The Lucknow Bench of the Allahabad High Court while dismissing an appeal said that it is the sacred duty of an ably bodied husband or father, towards his wife and children to maintain them in all circumstances.
The Division Bench of Justice Vivek Chaudhary and Justice Om Prakash Shukla passed this order while hearing an appeal filed by Arun Pandey.
The Appeal having been filed under Section 19(1) of Family Court Act, 1984 is directed against an order dated 23.09.2024 passed by the Additional Principal Judge, Family Court, Lucknow under Section 24 of Hindu Marriage Act, whereby the Family Court has directed the petitioner(husband) to pay one time Rs 50,000 for legal activities (litigation expenses) to the opposite party(wife) in the case and also directed him to pay one time Rs 10,000 as litigation costs and Rs 500 per hearing, within 30 days from the date of order.
The facts of the case are that the marriage between Arun Pandey and Neha Pandey was solemnized on 23.01.2011 and out of the said wedlock, one son was born on 05.11.2015. Apparently, the matrimonial relation between the parties became strained and due to indifference the opposite party started living separately.
In the aforesaid background, the appellant filed a divorce suit under Section 13 of Hindu Marriage Act,1955, bearing Matrimonial Case before the Additional Principal Judge, Family Court, Lucknow, wherein, the respondent moved an application under Section 24 of Act of 1955, seeking pendente-lite maintenance.
On 23.09.2024, the Family Court came to allow the application filed by the Respondent under Section 24 of Hindu Marriage Act,1955 challenged in the appeal.
Assailing the order dated 23.09.2024, under appeal, counsel for the appellant submitted that the Family Court has not considered the fact that the Respondent-Wife is living separately from the appellant without any plausible justification or any rhyme or reason and most importantly, the Family court has overlooked the fact that the department of the appellant has already directed him to pay Rs 67,538/- in fifteen installments for the maintenance of his family, which according to the learned counsel ought to had been factored in while awarding any amount to the Respondent/Wife.
Counsel for the appellant further submitted that the impugned order is totally illegal and arbitrary and is liable to be set aside.
The Court observed that,
Before coming to other facts submitted before us suffice would be to say that by the impugned order the Court has granted only the expenses which the wife is going to make in the divorce suit before the Family Court. Therefore, if any amount is being paid under the orders of the Department for maintenance of children, the same does not in any manner impact the expenses which the wife is required to make in the suit before the Family Court.
It further appears from the order dated 23.09.2024 that on the basis of evidence, the family court found and recorded finding(s) that appellant is a Colonel in Indian Army and he is having good source of income and family court has also given its finding that respondent has no source of income for her livelihood and her child as well as she is also not getting any maintenance.
It is no longer res Integra that a husband’s obligation to maintain his wife arises on marriage, whereas such an obligation towards the children arises on their birth. These obligations are imposed on him by operation of law. It is also a moral obligation imposed upon him and it would rather be ‘immoral’ and ‘illegal’ to deny them maintenance.
In a matrimonial proceeding, the wife and children are pitted against the husband or the father, as the case may be and in most of the cases they are not on equal footing. Some get financial support from their parents, brothers and sisters and also some work and earn, in exceptional cases. However, in all cases, the women and children are unable to face the onslaught of matrimonial proceedings because of their financial crisis, which tends to be exploited by the husbands.
The Court said that,
It is this precarious situation, which the provisions of section 24 of the Hindu Marriage Act, seeks to balance. In a matrimonial proceedings instituted under the personal laws, the wife can seek maintenance against the husband under the provisions of the Hindu Adoption & Maintenance Act as well as under the Hindu Marriage Act. The present issue emancipates from section 24 of the Hindu Marriage Act, which pertains to pendente-lite i.e during the pendency of the matrimonial proceedings.
The said provision is of great significance as it is in the nature of providing a stop-gap arrangement during the pendency of the matrimonial proceedings, wherein a wife without proper financial support, may not be able to defend her case diligently and may also be not placed equally like her husband. The said provision tends to create a fiction of equality, wherein the wife is tried to be brought equally, at least financially along with the husband, so that the matrimonial case initiated is pursued by both the parties suitably & equally. In a way, pendente-lite is an aid to the legal expenses, which the wife may have to spend for the litigation initiated by the husband or by herself under the provisions of the Hindu Marriage Act.
Time & again, the court held that the component of such maintenance includes a ‘reasonable and a fair’ amount for the woman to maintain herself ‘according to the mode of life to which she is accustomed to’, or ‘according to the status to which she is entitled to’, ‘or according to the mode or lifestyle to which her husband is accustomed to’. But, in any case, it cannot be for a luxurious mode of living or for ‘extravaganza’ and not beyond the means of the husband. In the case of children, this component also includes their educational expenses. They can be granted litigation expenses and monetary relief to cover their to and fro expenses to attend the Court and return to their homes.
“In the case, without there being any adjudication on the aspect as to whether the wife is staying away from the husband without any justifiable reason or not, the paramount interest of the wife is to be adjudged on the parameters given in Section 24 of the Hindu Marriage Act, namely, whether she has independent and sufficient income for her up keep or not.
There is no material brought on record to point out that the respondent wife has no independent source of income for her sustenance, whereas it has come on record that the Appellant- husband is a colonel in the Indian Army and draws a handsome salary.
In absence of any such material, the discretion which has been exercised by the family court by awarding Rs 50,000/- to the Respondent/Wife for filing of reply and an amount of Rs 10,000/- as well as Rs 500/- per hearing, to be paid within 30 days from the date of order by the appellant, cannot be interfered in the supervisory jurisdiction of the Court unless perversity is explained on the face of the record. In the opinion of the Court since there is no perversity in the impugned order, it does not call for any interference.
Thus, in view of the above, there is no illegality or infirmity in the order. For all the aforesaid reason, we do not find the Appeal to be a fit case for interference,” the Court further observed while dismissing the appeal.