IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. CR NO.1858/2008 Date of Decision: 30.5.2009. Sushil Kumar Banati ..........Petitioner. Versus Smt.Seema ..........Respondent CORAM: HON'BLE MR.JUSTICE JASWANT SINGH. Present: Mr. Raj Mohan Singh,Advocate for the petitioner. Mr.Rohit Ahuja,Advocate for the respondent. JASWANT SINGH,J Present petition under Article 227 of the Constitution of India has been filed by the petitioner-husband challenging the order dated 13.2.2008 (Annexure P/3) passed by learned Additional District Judge, Faridabad, while allowing the application under Section 24 of the Hindu Marriage Act,1955 (hereinafter referred to as the Act)filed by the respondent-wife and granting Rs.3500/- p.m. to applicant/wife andRs.2500/- p.m. each for two minor children from the date of filing of the application. Briefly stated the respondent wife filed a Divorce Petition under Section 13 of the Act on the ground of cruelty. In the application under Section 24 of the Act seeking maintenance pendente lite, it was alleged that she was thrown out of the matrimonial home on 14.6.2007 alongwith two children i.e. one son and a daughter and all her educational certificates/degrees have also been snatched. It was further alleged that she had no source of income to maintain herself as well as children and they were dependent on her retired father. Petitioner husband,who is running a confectionery-cum-general store including a mobile phones store is CR NO.1858/2008 2 allegedly having gross monthly income of not less than Rs.2.50 lacs. Since one of the children is alleged to be a school going monthly maintenance pendente lite @ Rs.30,000/- per month besides Rs.60,000/- as litigation expenses. Upon notice of the application, petitioner-husband filed reply controverting the averments made in the application. However, he did not specifically disclose nature of his business or his monthly income. It is in these circumstances that the learned Additional District Judge by taking wages of a workman as Rs.3510/-, as fixed by the State Government, granted maintenance to respondent wife @ Rs.3500/- per month and each of the minor children was granted @ Rs.2500/- p.m. Besides that she was also granted Rs.11,000/- as litigation expenses. Hence the present revision petition. It is contended by the learned counsel for the petitioner that the impugned order is based on non-existent facts. According to him, the petitioner is not doing any business, as alleged by the respondent wife and is himself dependent on his father. It is submitted that in these circumstances, the learned trial Court has erred in granting the maintenance pendente lite, at the rate as noticed above. On the other hand learned counsel for the respondent wife has reiterated that the monthly income of the petitioner is about Rs.2.50 lacs and the amount of maintenance granted to respondent wife and her children should be enhanced. Heard learned counsel for the parties and perused the paper book. The contention of the learned counsel for the petitioner that he is not doing any business, as alleged by the respondent wife, or that he is totally dependent upon his parents cannot be accepted at all. This plea is not sustainable at all as it is his moral and even statutory obligation to maintain his wife and minor children as long as he is able bodied man capable of earning and living. It is not disputed that petitioner is an able bodied man capable of earning a handsome salary and he is lone CR NO.1858/2008 3 son of his retired parents who possess substantial property. Respondent-wife in support of the plea that petitioner husband is earning about Rs.2.50 lacs per month, has not produced any documentary evidence at all except bald assertions in the application under Section 24 of the Act. Thus, the averments made by the respondent wife in her application under Section 24 of the Act cannot be taken as correct at its face value. It is quite settled that no set formula has been laid down for fixing the amount of maintenance and while determining so, some amount of guess work is required besides relying upon the material placed on record. The Court has to consider the status of the parties, their respective needs, the capacity of the husband to pay having regard to his reasonable expenses for his own maintenance and of those he is obliged under the law and statutory but involuntary payments or deductions. The wife is entitled to such maintenance as would sustain her to live in a reasonable comfort considering her status and the standard of comfort she was used to when she lived with her husband. Reliance is placed upon the judgment of Hon'ble Supreme Court in Jasbir Kaur Sehgal v. District Judge, Dehradun(1997) 7 S.C.C.7. In my opinion, the grant of maintenance to respondent wife @ Rs.3500/- (taken by the learned court below on the basis of minimum wage fixed by State Government) is not justified. It is not the case of the respondent wife that she is illiterate or incapable of doing some job. To augment her income she can also seek some job. Therefore, keeping in view the earning capability of respondent wife being an educated and able bodied lady, grant of maintenance to her @ Rs.2500/- per month would be justified. However, since one of the child is school going, grant of maintenance to the children @ Rs.2500/- each per month is justified. CR NO.1858/2008 4 It has been pointed out by counsel for the parties that respondent-wife has withdrawn her petition for divorce vide order dated 1.5.2009, passed by learned Additional District Judge, Faridabad. Accordingly, present revision petition is partly allowed and the respondent wife and her two minor children are held entitled to monthly maintenance pendente lite @ Rs.2500/- each and therefore, the impugned order dated 13.2.2008 (Annexure P/3) is modified to such extent. It is not disputed by the learned counsel for the parties that from the date of filing of the application under Section 24 of the Act till 30.4.2009 the total amount of maintenance pendente lite comes out to Rs.1,60,500/- against which the petitioner has already paid a sum of Rs.1,50,000/-. Thus, the petitioner husband is required to pay the balance amount of Rs.10,500/-. The litigation expenses of Rs.11,000/- in my opinion, is justified and need not be reduced. 30.5.2009. (Jaswant Singh) joshi Judge