Sanjay Kumar Jha v. Premsheela Devi)
Case Details
IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.16180 of 2012 ====================================================== Rajesh Kumar S/o Yogeshwar Jha, R/o village Tetri, P.S. Naugachia, District- Bhagalpur at present residing with Yogeshwar Jha, opposite Vidya Ashram, Near Cooperative Bank, P.O. Adampur, P.S. Adampur, District Bhagalpur. .... .... Petitioner/s Versus Annapurna Jha @ Baby, W/o Rajesh Kumar, R/o Flat No. 202, Shivam Apartment, Tilkamanhji Chowk, Tilkamanjhi, P.S. Tilkamanjhi, District- Bhagalpur .... .... Respondent/s ====================================================== Appearance : For the Petitioner/s : Mr. Piyush Lall For the Respondent/s : Mr. R.K. Singh-2, Adv. : Mr. Ajay Kumar, Adv. ====================================================== CORAM: HONOURABLE MR. JUSTICE VIKASH JAIN C.A.V. ORDER 5. 16.04.2013 This petition has been filed against the order dated 21.05.2012 passed by the learned Principal Judge, Family Court, Bhagalpur in Matrimonial Case No. 105/2006 instituted under Section 13(1) of the Hindu Marriage Act, 1955 directing the petitioner, inter alia, to pay Rs. 2,000/- per month as interim maintenance and also Rs. 300/- per date as litigation cost to the respondent concerned; as well as for a direction to the learned Principal Judge, Family Court, Bhagalpur not to allow interim maintenance to the respondent in the said matrimonial case. 2. The short issue raised in the present petition by the petitioner is that the learned Principal Judge has directed payment of interim maintenance and litigation 2
Facts
Patna High Court CWJC No.16180 of 2012 (5) dt.16-04-2013 2 / 5 cost to the respondent pendente lite, without however considering that Section 24 of the Hindu Marriage Act contemplates that such amounts may be payable to either spouse who has no independent income and having regard to the income of each of the parties. It is shown from the impugned order that the learned Principal Judge has passed the direction against the petitioner to pay Rs. 2,000/- per month as interim maintenance as well as a sum of Rs. 300/- per date as litigation cost to the respondent, without however observing the mandatory requirements of prima facie ascertaining the income of the petitioner and of the respondent. 3. Learned counsel for the petitioner has relied upon on the following two decisions of this Court to embellish his submissions (i) 2007 (4) PLJR 125 (Sanjay Kumar Jha Vs. Premsheela Devi) (ii) 2007 (4) PLJR 652 (Vikash Kumar Debey Vs. Savita Devi). In 2007 (4) PLJR 125 (Sanjay Kumar Jha Vs. Premsheela Devi) this Court has opined that “….without coming to any prima facie conclusion with regard to the income of the petitioner, the court below ought not to have granted he amount of Rs. 4000/- as ad interim maintenance as any such payment of maintenance pendent elite has to take into consideration the income of 3 Patna High Court CWJC No.16180 of 2012 (5) dt.16-04-2013 3 / 5 the party who has been directed to pay the amount. In a case under Section 24 of the Hindu Marriage Act the direction of the law is that the spouse who is earning should pay the ad interim maintenance to the spouse who does not have any means of income and thus, the court below is required to carefully examine the matter regarding the income of both the parties before ordering any ad interim maintenance to be paid under that provisions”. In 2007 (4) PLJR 652 (Vikash Kumar Debey Vs. Savita Devi) similar observations have been made to the
Legal Reasoning
effect that “….the Court should also prima facie determine the income of the husband and wife in order to grant maintenance pendente lite to the applicant spouse”. 4. It has further been submitted that the learned Court has erred in directing the petitioner to pay the amounts without conducting any inquiry whatsoever with regard to the income of the respective parties and in the absence of materials on record in this behalf. The stand of the petitioner that he has no independent income rather his expenses are being met out of his father’s pension income, as also his claim that the respondent herself had independent income of her own, have not been given due weight. In other words the Court on the basis of some prima facie materials is required to first determine who of the two is the weaker party entitled to 4 Patna High Court CWJC No.16180 of 2012 (5) dt.16-04-2013 4 / 5 the benefit of Section 24 of the Hindu Marriage Act. It is submitted that apart from narrating the stand of the respective parties the Court itself has not given any reasons whatsoever for its conclusion and has simply directed the petitioner to make the payments to the respondent. 5. Learned counsel for the respondent on the other hand has relied upon three decisions of this Court as follows: (i) 2010 (1) PLJR 785 Samant Bhadra Vs. Kumari Rashmi Priyadarshni (ii) 2012 (1) PLJR 34 Chulhai Prasad Singh Vs. The State of Bihar & Ors. (iii) 2012 (4) PLJR 555 Vijay Kumar Sinha Vs. Smt. Anamika. It has been contended on behalf of the respondents that the husband-petitioner would be liable to make payment out of family funds, and that after all he is bearing his own litigation cost with regard to the divorce case filed by him. Moreover, it is submitted that non-disclosure of his income would not absolve him from his duty of maintaining the respondent. 6. Having heard the rival submissions of the parties and having gone through the decisions relied on, this Court is of the view that prima facie determination of the income, if any, of the respective parties is required to be made on the basis of materials, before one or the other party is saddled with the burden of making payment of 5 Patna High Court CWJC No.16180 of 2012 (5) dt.16-04-2013 5 / 5 maintenance and litigation cost pendente lite. The learned Court has clearly failed to do so. 7. In these circumstances, the impugned order dated 21.05.2012 is therefore set aside with a direction to pass fresh orders without undue delay in accordance with law.
Decision
8. The writ petition stands disposed of. Fahad. ( Vikash Jain, J. )