C.R. No. 580 of 2007 [1] IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Revision No. 580 of 2007 (O&M) Date of decision: January 13, 2009 Rajiv Malhotra .. Petitioner v. Smt. Abha Malhotra .. Respondent CORAM: HON'BLE MR. JUSTICE RAJESH BINDAL Present: Mr. A. S. Chadha, Advocate for the petitioner. Mr. R. N. Sharma, Advocate for the respondent. .. Rajesh Bindal J. Challenge in the present petition is to the order passed by the learned court below in an application filed by the respondent under Section 24 of the Hindu Marriage Act, 1955 (for short, `the Act'), whereby a sum of Rs. 15,000/- per month as maintenance pendente lite has been awarded to the respondent-wife. The petitioner-husband is aggrieved of the order fixing the maintenance. Briefly, the facts are that the marriage between the parties was solemnised on 10.12.1999. A son was born out of the wedlock on 1.11.2000. Earlier a divorce petition was filed by the petitioner on 26.3.2004. However, in the proceedings arising therefrom, on intervention of this court, the parties started living together on 15.12.2004. However, still they could not pull on and separated on 26.11.2005. Fresh divorce petition was filed on 20.12.2005 by the petitioner in which the application for interim maintenance was filed by the respondent under Section 24 of the Act, which has been determined by the court below at Rs. 15,000/- per month. Learned counsel for the petitioner submitted that the maintenance, as fixed by the learned court below, is quite on the higher side. While fixing the maintenance, the learned court below considered the fact that the petitioner is well qualified as M.S. (Computers) from United States of America and was earlier drawing handsome salary of Rs. 1,15,000/- per month and presently he was earning substantial amount as income from the share business being carrying on by him now. The claim was made by the respondent-wife also on account of the C.R. No. 580 of 2007 [2] fact that she wanted to pursue her further studies of M.D. Course and for the purpose, she required money to attend coaching classes. The submission of learned counsel for the petitioner is that presently, the petitioner is not keeping good health and his monthly income is merely Rs. 35,000/- per month in which he has to maintain himself and also his old parents. Besides this, the child who was born out of the wedlock is also living with the petitioner. He further submitted that in the petition filed by the respondent under Section 24 of the Act, the respondent admitted that earlier she was working as Medical Officer at monthly salary of Rs. 13,000/-. However, the job was left just to harass the petitioner so that she could claim more amount on account of maintenance. When she was well qualified and capable of working, she cannot be permitted to sit idle to be a burden on the petitioner. As far as income is concerned, it was denied that the petitioner was earning lacs of rupees from share business, rather, it was pleaded that the income was only to the tune of Rs. 25,000/- per month. As far as claim of the respondent regarding amount for pursuing her higher studies is concerned, the submission is that the petitioner is not liable to reimburse the same, as all what can be claimed in a petition under Section 24 of the Act is maintenance for comfortable living in terms of the income of other spouse and nothing more than that. He further submitted that after the filing of the divorce petition by the petitioner, FIR was registered against the petitioner and in anticipatory bail filed by the petitioner before this Court, in terms of the directions issued by this Court as a condition precedent in Crl. Misc. No. 28327-M of 2006, on 13.7.2006, a sum of Rs. 10,000/- was being paid by the petitioner to the respondent as maintenance. It was the amount which was agreed to by both the parties. It was further submitted that when the relations between the parties are strained, there was no question of petitioner's funding higher studies of the respondent, in case she cannot afford that of her own. Even otherwise, such a claim cannot be made in a petition under Section 24 of the Act, rather, the proper remedy for that can possibly by a petition under Hindu Adoption and Maintenance Act, 1956. The provisions of Section 24 of the Act are primarily meant to provide monetary assistance to such spouse who is incapable of supporting herself in spite of sincere efforts made. A spouse who is well qualified is not expected to remain idle to squeeze out the resources of other spouse. Reliance was placed upon Mamta Jaiswal (Smt.) v. Rajesh Jaiswal, 2001(2) HLR 228 and Lt. Col. Rayee Saharawat v. Ujjwal Saharawat, 2002(1) HLR 336. C.R. No. 580 of 2007 [3] On the other hand, learned counsel for the respondent submitted that though the respondent is Medical Graduate as she had passed her MBBS examination, but in the present time this is no qualification as it is the era of super specialization, where even MD/MS is also a kind of basic qualification where further expertise is made by the degree of Doctor of Medicine (DM). The respondent is entitled for a comfortable living in consonance with the status of the petitioner, who is a well qualified person and is well placed in life. Presently, just with a view to harass the respondent, he has left his lucrative job and he is living in a palatial bungalow. The stand that he has to support his old parents is totally misconceived as father of the petitioner is a pensioner having retired from a good employment. The respondent does not have any residence to live. However, she submitted that keeping in view the present scenario, she is not claiming any amount on account of pursuing her higher education as it is very difficult to make her both hands meet. Though she is MBBS qualified, but is not earning enough as she, after being out of the job, had opened a clinic from where she is barely able to earn the amount which is enough to cover up the establishment cost. She has to commute in a bus to the clinic which is in a rented accommodation. As far as the contention of the petitioner regarding respondent's being capable of earning at least Rs. 13,000/- per month is concerned, it was submitted even the petitioner is also capable of earning Rs. 1,50,000/- per month, as he was earning earlier. Heard learned counsel for the parties and perused the record. The fact that the petitioner is a qualified Engineer and was earlier working in USA at a good salary and also the fact that the respondent is a qualified MBBS doctor is not denied. Another fact, which has come on record, is that in the income tax returns filed for the years 2005-06, the petitioner had shown his total income at Rs. 4,18,660/-, which is about Rs. 35,000/- per month. Though the respondent claimed that the petitioner is having about Rs. 27,00,000/- in cash and on that interest is being earned, but the petitioner admitted that the amount is merely Rs. 7,00,000/- to Rs. 8,00,000/- on which interest is earned. However, the same has been declared in the income tax returns filed. As far as claim of the petitioner that he is not liable to pay any amount to the respondent to enable her to pursue her higher studies is concerned, I do not consider it necessary to deal with the same for the reason the stand taken by the respondent at the time of arguments was that she was no more pursuing the higher studies and she required the money only for her maintenance. The fact that the petitioner is living in the house which is admittedly owned by his mother and also that the petitioner is the only son is not in dispute. It also remained undisputed in the pleadings before the learned court C.R. No. 580 of 2007 [4] below that father of the petitioner is highly educated person who retired as Head of Biology Department, Sainik School, Kapurthala. Though the respondent was having a job earlier but presently she was no more in any service. The contention that the respondent is trying to take out money from the petitioner by sitting idle is also misconceived for the reason that it was admitted by the respondent, who was present in person in Court, that she is running a private clinic at present from a rented accommodation and out of the income generated therefrom, she is hardly able to meet the establishment expenses for the clinic such as rent and salary of attendants etc. She is living at Delhi where substantial amount is needed for mere survival. It is also an admitted fact on record that at the time of consideration of the anticipatory bail filed by the petition, this Court, vide order dated 13.7.2006, had fixed an interim maintenance of Rs. 10,000/- per month, as conceded by the parties at that time. However, it was clarified therein that the same shall be adjustable in the amount fixed by the court later on. That amount cannot be said to be final, as is sought to be pleaded by the petitioner, for the reason that in the present proceedings, the amount has been determined by the court considering the material on record. The maintenance is payable to the spouse claiming it considering the income of the other spouse, as she is also entitled to live in the same comfort till such time the parties part ways. For the reasons mentioned above, I do not find any reason to interfere in the impugned order. Accordingly, the revision petition is dismissed. (Rajesh Bindal) Judge January 13,2008 mk