HIGH COURT OF UTTARAKHAND AT NAINITAL Writ Petition No. 324 of 2005 (M/S) Smt. Upasana Gupta ………..Petitioner Versus Addl. Judge, Family Court, Roorkee And another. …….Respondents Shri Ram Ji Srivastava, Advocate for the petitioner, Shri Sharad Sharma, Senior Advocate assisted by Shri Kamlesh Lohani, Advocate for respondent no.2. Dated: May 13, 2010 Hon’ble V.K. Bist, J. Present writ petition has been filed by the petitioner challenging the impugned judgment and order dated 17.03.2005 passed by the learned Addl. Judge, Family Court, Roorkee, District Haridwar in Misc. Case No. 11 of 2004 ‘Smt. Upasana Gupta vs. Sanjeev Kumar Gupta’ whereby the application under Section 24 of the Hindu Marriage Act, 1955 (hereinafter referred to as the Act) was partly allowed and the respondent no.2- Sanjeev Kumar was directed to pay maintenance to the petitioner-Smt. Upasana Gupta @ 500/- per month from the date of filing the suit i.e. 24.09.2004. The respondent no.2 was directed to pay the arrears of maintenance in four equal installments in two months. Besides it, Rs. 1,000/- was directed to be paid towards the Advocate fee and Rs. 150/- per appearance in lieu of proceedings u/s 13 of the Act was directed to be paid till the date of decision. Petitioner has prayed that her application under Section 24 of the Act be allowed in toto. 2. Brief facts, as emerge out of the record, are that on 16.04.2001 the petitioner was married to respondent Sanjeev Kumar as per the Hindu rites. The couple is 2 issueless. It is alleged that husband of the petitioner and his parents often abused the petitioner and tortured her compelling her to meet their unlawful demand of various dowry items. In the marriage, dowry items including jewellery, utensils, clothes, furniture, electronic items etc. were gifted, but the respondent no.2 continued to pressurize her for more dowry, since the date of marriage. The respondent no.2 got obtained signatures of the petitioner on handwritten stamp papers and now he is compelling the petitioner to seek divorce. It has been alleged that the petitioner always tolerated the tortuous behaviour inflicted on her and the petitioner is not ready to divorce her husband. On 27.08.2004 the respondent no.2 filed a divorce petition under Section 13 of the Act before the Judge, Family Court, Roorkee on the basis of which a matrimonial Petition No. 29 of 2004 ‘Sanjeev Kumar Gupta vs. Smt. Upasana Gupta’ was registered. The respondent no.2 is not allowing the petitioner to live with him and under the compelling circumstances, the petitioner is residing with her father. It has been further stated that the petitioner has no source of income of her own and she is passing days with great difficulties. Father of the petitioner is not in a position to afford the needs of petitioner and the petitioner has every right to live life as per status of her husband. The respondent no.2 is a shopkeeper carrying on the business of general merchant from his shop situated at Subhash Nagar, Roorkee, from which he earns Rs. 50,000/- per month. The petitioner is not in a position to contest the divorce petitioner as she has no source of income, therefore she filed an application on 24.09.2004 under Section 24 of the Act before the Trial Court which was registered as Misc. Case No. 11 of 2004 with the averments that the respondent no.2 is 3 earning Rs. 50,000/- per month from his general merchant business and Rs. 25,000/- per month from the money landing business. She also submitted that she has no source of her livelihood and she has no money to defend herself in the divorce suit. On the other hand denying the allegations made in the application, the respondent no.2 filed his reply with the averments that on 20.01.2004 the petitioner left the house of the respondent no.2 on her own wishes and she also took with her all her jewellery given by her parents at the time of marriage. It is admitted in the objection that the respondent is carrying on a business of general merchant and is earning a consolidated sum of Rs. 2,000/- per month. The respondent has no other source of income. Having heard the learned counsel for the parties and upon perusal of the record, the learned Trial Court passed order on 17.03.2005 whereby the petition under Section 24 of the Act was allowed and the respondent no.2- Sanjeev Kumar was directed to pay maintenance to the petitioner-Smt. Upasana Gupta @ 500/- per month from the date of filing the suit i.e. 24.09.2004. The respondent no.2 was directed to pay the arrears in four equal installments in two months. Besides it Rs. 1,000/- was directed to be paid towards the Advocate fee and Rs. 150/- per appearance in lieu of proceedings u/s 13 of the Act was also directed to be paid till the date of decision. Aggrieved with the order of the learned Trial Court, the petitioner has filed the present petition seeking relief for setting-aside the impugned judgment and order dated 17.03.2005 and allowing the application filed by the petitioner u/s 24 of the Act in toto. 4 3. The respondent no.2 filed his counter affidavit in which the marriage solemnized in between the parties is accepted. The respondent denied the allegations of misbehaviour, abusing, torturing or illegal demand of dowry. It has been further submitted that nominal things were exchanged in the marriage. It is admitted that the filing of proceedings under Section 13 of the Act on 27.08.2004 was done after having failed to persuade the petitioner to discharge her matrimonial obligations, as there had been a deliberate desertion and the respondent was being deprived of his matrimonial harmony. It was admitted that the respondent no.2 is running a small shop of general merchandize and is earning very nominal income, therefore looking to the situation of the shop, the magnitude of business as well as the business viability, the income as depicted in the application under Section 24 of the Act, forming it as to be the basis for grant of proportionate maintenance, is misconceived. 4. I have heard Shri Ram Ji Srivastava, Advocate for the petitioner, Shri Sharad Sharma, Senior Advocate assisted by Shri Kamlesh Lohani, Advocate for respondent no.2 and perused the record. 5. Learned counsel for the petitioner submitted that the learned Trial Court ordered the respondent-husband to pay Rs. 500/- per month as maintenance of the petitioner and a meager sum of Rs. 1,000/- has been ordered to be paid towards legal expenses and Rs. 150/- as travelling expenses on each date. In this regard he referred Section 24 of the Act which deals with the maintenance pendente lite and expenses, which is being reproduced hereunder:- 5 “Maintenance pendente lite and expenses of proceedings. Where in any proceeding under this Act it appears to the Court that either the wife or the husband, as the case may, has no independent income sufficient for her or his support and the necessary expenses of the proceeding, it may, on the application of the wife or the husband, order the respondent to pay to the petitioner the expenses of the proceeding, and monthly during the proceeding such sum as, having regard to the petitioner’s own income and the income of the respondent, it may seem to the Court to be reasonable.” 6. Learned counsel for the petitioner argued that the petitioner is entitled for a sum of Rs. 15,000/- per month as her maintenance and Rs. 15,000/- towards the litigation expenses, but the Trial Court has erred in reaching to the above conclusion. He submitted that the Court below has awarded a meager sum of Rs. 500/- as monthly maintenance and in this dearness, it is not possible for any wife to maintain herself on the meager amount, specially when the wife has no source of her livelihood. He submitted that considering the facts and circumstances of the case, the amount of maintenance may be enhanced. On the other hand the learned Senior Counsel for the respondent argued that respondent no.2 is earning very nominal income, therefore looking to the magnitude of business as well as the business viability, the income as depicted in the application under Section 24 of the Act, forming it as to be the basis for grant of proportionate maintenance, is misconceived. 7. I have gone through the judgment and order passed by the learned Judge, Family Court, Roorkee. The learned Trial Court has assessed the income of the respondent- husband as Rs. 3,000/- per month on notional basis. The 6 Court below has relied on the income certificate of the respondent no.2 issued by the Tehsildar concerned. I am of the view that from a business like general merchant, a person would have earned much than the income assessed by the Trial Court. In regard to his source of income, no material evidence is produced by the respondent no.2 to discard the version of the petitioner. The marriage solemnized in between the petitioner and respondent no.2 is not disputed. Participation in the proceedings under Section 13 of the Act is also apparent. Nowhere it was established that the petitioner has any independent source of income. A person should have the responsibility to maintain his wife properly. The petitioner is still living with her father and she has no other source to maintain herself. The prices of the essential commodities are sky high and are increasing gradually. The petitioner has to maintain herself on the sum awarded to her as her maintenance. Although, the petitioner has alleged that the her husband is earning a sum of Rs. 50,000/- per month and she may be awarded a sum of Rs. 15,000/- as maintenance, but the income of the respondent is not proved, therefore her petitioner u/s 24 of Act cannot be allowed in toto. Rather in view of all these imperative facts and circumstances, I am of the opinion and that ends of justice will meet, in case, if the sum of Rs. 500/- per month awarded towards maintenance is enhanced to Rs. 1,500/- per month and the arrears thereof is directed to be paid by the respondent no.2 in four equal installments in four months from today. The impugned judgment and order dated 17.03.2005 passed by the learned Trial Court is liable to be modified to this extent only. 7 8. Accordingly, the writ petition is partly allowed. The respondent no.2 is directed to pay a sum of Rs. 1,500/- (Rs. One thousand five hundred) per month to the petitioner from the date of filing of application i.e. 24.09.2004. The arrears thereof shall be paid by the respondent no.2 in four equal installments in four months from today. 9. In the facts and circumstances of the case the parties shall bear their own cost. (V.K. Bist, J.) 13.05.2010 NCM: