Full Judgment Text
-1-
2005:BHC-AS:6288
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE SIDE JURISIDICTION
(1) WRIT PETITION NO.9744 OF 2004
Mrs.Rajashree alias Vanita ]
Rajesh Dixit, Age 25 yrs. ]
Occ: Housewife, Residing at ]
C/o Shri.Ganesh Kulkarni, ]
Shreya ‘B’ Block No.6, ]
Maniknagar Co-Op.Housing ]
Society, Gangapur Road, ]
Nashik ]..Petitioner
Vs.
Shri.Rajesh Nagesh Dixit ]
Age 30 yrs. Occ: Service ]
Residing at : B-21+22 ]
Mantri Kishor Park, ]
Ashok Nagar, ]
Near Bhosale Nagar, ]
Rangehills Corner, ]
Pune-411007 ]..Respondent
....
Mr.S.B.Deshmukh for Petitioner
Mr.R.S.Apte for Respondent
....
WITH
(2) WRIT PETITION NO. 9838 OF 2004
Rajesh Nagesh Dixit ]
Age 31 yrs, Occ: Service, ]
Residing at : E21 Mantri ]
Kishore Park, ]
Range Hill Road, Pune-411007 ]..Petitioner
Vs.
Mrs.Rajashree alias Vanita ]
Rajesh Dixit, Age 26 yrs. ]
Occ: Nil, Residing at, ]
C/o Ganesh M.Kulkarni, ]
Shrey ‘B’ Block No.6, ]
Manik Nagar Co.Op.Housing Socy.]
Gangapur Road, Nasik. ]..Respondent
....
Mr.R.S.Apte with M.R.Bubna for Petitioner
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Mr.S.B.Deshmukh for Respondent
....
CORAM : B.H.MARLAPALLE,J. CORAM : B.H.MARLAPALLE,J. CORAM : B.H.MARLAPALLE,J.
DATE OF RESERVING THE DATE OF RESERVING THE DATE OF RESERVING THE
JUDGMENT : MARCH 24,2005 JUDGMENT : MARCH 24,2005 JUDGMENT : MARCH 24,2005
DATE OF PRONOUCING THE DATE OF PRONOUCING THE DATE OF PRONOUCING THE
THE JUDGMENT : APRIL 1,2005 THE JUDGMENT : APRIL 1,2005
THE JUDGMENT : APRIL 1,2005
JUDGMENT: JUDGMENT: JUDGMENT:
1. Both these petitions challenge the order passed
below Exhibit-50 in Petition No.640 of 2002 by the
learned Judge of the Family Court at Pune on
6.9.2004. The first petition is filed by the wife
whereas the second petitioner has been filed by the
husband and hence, both of them are being decided by
this common judgment and order.
2. Rule. Respondent waives service in the
respective petitions. By consent, rule is taken up
for final hearing forthwith.
3. The marriage of the parties was solemnised on
3.3.2002 at Pune. They returned to Pune on 18.3.2002
by cutting short their honeymoon trip on account of
ill health of the wife. The husband resumed his
duties on 19.3.2002 and within few days, the wife was
hospitalised. She left the matrimonial home on
3.4.2002 as she wanted to go to her parents home at
Nasik. The wife suffered an abortion. She returned
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to the matrimonial home but within few days i.e.
sometimes in the month of May, 2002 she went back to
her parents home. As she did not return to the
matrimonial home, the husband sent a legal notice
through an advocate on 29.6.2002 and the same was
replied on 18.7.2002. Under these circumstances, the
husband filed P.A.No. 588 of 2002 under Section
12(1)(c) of the Hindu Marriage Act, 1955 (for short,
the ‘Act’), for annulment of the marriage by decree
of nullity. This petition was moved on or about
3.9.2002. On receipt of the notice or thereabout,
the wife filed P.A.NO. 640 of 2002 under Section 9
of the Act for restitution of conjugal rights on or
about 27.9.2002 before the Family Court at Pune. In
the said petition, she filed an application Exhibit-5
for interim alimony. By an order dated 31.12.2003
the same application was partly allowed and the
husband was directed to pay interim maintenance of
Rs.12,500/- per month from 7.1.2002. The husband
filed an application below Exh.40 for review of the
said order dated 31.7.2003, but it was rejected by
the learned Judge of the Family Court on 7.2.2004.
The husband waited for about six months and filed yet
another application at Exh.50 for modification of the
order dated 31.12.2003 passed below Exh.5 and by the
impugned order dated 16.9.2004 the said application
has been partly allowed and interim maintenance
amount came to be reduced to Rs.7000/- per month from
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the earlier amount of Rs.12,500/- per month.
4. The learned counsel for the wife submitted that
under Order XLVII Rule 9 of C.P.C., second review
application was not maintainable and therefore, the
Family Court entertained the application at Exh.50
without authority in law. Once the application at
Exh.40 praying for review though rejected by the
order dated 7.2.2004, even otherwise on merits, there
was no case to entertain another application at
Exh.50 for the similar reasons. Whereas, the learned
counsel for the husband submitted that there was
change in circumstances from December, 2003 and after
the order below Exh.5 was passed, the husband was
driven to miseries by the behaviour of the wife. She
approached the employer of the husband and asked for
various documents as a result of which the employer
got annoyed and the husband had to leave the job. He
tried for another employment and before he was to be
interviewed by the new employer, the wife had again
approached and submitted a letter. The husband lost
the second opportunity as well. Somehow, he got
fresh job but on much less salary than he was getting
prior to the order dated 31.12.2002. The husband
remained unemployed for few months. He had to
support his family consisting of elderly parents and
his younger brother, the change in circumstances
reduced the monthly income of the husband and
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therefore, the order dated 31.12.2003 was required to
be modified inspite of the fact that such a prayer
was already rejected by the order dated 7.2.2004
passed below Exh.40, urged the learned counsel for
the husband.
5. In the impugned order, the Family Court noted
that from October, 2002 to July, 2003, the husband
was unemployed. It was pointed out that from
22.9.2003, the husband was employed as I.T.
specialist at a salary of Rs.14,000/- per month after
being jobless for about ten months. When the order
dated 31.12.2003 was passed fixing the interim
maintenance at Rs.12,500/- per month, it was noted
that the husband was having gross annual salary of
Rs.2,64,000/- in the earlier financial year. The
Family Court considered the provisions of Section 24
and observed that it has wide powers to modify, vary
or suspend the order of interim maintenance if the
changed circumstances so warranted so as to do
justice to the parties.
6. Section 10 of the Family Courts Act, 1984 states
inter alia that "the provisions of the Code of Civil
Procedure and of any other law for the time being in
force shall apply to the suits and proceedings other
than the proceedings under Chapter IX of the Code of
Criminal Procedure, 1973 before a Family Court and
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for the purpose of the said Provisions of the Code, a
Family court shall be deemed to be a Civil Court and
shall have all the powers of such Court". It further
provided in Sub-section (2) that "the provisions of
the Code of Criminal procedure or the rules made
thereunder, shall apply to the proceedings under
Chapter IX of the Code before a Family Court".
Chapter IX of the Code of Criminal Procedure 1973 is
regarding the orders for maintenance of wife,
children and parents and it contains Sections 125 to
128. The application filed by the wife in the
instant case was for interim maintenance under
Section 24 of the Act and therefore, the provisions
of Civil Procedure Code would be applicable to deal
with the main petitions filed by the respective
spouses as well as the application filed under
Section 24 of the Act filed by the wife.
Consequently, under Order XLVII Rule 1 and Section
144 of the Civil Procedure Code, the Family Court has
power to entertain an application for review. Such
an application was filed at Exhibit 40 and it was
rejected by the Family Court on 30.4.2004. The
application at Exh.50 was an application for
alteration of the interim maintenance amount fixed at
Rs.12,500/- per month by the order dated 31.12.2003
passed below Exhibit-5. Admittedly under Section 24
of the Act, there is no provision akin to Section 127
of Code of Criminal Procedure. In the case of
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Smt.Jasbir Kaur Sehgal Vs. District Judge, Dehradun
and others; [AIR 1997 SC 3397], it was urged that
Section 24 of the Act provides for interim
maintenance to be granted only to the wife and it
cannot be enlarged to consider the case of interim
maintenance to be granted to the daughter etc. These
submissions were overruled by the following
observations:
. "Section 24 of the Act no doubt, talks
of maintenance of wife during the
pendency of the proceedings but this
section, in our view, cannot be read in
isolation and cannot be given
restricted meaning to hold that it is
the maintenance of the wife alone and
no one else. Since the wife is
maintaining the eldest unmarried
daughter, her right to claim
maintenance would include her own
maintenance and that of her daughter.
This fact has to be kept in view while
fixing the maintenance pendente lite
for the wife".
. Thus the provisions of Section 24 cannot be given
restricted meaning and if in a given case, an
application is made for alteration of the interim
maintenance amount already granted, such an
application will have to be entertained as an
application for review under Order XLVII Rule 1(1) of
Civil Procedure Code or in the alternative an
application under Section 127 of Code of Criminal
Procedure before the Family Court. In the instant
case, in the application at Exh.5, the wife had
claimed that the husband was working with a Company
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called Bindview Pvt.Ltd. at Pune as a Senior
Technical Lead and was drawing a monthly salary of
Rs.62,000/-. In the application at Exhibit-50, the
husband came out with a case that he lost the said
job and the subsequent job due to the acts of the
wife and he remained unemployed for ten months.
Thereafter, he came to be employed with S.I.
Services (I) Pvt. Ltd. He joined the said company
on 1.8.2004 and the Salary Certificate placed on
record reflected that his gross salary was
Rs.15,528/- per month with the said Company. His net
pay came to Rs.14,697/- per month. When the
application at Exh.40 was rejected, his employment
with Vmoksha Technoligies Pvt. Ltd. on a gross
salary of RS.25,454/- for December, 2003 was taken
into consideration by the Family Court. Thus, the
husband had made out a case for alteration of the
maintenance amount on the basis of the subsequent
change in employment and his monthly salary with M/s.
S.I. Services (I) Pvt. Ltd. The Family Court
rightly entertained the application at Exh.50 and it
cannot be accepted that the order passed below Exh.50
was without jurisdiction or powers. If the
circumstances change in the future in respect of
either of the parties i.e. if the husband gets more
salary or the wife starts earning, either of them may
apply for alteration of the interim maintenance
amount.
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7. Now coming to the quantum of interim maintenance
as fixed at Rs.7000/- per month by the impugned order
dated 16.9.2004 below Exh.50, both the parties are
aggrieved. The wife contends that there was no
reason to reduce the amount from Rs.12,500/- to
Rs.7000/-, whereas the husband contends that the
interim maintenance amount was required to be reduced
to Rs.2000/- per month and not Rs.7000/- per month.
8. In the case of Amarjit Kaur Vs. Harbhajan Singh
and Another; [(2003) 10 SCC 228], the provisions of
Section 24 have been interpreted in the following
words:
. "Section 24 of the Hindu Marriage Act,
1955 empowers the Court in any
proceeding under the Act, if it appears
to the court that either the wife or
the husband, as the case may be, has no
independent income sufficient for her
or his support and the necessary
expenses of the proceeding, it may, on
the application of any one of them
order the other party to pay to the
petitioner the expenses of the
proceeding and monthly maintenance as
may seem to be reasonable during the
proceeding, having regard to also the
income of both the petitioner and the
respondent"
. In the case of Smt.Jasbir Kaur (supra) , for fixing
the interim maintenance amount, guidelines have been
laid down under:
. "Court has to consider the status of
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the parties, their respective needs,
capacity of the husband to pay having
regard to his reasonable expenses for
his own maintenance and those he is
obliged under the law and statutory but
involuntary payments or deductions.
Amount of maintenance fixed for the
wife should be such as she can live in
reasonable comfort considering her
status and the mode of life she was
used to when she lived with her husband
and also that she does not feel
handicapped in the prosecution of her
case. At the same time, the amounts
fixed cannot be excessive or
extortionate".
9. In the case of Smt.Jasbir Kaur (supra), the
husband’s monthly income was accepted to be
Rs.20,000/-. During the span of 36 years of marriage
life, the couple begot four children- two sons and
two daughters. Elder daughter was 34 years old and
unmarried and was living with the wife and the second
child was the son and was working with a company.
The third child was a daughter aged 26 years and
unmarried as well as unemployed and living with the
father, whereas, 4th child was a son of 20 years of
age unemployed and had studied only upto 11th class.
Under such circumstances, the Supreme Court fixed a
maintenance pendete lite payable to the wife and the
daughter with her at Rs.5000/- per month i.e. 25% of
the monthly salary.
. In the instant case, admittedly, the marriage
lasted for about three and half months and the couple
lived together only for about one and half months at
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Pune. As per the husband, even out of the period of
one and half months of matrimonial life, the wife was
hospitalised for most of the time. During the stay
at Nasik at the house of her father she suffered a
miscarriage and it was not a case of termination of
pregnancy as alleged by her in the petition she has
filed for restitution of conjugal rights. The wife
has completed her graduation and is staying with her
parents. Her father is a pensioner and has his own
house. Her mother is employed presently and her
younger brother is claimed to be a student. On the
other hand, the husband has to support his elderly
parents, his father has retired from the Police
Department and the younger brother is employed and is
of marriageable age. If the husband’s monthly pay is
taken at Rs.14,000/- as at present, the appropriate
maintenance amount by taking into consideration the
standard of living of the wife and the fact that she
is living not in a rented home, the interim
maintenance amount could be appropriately fixed at
Rs.3000/- and not at Rs.7000/- as is done by the
impugned order passed by the Family Court.
10. In the premises, Writ Petition No. 9744 of 2004
filed by the wife fails and the same is hereby
dismissed. Rule discharged. Writ Petition No.9838
of 2004 filed by the husband is partly allowed. The
impugned order passed by the Family Court below
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Exhibit-50 is hereby quashed and set aside and the
interim maintenance amount payable to the wife is
fixed at Rs.3000/- per month with effect from
1.9.2004 and Rule is made absolute accordingly.
Respective parties to bear their own costs.
[ B.H.MARLAPALLE,J. ]
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2005:BHC-AS:6288
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE SIDE JURISIDICTION
(1) WRIT PETITION NO.9744 OF 2004
Mrs.Rajashree alias Vanita ]
Rajesh Dixit, Age 25 yrs. ]
Occ: Housewife, Residing at ]
C/o Shri.Ganesh Kulkarni, ]
Shreya ‘B’ Block No.6, ]
Maniknagar Co-Op.Housing ]
Society, Gangapur Road, ]
Nashik ]..Petitioner
Vs.
Shri.Rajesh Nagesh Dixit ]
Age 30 yrs. Occ: Service ]
Residing at : B-21+22 ]
Mantri Kishor Park, ]
Ashok Nagar, ]
Near Bhosale Nagar, ]
Rangehills Corner, ]
Pune-411007 ]..Respondent
....
Mr.S.B.Deshmukh for Petitioner
Mr.R.S.Apte for Respondent
....
WITH
(2) WRIT PETITION NO. 9838 OF 2004
Rajesh Nagesh Dixit ]
Age 31 yrs, Occ: Service, ]
Residing at : E21 Mantri ]
Kishore Park, ]
Range Hill Road, Pune-411007 ]..Petitioner
Vs.
Mrs.Rajashree alias Vanita ]
Rajesh Dixit, Age 26 yrs. ]
Occ: Nil, Residing at, ]
C/o Ganesh M.Kulkarni, ]
Shrey ‘B’ Block No.6, ]
Manik Nagar Co.Op.Housing Socy.]
Gangapur Road, Nasik. ]..Respondent
....
Mr.R.S.Apte with M.R.Bubna for Petitioner
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Mr.S.B.Deshmukh for Respondent
....
CORAM : B.H.MARLAPALLE,J. CORAM : B.H.MARLAPALLE,J. CORAM : B.H.MARLAPALLE,J.
DATE OF RESERVING THE DATE OF RESERVING THE DATE OF RESERVING THE
JUDGMENT : MARCH 24,2005 JUDGMENT : MARCH 24,2005 JUDGMENT : MARCH 24,2005
DATE OF PRONOUCING THE DATE OF PRONOUCING THE DATE OF PRONOUCING THE
THE JUDGMENT : APRIL 1,2005 THE JUDGMENT : APRIL 1,2005
THE JUDGMENT : APRIL 1,2005
JUDGMENT: JUDGMENT: JUDGMENT:
1. Both these petitions challenge the order passed
below Exhibit-50 in Petition No.640 of 2002 by the
learned Judge of the Family Court at Pune on
6.9.2004. The first petition is filed by the wife
whereas the second petitioner has been filed by the
husband and hence, both of them are being decided by
this common judgment and order.
2. Rule. Respondent waives service in the
respective petitions. By consent, rule is taken up
for final hearing forthwith.
3. The marriage of the parties was solemnised on
3.3.2002 at Pune. They returned to Pune on 18.3.2002
by cutting short their honeymoon trip on account of
ill health of the wife. The husband resumed his
duties on 19.3.2002 and within few days, the wife was
hospitalised. She left the matrimonial home on
3.4.2002 as she wanted to go to her parents home at
Nasik. The wife suffered an abortion. She returned
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to the matrimonial home but within few days i.e.
sometimes in the month of May, 2002 she went back to
her parents home. As she did not return to the
matrimonial home, the husband sent a legal notice
through an advocate on 29.6.2002 and the same was
replied on 18.7.2002. Under these circumstances, the
husband filed P.A.No. 588 of 2002 under Section
12(1)(c) of the Hindu Marriage Act, 1955 (for short,
the ‘Act’), for annulment of the marriage by decree
of nullity. This petition was moved on or about
3.9.2002. On receipt of the notice or thereabout,
the wife filed P.A.NO. 640 of 2002 under Section 9
of the Act for restitution of conjugal rights on or
about 27.9.2002 before the Family Court at Pune. In
the said petition, she filed an application Exhibit-5
for interim alimony. By an order dated 31.12.2003
the same application was partly allowed and the
husband was directed to pay interim maintenance of
Rs.12,500/- per month from 7.1.2002. The husband
filed an application below Exh.40 for review of the
said order dated 31.7.2003, but it was rejected by
the learned Judge of the Family Court on 7.2.2004.
The husband waited for about six months and filed yet
another application at Exh.50 for modification of the
order dated 31.12.2003 passed below Exh.5 and by the
impugned order dated 16.9.2004 the said application
has been partly allowed and interim maintenance
amount came to be reduced to Rs.7000/- per month from
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the earlier amount of Rs.12,500/- per month.
4. The learned counsel for the wife submitted that
under Order XLVII Rule 9 of C.P.C., second review
application was not maintainable and therefore, the
Family Court entertained the application at Exh.50
without authority in law. Once the application at
Exh.40 praying for review though rejected by the
order dated 7.2.2004, even otherwise on merits, there
was no case to entertain another application at
Exh.50 for the similar reasons. Whereas, the learned
counsel for the husband submitted that there was
change in circumstances from December, 2003 and after
the order below Exh.5 was passed, the husband was
driven to miseries by the behaviour of the wife. She
approached the employer of the husband and asked for
various documents as a result of which the employer
got annoyed and the husband had to leave the job. He
tried for another employment and before he was to be
interviewed by the new employer, the wife had again
approached and submitted a letter. The husband lost
the second opportunity as well. Somehow, he got
fresh job but on much less salary than he was getting
prior to the order dated 31.12.2002. The husband
remained unemployed for few months. He had to
support his family consisting of elderly parents and
his younger brother, the change in circumstances
reduced the monthly income of the husband and
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therefore, the order dated 31.12.2003 was required to
be modified inspite of the fact that such a prayer
was already rejected by the order dated 7.2.2004
passed below Exh.40, urged the learned counsel for
the husband.
5. In the impugned order, the Family Court noted
that from October, 2002 to July, 2003, the husband
was unemployed. It was pointed out that from
22.9.2003, the husband was employed as I.T.
specialist at a salary of Rs.14,000/- per month after
being jobless for about ten months. When the order
dated 31.12.2003 was passed fixing the interim
maintenance at Rs.12,500/- per month, it was noted
that the husband was having gross annual salary of
Rs.2,64,000/- in the earlier financial year. The
Family Court considered the provisions of Section 24
and observed that it has wide powers to modify, vary
or suspend the order of interim maintenance if the
changed circumstances so warranted so as to do
justice to the parties.
6. Section 10 of the Family Courts Act, 1984 states
inter alia that "the provisions of the Code of Civil
Procedure and of any other law for the time being in
force shall apply to the suits and proceedings other
than the proceedings under Chapter IX of the Code of
Criminal Procedure, 1973 before a Family Court and
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-6-
for the purpose of the said Provisions of the Code, a
Family court shall be deemed to be a Civil Court and
shall have all the powers of such Court". It further
provided in Sub-section (2) that "the provisions of
the Code of Criminal procedure or the rules made
thereunder, shall apply to the proceedings under
Chapter IX of the Code before a Family Court".
Chapter IX of the Code of Criminal Procedure 1973 is
regarding the orders for maintenance of wife,
children and parents and it contains Sections 125 to
128. The application filed by the wife in the
instant case was for interim maintenance under
Section 24 of the Act and therefore, the provisions
of Civil Procedure Code would be applicable to deal
with the main petitions filed by the respective
spouses as well as the application filed under
Section 24 of the Act filed by the wife.
Consequently, under Order XLVII Rule 1 and Section
144 of the Civil Procedure Code, the Family Court has
power to entertain an application for review. Such
an application was filed at Exhibit 40 and it was
rejected by the Family Court on 30.4.2004. The
application at Exh.50 was an application for
alteration of the interim maintenance amount fixed at
Rs.12,500/- per month by the order dated 31.12.2003
passed below Exhibit-5. Admittedly under Section 24
of the Act, there is no provision akin to Section 127
of Code of Criminal Procedure. In the case of
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-7-
Smt.Jasbir Kaur Sehgal Vs. District Judge, Dehradun
and others; [AIR 1997 SC 3397], it was urged that
Section 24 of the Act provides for interim
maintenance to be granted only to the wife and it
cannot be enlarged to consider the case of interim
maintenance to be granted to the daughter etc. These
submissions were overruled by the following
observations:
. "Section 24 of the Act no doubt, talks
of maintenance of wife during the
pendency of the proceedings but this
section, in our view, cannot be read in
isolation and cannot be given
restricted meaning to hold that it is
the maintenance of the wife alone and
no one else. Since the wife is
maintaining the eldest unmarried
daughter, her right to claim
maintenance would include her own
maintenance and that of her daughter.
This fact has to be kept in view while
fixing the maintenance pendente lite
for the wife".
. Thus the provisions of Section 24 cannot be given
restricted meaning and if in a given case, an
application is made for alteration of the interim
maintenance amount already granted, such an
application will have to be entertained as an
application for review under Order XLVII Rule 1(1) of
Civil Procedure Code or in the alternative an
application under Section 127 of Code of Criminal
Procedure before the Family Court. In the instant
case, in the application at Exh.5, the wife had
claimed that the husband was working with a Company
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called Bindview Pvt.Ltd. at Pune as a Senior
Technical Lead and was drawing a monthly salary of
Rs.62,000/-. In the application at Exhibit-50, the
husband came out with a case that he lost the said
job and the subsequent job due to the acts of the
wife and he remained unemployed for ten months.
Thereafter, he came to be employed with S.I.
Services (I) Pvt. Ltd. He joined the said company
on 1.8.2004 and the Salary Certificate placed on
record reflected that his gross salary was
Rs.15,528/- per month with the said Company. His net
pay came to Rs.14,697/- per month. When the
application at Exh.40 was rejected, his employment
with Vmoksha Technoligies Pvt. Ltd. on a gross
salary of RS.25,454/- for December, 2003 was taken
into consideration by the Family Court. Thus, the
husband had made out a case for alteration of the
maintenance amount on the basis of the subsequent
change in employment and his monthly salary with M/s.
S.I. Services (I) Pvt. Ltd. The Family Court
rightly entertained the application at Exh.50 and it
cannot be accepted that the order passed below Exh.50
was without jurisdiction or powers. If the
circumstances change in the future in respect of
either of the parties i.e. if the husband gets more
salary or the wife starts earning, either of them may
apply for alteration of the interim maintenance
amount.
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-9-
7. Now coming to the quantum of interim maintenance
as fixed at Rs.7000/- per month by the impugned order
dated 16.9.2004 below Exh.50, both the parties are
aggrieved. The wife contends that there was no
reason to reduce the amount from Rs.12,500/- to
Rs.7000/-, whereas the husband contends that the
interim maintenance amount was required to be reduced
to Rs.2000/- per month and not Rs.7000/- per month.
8. In the case of Amarjit Kaur Vs. Harbhajan Singh
and Another; [(2003) 10 SCC 228], the provisions of
Section 24 have been interpreted in the following
words:
. "Section 24 of the Hindu Marriage Act,
1955 empowers the Court in any
proceeding under the Act, if it appears
to the court that either the wife or
the husband, as the case may be, has no
independent income sufficient for her
or his support and the necessary
expenses of the proceeding, it may, on
the application of any one of them
order the other party to pay to the
petitioner the expenses of the
proceeding and monthly maintenance as
may seem to be reasonable during the
proceeding, having regard to also the
income of both the petitioner and the
respondent"
. In the case of Smt.Jasbir Kaur (supra) , for fixing
the interim maintenance amount, guidelines have been
laid down under:
. "Court has to consider the status of
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the parties, their respective needs,
capacity of the husband to pay having
regard to his reasonable expenses for
his own maintenance and those he is
obliged under the law and statutory but
involuntary payments or deductions.
Amount of maintenance fixed for the
wife should be such as she can live in
reasonable comfort considering her
status and the mode of life she was
used to when she lived with her husband
and also that she does not feel
handicapped in the prosecution of her
case. At the same time, the amounts
fixed cannot be excessive or
extortionate".
9. In the case of Smt.Jasbir Kaur (supra), the
husband’s monthly income was accepted to be
Rs.20,000/-. During the span of 36 years of marriage
life, the couple begot four children- two sons and
two daughters. Elder daughter was 34 years old and
unmarried and was living with the wife and the second
child was the son and was working with a company.
The third child was a daughter aged 26 years and
unmarried as well as unemployed and living with the
father, whereas, 4th child was a son of 20 years of
age unemployed and had studied only upto 11th class.
Under such circumstances, the Supreme Court fixed a
maintenance pendete lite payable to the wife and the
daughter with her at Rs.5000/- per month i.e. 25% of
the monthly salary.
. In the instant case, admittedly, the marriage
lasted for about three and half months and the couple
lived together only for about one and half months at
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Pune. As per the husband, even out of the period of
one and half months of matrimonial life, the wife was
hospitalised for most of the time. During the stay
at Nasik at the house of her father she suffered a
miscarriage and it was not a case of termination of
pregnancy as alleged by her in the petition she has
filed for restitution of conjugal rights. The wife
has completed her graduation and is staying with her
parents. Her father is a pensioner and has his own
house. Her mother is employed presently and her
younger brother is claimed to be a student. On the
other hand, the husband has to support his elderly
parents, his father has retired from the Police
Department and the younger brother is employed and is
of marriageable age. If the husband’s monthly pay is
taken at Rs.14,000/- as at present, the appropriate
maintenance amount by taking into consideration the
standard of living of the wife and the fact that she
is living not in a rented home, the interim
maintenance amount could be appropriately fixed at
Rs.3000/- and not at Rs.7000/- as is done by the
impugned order passed by the Family Court.
10. In the premises, Writ Petition No. 9744 of 2004
filed by the wife fails and the same is hereby
dismissed. Rule discharged. Writ Petition No.9838
of 2004 filed by the husband is partly allowed. The
impugned order passed by the Family Court below
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Exhibit-50 is hereby quashed and set aside and the
interim maintenance amount payable to the wife is
fixed at Rs.3000/- per month with effect from
1.9.2004 and Rule is made absolute accordingly.
Respective parties to bear their own costs.
[ B.H.MARLAPALLE,J. ]
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