple one. The maximum maintenance which can be granted u/s 125 of the Cr.P.C. is limited to Rs. 500/- while there is no such restriction or limitation for grant of maintenance under the provisions of Section 24 of the Hindu Marriage Act. The Court would have to consider the facts and circumstances of each case while deciding the application u/s 24 of the Hindu Marriage Act. The parties settled their dispute and such settlement must be read in regard to the provisions i.e. Section 125 of the Cr.P.C. under which proceedings had been initiated.

For the reasons stated above, this application is allowed. The appellant-applicant is entitled to Rs. 1,100/- per month from the husband during the pendency of this appeal. Out of this, Rs. 700/- would be payable to the wife for her maintenance and remaining Rs. 400/- for the maintenance payable to the child. This amount would obviously include the amount being paid by the husband in furtherance to the compromise entered into between the parties u/s 125 Cr.P.C. The amount of Rs. 1,100/- per month shall be payable with effect from 4th December, 1996 the date of the application. In addition to this, the respondent shall be liable to pay the litigation expenses which are assessed as Rs. 2,000/-.

This petition is accordingly allowed.