Court No. - 44
Case :- FIRST APPEAL No. - 782 of 2021 Appellant :- Brijendra Mishra Respondent :- Amita Mishra Counsel for Appellant :- Nilay Kumar Pandey,Amar Bahadur Singh
Hon'ble Mrs. Sunita Agarwal,J. Hon'ble Krishan Pahal,J.
By means of the present appeal, the petitioner seeks to challenge the orders dated 21.10.2019 and 5.2.2020 passed by the Family Court in Case no.480 of 2016, the divorce suit under Section 13 of the Hindu Marriage Act.
Upon filing of the divorce suit by the husband/appellant herein, an application under Section 24 of the Hindu Marriage Act had been filed by the wife claiming interim maintenance and cost of the proceedings. An affidavit had been filed by the appellant husband in reply to the application under Section 24 of the Hindu Marriage Act to state that the applicant wife had instituted proceedings before the Court at Delhi for seeking interim maintenance for herself and her minor child. Initially, an amount of Rs.10,000/- per month was fixed but it was later on enhanced to Rs.30,000/- per month. Out of which, Rs.10,000/- per month is regularly being paid to the wife by transmitting the said amount in her bank account. It was then stated that the applicant wife though is a permanent resident of district Jaunpur but had instituted cases in Delhi in order to harass him and moreover, the appellant is a permanent resident of district Varanasi. According to the appellant, the respondent wife is earning Rs.40,000/- per month, in addition to the interim maintenance and, thus, is having more than sufficient income to sustain herself. She, thus, is not entitled for the expenses of the proceedings that too expenses for travelling and staying in a hotel.
We may note that the Family Court though has not awarded any interim maintenance to wife but in order to ascertain her demand for payment of travelling expenses, etc, direction was issued to furnish necessary evidence by the impugned order dated 21.10.2019. On 5.2.2020, the next date fixed, the evidence pertaining to travelling expenditure and staying at Varanasi had been placed by the respondent wife upon which the Family Court had computed the actual expenditures incurred by the wife for attending the proceedings on the date fixed. It was, thus, found that an amount of Rs.7,716/- had been incurred by the wife in attending the Court proceedings and hence the same was awarded by the order dated 5.2.2020. We may note that while awarding the said amount the Court has not determined any fixed amount of expenses to be incurred by the wife to attend the divorce proceedings drawn by the husband in future. The actual expenditures incurred by the wife for attending the proceedings on the date fixed had been directed to be paid to her.
We may further note that the appellant husband has given an excuse by making a bald assertion that he has lost his job due to COVID-19 pandemic and is not earning a single penny as on date but there is no detail of the employment of the husband prior to COVID-19 or at the time of filing of the divorce petition, i.e in the year 2016 or at the time of institution of the proceedings under Section 24 of the Hindu Marriage Act by the wife. The bald denial on the part of the husband or the assertion of being unemployed as on date cannot be taken into consideration, inasmuch as, it is the duty of the husband to bring the correct facts before the Court. We may also take into consideration that out of the interim maintenance awarded by the competent court to the respondent wife she is also looking after her minor child. We may also note that for the reason that interim maintenance had already been awarded to the respondent wife, no interim maintenance has been fixed in the proceedings under Section 24 of the Hindu Marriage Act and that the appellant, as per his own admission, is paying only Rs.10,000/- to her as on date.
Mere fact that she has some source of income actual expenditure incurred by her to attend the Court proceedings drawn by the husband awarded by the Family Court, cannot be said to be illegal.
The object of the Section 24 of the Hindu Marriage Act is to ensure that wife does not reach at the stage of destitution or vagrancy or she has sufficient resources to maintain herself. The maintenance is to be awarded not only for the wife but minor child also. The Apex Court in the case of Rajnesh vs Neha and another reported in 2021 (2) SCC 324 has laid down the criteria which are relevant to determine the interim/permanent maintenance to wife. It has also noticed that while determining maintenance to the minor child i.e. his or her need for food, clothing, education and other extra curricular activity to develop his personality are also to be taken into consideration.
In any case, it is the duty of the parents to rear up their child and the appellant being father of the child cannot shirk his liability.
Even if the appellant husband, refuses to maintain his wife for any reason he cannot deny his responsibility towards his minor child. As the wife is bearing expenditures for all the needs of the minor child of the couple, we do not find any illegality in the decision of the Family court to award necessary expenses incurred by the wife for travelling etc from Delhi to Varanasi to attend the proceedings of divorce suit drawn by the husband. We do not find any error of law in the decision of the Family Court.
The appeal is, thus, found devoid of merit and hence dismissed at the admission stage itself.
Order Date :- 26.10.2021 Harshita