IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. C.R. No.: 92 of 2010. Reserved on: 23.12.2010. Decided on: 21.02.2011. __________________________________________________________ Monika Rana. … Petitioner. Versus Yogeshwar Singh Sapehia. … Respondent. Coram The Hon’ble Mr. Justice Rajiv Sharma, J. Whether approved for reporting?1 Yes. For the Petitioner : Mr. Ajay Sharma, Advocate. For the Respondent : Mr. Romesh Verma, Advocate. Rajiv Sharma, Judge. This revision is directed against the order dated 3rd July, 2009 passed by the Additional District Jude, Fast Track Court, Kangra at Dharamshala in CMA No.31 of 2009. 2. Material facts necessary for adjudication of this petition are that the respondent/husband had instituted a petition under Section 13 of the Hindu Marriage Act bearing No.8-D/III/2007 seeking divorce from the petitioner on the grounds of cruelty and desertion. He had also preferred a CMA No.31 of 2009 under Section 24 of the Hindu Marriage Act, 1955. He has prayed for monthly maintenance amount as well as litigation 1 Whether the reporters of Local Papers may be allowed to see the judgment? Yes. - 2 - expenses. According to the husband, he has no source of income and he was having no property in his name. According to him, the wife has sufficient income being a trained J.B.T. Teacher employed in government service. The petitioner/wife had filed reply to the application. According to her, she had earlier filed a petition against the petitioner under Section 12 of Protection of Women from Domestic Violence Act in the Court of learned Chief Judicial Magistrate, Kangra at Dharamshala. According to her, the respondent/husband was having sufficient income to support himself as his father has retired as Principal from Government Senior Secondary School. She also averred that the husband had inherited the landed property from his father. According to her, the husband himself was not interested to engage himself gainfully. She has also stated that in case the husband lives with her, she was ready and willing to maintain him. The respondent/husband filed rejoinder to the same. He has reiterated the submissions contained in the application. The learned Additional District Judge, Fast Track Court, Kangra at Dharamshala disposed of the application by ordering the petitioner/wife to pay monthly maintenance of ` 500/- to the husband. She was also directed to pay the litigation expenses to the respondent/husband of ` 2000/- in lump-sum. The petitioner/wife has challenged the order dated 3rd July, 2009 passed by the learned Additional District Judge, Fast Track Court, Kangra at Dharamshala. 3. Mr. Ajay Sharma, leaned counsel for the petitioner/wife has strenuously argued that the order dated 3rd July, 2009 passed by the learned Additional District Judge, Fast Track Court, Kangra at Dharamshala is not legally sustainable. According to him, the respondent/husband is B.Sc. B.Ed. and has himself incapacitated from - 3 - earning. He has also argued that respondent’s father has retired as Principal from Government Senior Secondary School and he owns sufficient landed property. Mr. Romesh Verma, learned counsel for the respondent/husband has supported the order dated 3rd July, 2009. 4. I have heard the learned counsel for the parties and gone through the pleadings and record carefully. 5. It is not disputed that the petitioner/wife is a J.B.T. Teacher. She is in Government services. Respondent/husband is B.Sc. B.Ed, but he is unemployed. It is also not in dispute that his father has retired as Principal from Government Senior Secondary School. 6. It is settled law that under Section 24 of the Hindu Marriage Act, 1955 either party, i.e. husband or wife can prefer an application for maintenance. In the instant case, application has been preferred by the husband. Their Lordships of Hon’ble Supreme in (2010) 12 SCC 242 have held that in the matter of making an order for interim maintenance, the discretion of the Court must be guided by the criterion provided in the Section, namely, the means of the parties and also after taking into account incidental and other relevant factors like social status, the background from which both the parties come from and the economical dependence of the petitioner. Their lordships of Hon’ble Supreme Court have held as under (paras 8 and 9):- “Section 24 thus provides that in any proceeding under the Act, the spouse who has no independent income sufficient for her or his support may apply to the court to direct the respondent to pay the monthly maintenance as the court may think reasonable, regard being had to the petitioner's own income and the income of the respondent. The very language in which Section is couched indicates that wide discretion has - 4 - been conferred on the court in the matter of an order for interim maintenance. Although the discretion conferred on the court is wide, the Section provides guideline inasmuch as while fixing the interim maintenance the court has to give due regard to the income of the respondent and the petitioner's own income. In other words, in the matter of making an order for interim maintenance, the discretion of the court must be guided by the criterion provided in the Section, namely, the means of the parties and also after taking into account incidental and other relevant factors like social status; the background from which both the parties come from and the economical dependence of the petitioner. Since an order for interim maintenance by its very nature is temporary, a detailed and elaborate exercise by the court may not be necessary, but, at the same time, the court has got to take all the relevant factors into account and arrive at a proper amount having regard to the factors which are mentioned in the statute. In a case such as the present one, the stand of the husband that he is drawing salary of Rs. 30,000/- per month from the company since August 2005 is inherently improbable. The husband is highly qualified; he is CA, ICWA, CIMA and has also completed course of Computer Information Technology. He has worked with renowned and big companies like M/s. Kimberly Clark and M/s. Tata Technology as Finance Manager and Senior SAP Consultant respectively before he started on his own in January, 2000. He did not leave the job due to any compulsion but because he wanted to grow big. He has admitted that having worked for six years, he decided to do his own business and started the company, namely, M/s. Paysquare Consultancy Limited in which he has sought financial/administrative help of his brother and one Ms. Nilima Apte. How can it - 5 - be believed that a person who has started his own business leaving the job in 2000 would start drawing the salary of Rs. 30,000/- per month from the company from August, 2005? The High Court has not taken into consideration these vital aspects and accepted the statement of the husband that he was drawing salary of Rs. 30,000/- per month as a gospel truth. Insofar as wife is concerned, it appears that she does not have any settled job; she has worked at few places for few months. We think this is eminently a case in which the High Court must reconsider the wife's application for interim maintenance.” 7. Mr. Romesh Verma, learned counsel for the respondent/husband has relied upon Yashpal Singh Thakur Vs. Anjana Rajput, 2001(2) Civil Court Cases 472. The judgment cited by Mr. Romesh Verma, learned counsel for the respondent/husband supports the contention of the wife. The learned Single Jude of Madhya Pradesh High Court has come to the conclusion that it can be irrefutably concluded that the husband-petitioner has by his own conduct decided to lead a leisurely life and has made no attempts to earn money which he was capable of earning. The learned Single Judge has further held that the petitioner could not afford to incapacitate himself and maintain an application under Section 24 of the Act. The learned Single Judge has relied upon Govind Singh vs. Smt. Vidya, AIR 1999, Rajasthan 304. He has held as under (para 9):- “I am in respectful agreement with the aforesaid view. In the case at hand it can be irrefutable concluded that the husband-petitioner has, by his own conduct decided to lead a leisurely life and has made no attempts to earn money which he is capable of earning. He cannot afford to incapacitate himself and - 6 - sustain an application under Section 24 of the Act. It will be an anathema to the very purpose of the said provision. Hence, I am of the considered opinion that the conclusion reached at by the Trial Judge is absolutely defensible and the impugned order does not warrant any interference.” 8. Mr. Romesh Verma, Advocate has also relied upon Bharat Hedge Vs. Saroj Hedge, 2007 (4) Civil Court Cases 670, wherein the learned Single Judge of Delhi High Court has reiterated the principles that even the husband can claim interim maintenance against the wife. In this case the wife had given the details of property held by the husband. The case of the husband-petitioner was that only revenue income was to be taken into consideration and not the capital assets at that stage. The learned Single Judge has held that in India, parties do not truthfully reveal their income. For self employed persons or persons employed in the unorganized sector, truthful income never surfaces. The learned Single Judge has culled out the following 11 principles/factors which are to be taken into consideration while deciding an application under Section 24 of the Hindu Marriage Act. The same are:- “(1) Status of the parties. (2) Reasonable wants of the claimant. (3) The independent income and property of the claimant. (4) The number of persons, the non-applicant has to maintain. (5) The amount should aid the applicant to live in a similar life style as he/she enjoyed in the matrimonial home. (6) Non-applicant’s liabilities, if any. - 7 - (7) Provisions for food, clothing, shelter, education, medical attendance and treatment etc. of the applicant. (8) Payment capacity of the non-applicant. (9) Some guess work is not ruled out while estimating the income of the non-applicant when all the sources or correct sources are not disclosed. (10) The non-applicant to defray the cost of litigation. (11) The amount awarded under Section 125, Cr.P.C. is adjustable against the amount awarded under Section 24 of the Act.” 9. In Govind Singh v. Smt. Vidya, AIR 1999 Rajasthan 304, the learned Single Judge has held that the spouse who voluntarily incapacitates himself from earning is not entitled for grant of maintenance. The learned Single Judge has held as under (para 3):- “I have carefully considered the reasons given by he learned trial Court for rejecting the application filed by the appellant for interim maintenance. It is true that Section 24 of the Hindu Marriage Act, 1955 entitles either party to move an application for maintenance provided such party has no means of subsistence and the other party is in a position to provide maintenance. But it does not mean that the husband who is otherwise capable of earning his living should stop earning the living and start depending on earning of his wife. In the instant case it appears that the appellant Govind Singh has incapacitated himself by stopping the running the auto-rickshaw on hire. It is well-established maxim of Anglo Saxon jurisprudence - 8 - that no person can be allowed to incapacitate himself. That maxim is applicable to the case of earning husband. A person who voluntarily incapacitates himself from earning is not entitled to claim maintenance from the other spouse.” 10. In Smt. Kanchan versus Kamalendra, 1993(2) H.L.R. 171 the learned Single Judge of Bombay High Court has held that the husband is not entitled to maintenance in the absence of any handicap or impediment to earn. The learned Single Judge has held as under (paras 3, 4, 5 and 6):- “Taking into consideration the scheme of section 24 of the Act, either of the spouse in the proceedings on satisfying that they have no independent source of income to support them can claim maintenance pendent elite. Husband is therefore equally entitled to claim maintenance. However, the non-applicant-husband will have to satisfy the Court either due to physical or medical disability, he is handicapped to earn and support his livelihood. No doubt the applicant-wife is an employee of the Collectorate earning of salary of Rs.2,000/-. After deduction her home taking salary is Rs. 1200/-. She has also to maintain her child aged about 10 years and also to look after his education. She has satisfactorily explained the expenses to be incurred by her. The non-applicant-husband was initially doing a business of book binding. According to him the Bank has attached his machinery for recovery of loan. His father who is in the same business, does not render any co-operation to him. The non-applicant-husband is mentally and physically well bodied person. He has a skill of a - 9 - particular business. There is no handicap for him to earn bare minimum to support his livelihood. Merely because his business is closed, it cannot be held that he has no source to earn. Since the wife is in the employment, the husband cannot make himself wholly dependent on her income through a device of section 24 of the Act. In absence of any handicap or impediment to earn, to grant maintenance to such able bodied person equipped with skill would promote idleness. It is opposed to spirit of section 24 of the Act. The trial Court was wholly without jurisdiction in awarding maintenance in favour of the non-applicant- husband, impugned order therefore cannot be sustained.” 11. In the instant case, the husband is B.Sc. B.Ed. He himself has incapacitated himself from earning income. It is not the case of the husband that he had been looking for the job, but he could not find a suitable job. His father has retired as Principal from Government Senior Secondary School. It was also argued during the course of arguments that the petitioner’s/husband mother is serving as Headmistress. The support given to the parties by the parents can also be taken into consideration while assessing the income. In these circumstances, it cannot be held that the husband was not in possession of sufficient income. A person, who incapacitates himself, cannot claim maintenance. The learned Additional District Judge was wrongly swayed by the averments contained in the reply that the wife was ready and willing to maintain him in case he joins her company. The offer made by the wife was conditional and not absolute. What she had projected in the reply was that the husband was welcome to stay with her. The order - 10 - passed by the learned Additional District Judge, Fast Track Court is not in accordance with law. 12. Accordingly, in view of the observations made hereinabove, the petition is allowed. Order dated 3rd July, 2009 passed by the Additional District Judge, Fast Track Court, Kangra at Dharamshala in CMA No.31 of 2009 is set aside. The interim order dated 27.7.2009 is vacated. (Rajiv Sharma), Judge. February 21, 2011. (sck).