The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) Nos.1797 & 23220 of 2017 (An application under Articles 226 & 227 of the Constitution of India) W.P.(C) No. 1797 of 2017 Manjusha Singhania @ Agarawalla -versus- … Petitioner Nimish Singhania … Opposite Party For Petitioner : Mr. B.Bhuyan,Sr. Advocate along with Ms.S.Sahoo, Advocate For Opposite Party : Mr. L.K.Moharana, W.P.(C) No. 23220 of 2017 Advocate Nimish Singhania … Petitioner Manjusha Singhania … Opposite Party -versus- For Petitioner : Mr. L.K.Moharana, Advocate For Opposite Party : Mr. B.Bhuyan,Sr. Advocate along with Ms.S.Sahoo, Advocate CORAM: HON’BLE MR. JUSTICE G. SATAPATHY DATE OF HEARING :17.03.2025 DATE OF JUDGMENT:15.05.2025 G. Satapathy, J. 1. The commonality of challenge in these two writ Petitions, one by wife and the other by husband is W.P.(C) Nos.1797 & 23220 of 2017 Page 1 of 16 to the impugned order dated 17.01.2017 passed by the learned Senior Civil Judge, Talcher in I.A. No.63 of
Legal Reasoning
2016 arising out of MAT Case No. 19 of 2016 directing the husband/father to pay pendente lite maintenance of Rs.45,000/- per month to wife and Rs.5000/- to the minor child w.e.f. 11.07.2016 in addition to direction for payment of litigation expenses of Rs.1,00,000/- to the wife in an application U/S.24 of Hindu Marriage Act, 1955 (in short, the “HMA”). 2. By the aforesaid impugned order, the learned trial Court has directed the husband to pay arrear maintenance amount and litigation expenses to the wife within one month of passing of order by authorizing the wife to receive maintenance for her minor child in addition to her own maintenance. For clarity, it needs to be emphasized that the petitioner in W.P.(C) No.23220 of 2017 who is the husband has prayed to set aside the impugned order, whereas the petitioner in W.P.(C) No.1797 of 2017 who is the wife seeks for enhancement of the maintenance granted to her vide
Decision
the impugned order. Accordingly, both the writ Petitions W.P.(C) Nos.1797 & 23220 of 2017 Page 2 of 16 are heard together and disposed of by this common judgment with the consent of learned counsel for the parties. 3. In the course of hearing, Mr. Lalit Kumar Moharana, learned counsel appearing for the husband while not disputing the status of the parties and grant of pendente lite maintenance to the child @ Rs.5000/- per month has submitted that the petitioner-husband is ready to pay Rs.6000/- to the child, since the husband’s income is very meager which is Rs.25,000/- per month from all sources and he has also incurred expenses towards rent for his accommodation, travel, EMI for the loan taken by him, food, clothing and medicine, but the learned trial Court ignoring such facts has erroneously directed the husband to pay Rs.45,000/- per month to the wife. It is further submitted by Mr. Moharana that the wife has not approached the Court with clean hands or in terms of Chapter-III of General Rules and Circular Orders(Civil) Vol.II (in short, GRCO) containing Rules under Hindu Marriage Act referred as “The Hindu Marriage and W.P.(C) Nos.1797 & 23220 of 2017 Page 3 of 16 Divorce Rules,1956 ( in short, the “Rules”) in which Rule-13 prescribes that every application for maintenance pendente lite, permanent alimony and maintenance or for custody, maintenance and educational expenses of minor children, shall state the average monthly income of the petitioner and the respondent the sources of these income, particulars of other movable and immovable property owned by them, the number of dependents on the petitioner and the respondent, and the names and age of such dependents, but the application of wife for pendente lite maintenance does not disclose the above factors and thereby, the claim of the wife ought to have been rejected on that score. On coming to the quantification of the pendente lite maintenance to the wife, Mr. Moharana learned counsel for the husband has submitted that the husband is working as a “Sales Executive” with Tirupati Enterprises, Jharsuguda since May-2023 and his current net annual income is Rs.3,00,000/-, but due to typographical error, the income of the husband has been shown by him in the W.P.(C) Nos.1797 & 23220 of 2017 Page 4 of 16 objection to the application for pendente lite maintenance in I.A. No.63 of 2016 to be net income of Rs.3,00,000/- per month, however, the husband cannot pay such a huge amount of Rs.45,000/- per month to the wife as pendente lite maintenance. Mr. Moharana, however, has alternatively submitted that since the petitioner is the husband, he cannot avoid his liability and at best, he can pay a sum of Rs.15,000/- per month to the wife. In summing up his argument, Mr. Moharana has submitted that since the impugned order has been passed in ignorance of Rule-13 of the Rules which is mandatory in nature, the impugned order may kindly be set aside. 3.1 On the contrary, Mr. Bibekananda Bhuyan, learned Sr. counsel who is being assisted by Ms. S. Sahoo, learned counsel for the wife has submitted that the husband is not only an affluent man, but also is earning Rs.5,00,000/- per annum from all sources which is very much clear from the admission of the husband in his objection for earning around Rs.3,00,000/- per month and purchase of building in W.P.(C) Nos.1797 & 23220 of 2017 Page 5 of 16 his name as well as spending lakhs of rupees towards his extravagant living and visiting places in India and abroad in pleasure trips and therefore, the impugned order directing the husband to pay Rs.45,000/- to the wife is quite meager and deserves to be enhanced since the husband can pay at least Rs.1,00,000/- per month to the wife. Accordingly, Mr. Bhuyan has prayed to enhance the pendente lite maintenance of the wife. 4. After having considered the rival submissions upon perusal of record, it appears that this Court by way of an order passed on 07.12.2027 in Misc. Case No.19893 of 2017 arising out of W.P.(C) No.23220 of 2017 has directed for staying operation of the impugned order as an interim measure subject to condition the husband going on paying a sum of Rs.20,000/- per month to the wife w.e.f. December- 2017 onwards and litigation expenses of Rs.75,000/- and it is stated by learned counsel for the husband that the husband has cleared up all the arrear dues in terms of the such interim order of this Court. The husband- father also does not dispute about paying pendente lite W.P.(C) Nos.1797 & 23220 of 2017 Page 6 of 16 maintenance to the child @ Rs.6,000/- per month and thereby, the impugned order with regard to payment of pendente lite maintenance the child only needs to be examined on the scope for enhancement, whereas it needs to be examined with regard to quantum of pendente lite maintenance to the wife in addition to its sustainability. 5. In this case, there is absolutely no dispute about the relationship between the parties, but grant of pendente lite maintenance in a proceeding of this nature is to be guided by the provision of Sec.24 of HMA which provides for grant of pendente lite maintenance, litigation expenses either of the spouses and the objective behind Sec.24 of HMA is intended to provide support to the spouse having no independent income sufficient for his/her support and necessary expenses of the proceeding, but the support for his/her requirement also implicitly includes the basic needs of the spouse like food, clothing and shelter. While quantifying pendente lite maintenance in a proceeding of this nature, the financial capacity of the spouse is W.P.(C) Nos.1797 & 23220 of 2017 Page 7 of 16 the critical factor and the Court has to examine the spouse’s actual income, reasonable expenses for his/her own maintenance and any dependents which he/she is legally obliged to support. In addition, the liabilities and financial commitments are also to be considered to ensure a balance and fair maintenance award. In this case, while challenging the impugned order with regard to pendente lite maintenance to wife, the husband has resorted to Rule-13 of the Rules which in fact has not been discussed in the impugned order, but fact remains that the parties are in litigating terms prior to 2016 and the narration of the facts also discloses allegation by the husband that the wife took away their son on 27.09.2012 by abandoning him and in this situation, this Court feels that soon there is a quietus to the dispute between the parties, it is better for the parties. Further, the present proceeding is for pendente lite maintenance arising out of a proceeding in MAT Case No.19 of 2016 for divorce between the parties. At this length of time, this Court does not wish to pass any order to relegate the parties to square one W.P.(C) Nos.1797 & 23220 of 2017 Page 8 of 16 by directing the learned trial Court to decide the application for pendente lite maintenance and litigation expense afresh for not following the provision Rule 13 of the Rules on the face of objective of the provision of Sec.24 of the HMA. 6. On consideration of facts, it is found that the couple has a son who was born on 10.08.2012 and the husband has not brought any material on record to indicate that the wife was earning for her and her child sustenance. Indisputably, the husband has purchased a house in the year 2009 which is, however, claimed by him to have purchased by taking loan, but no document is produced to evidence to suggest so. On the other hand, the learned trial Court has taken in the impugned order that the husband has purchased the aforesaid house out of his own savings and the other admitted fact is that the couple had gone to Gangtok, Darjeeling and many other places in abroad like New Zealand and Singapore in pleasure trips which is indicative of the income of the husband. Moreover, the husband in his objection has also stated his income to be W.P.(C) Nos.1797 & 23220 of 2017 Page 9 of 16 Rs.3,00,000/- per month which is of course claimed by learned counsel for the husband to be a typographical error, but if it is a typographical error, why the husband has not taken any steps for rectifying the same. Besides, the father of the husband is also having business entity in the name and style M/s. Micro Minerals. Even if the husband has purchased the house by taking loan and repaying it with an EMI of Rs.8333/- per month, but the house which has been purchased is stated to have been given on rent @ Rs.9000/- per month. Further, the husband is a titan member of lions club, Jharsuguda. The learned trial Court in the impugned order has also observed that the documents filed by the wife further reveals that the husband had obtained a loan of Rs.10,00,000/- from the HDFC bank in the year 2015 and he is repaying such loan by paying EMI of Rs.21,370/- which he has paid till the month of September, 2015. According to the husband, he has no dues or arrear to be paid to the wife in terms of the interim order passed by this Court by which the husband has been asked to pay Rs.20,000/- per month W.P.(C) Nos.1797 & 23220 of 2017 Page 10 of 16 and he has admitted to have paid it till March, 2025 w.e.f. December, 2017 for 87 months. 7. On a cumulative assessment of facts in the background of husband successfully paying a sum of Rs.20,000/- per month to the wife in terms of the order passed by this Court as an interim arrangement, this Court is unable to buy the assertion of the husband that his monthly income is Rs.25,000/- from all sources and the earning of the husband is much more than Rs.25,000/- per month. In view of the above facts and standard of living of the husband as demonstrated in the preceding paragraph on the context of present days cost of living, it can be safely and convincingly said that the income of the husband would not be less than Rs.2,00,000/-, but may be more than that up to Rs.3,00,000/- per month which he admitted in his objection, no matter claims the same to be a typographical error subsequently. 8. In order to have an equitable determination of financial support required to the wife and dependent child, it can be said that maintenance should be W.P.(C) Nos.1797 & 23220 of 2017 Page 11 of 16 determined after considering the status and life style of the parties, and their reasonable needs, educational qualification of the wife, so also her earning capacity as well as the financial standing and obligation of the husband and the rising cost of living on the face of inflation to ensure a standard of living that is proportionate to the husband’s financial capacity and commensurate to the standard of his living and the standard of living of the wife and children prior to their separation. True it is that there cannot be any straight jacket formula for fixing the amount, but the quantum of maintenance must be subjective to each case and dependent on various circumstance and factors, such as income of the parties; their conduct during subsistence of the marriage; their individual social and financial status; their personal expenses; their individual capacities and duties to maintain their dependents; the quality of life enjoyed by the wife during the subsistence of marriage and such other similar factors. At the same time, it is not only equitable, but also obligatory for father/mother to W.P.(C) Nos.1797 & 23220 of 2017 Page 12 of 16 provide maintenance to his/her children, which is apparent from the following observation made in Rajnesh Vrs. Neha and another; (2021) 2 SCC 324, wherein the Apex Court at paragraphs-91 & 92 has held as under:- for include expenses “91. The living expenses of the child food, would clothing, residence, medical expenses, education of children. Extra coaching classes or any other vocational training courses the basic complement education must be factored in, while awarding child support. Albeit, it should be a reasonable amount to be awarded for extracurricular/coaching classes, and not an overly extravagant amount which may be claimed. to 92. Education expenses of the children must be normally borne by the father. If the wife is working and earning sufficiently, the expenses may be shared proportionately between the parties.” 9. Sec. 24 of the HMA empowers the Court to grant pendente lite and litigation expenses, but the words used therein in the context makes the grant of pendente lite maintenance conditional, which cannot be granted unless the applicant has no independent income sufficient for his/her support and, therefore, the W.P.(C) Nos.1797 & 23220 of 2017 Page 13 of 16 grant of pendente lite and litigation expenses is dependent on those two words “no independent income” and “support”. In the context, the decision relied on by the husband in Manish Jain Vs. Akanksha Jain; (2017) 15 SCC 801 is very clear wherein the Apex Court in Paragraph-15 has held thus:- it may, on the proceeding, “15. Section 24 of the HM Act empowers the Court in any proceeding under the Act, if it appears to the Court that either the wife or the husband, as the case may be, has no independent income sufficient for her or his support and the necessary expenses of the application of any one of them order the other party to pay to the petitioner the expenses of the proceeding and monthly maintenance as may seem to be reasonable during the proceeding, having regard to also the income of both the applicant and the respondent. Heading of Section 24 of the Act is “Maintenance pendente lite and expenses of proceedings”. The Section, however, does not use the word “maintenance”; but the word “support” can be interpreted to mean as Section 24 is intended to provide for maintenance pendente lite.” 10. What is more important is that, the child “son” of the estranged couple was born on in the year 2012 and he must be around 13 years right now and, W.P.(C) Nos.1797 & 23220 of 2017 Page 14 of 16 therefore, this Court has to see his requirement for maintenance and sustenance as well as his educational expenses in the standard of living of his father. In the above premises and discussion of facts & law as narrated above together with capacity and status of the parties makes it very clear that the pendente lite maintenance as granted to wife is little bit on higher side and interest of justice would be best served, if the pendente lite maintenance, as granted to the wife is reduced to Rs.25,000/- per month, whereas the same is enhanced to Rs.15,000/- for the son, but this Court does not consider it proper to interfere with litigation expenses of Rs.1,00,000/- as awarded by the learned trial Court to the wife by taking into consideration the length/period of litigation. Accordingly, the modified amount of pendente lite maintenance is payable w.e.f. the date of application and arrear of such amount be cleared up in monthly installments, but the number and amount of the installment shall be decided/fixed by the learned trial Court. Hence, the wife and son are entitled to Rs.25,000/- and Rs.15,000/- per month as pendente W.P.(C) Nos.1797 & 23220 of 2017 Page 15 of 16 lite maintenance. Further, the wife is authorized to receive the pendente lite maintenance for herself and for her son till disposal of the MAT case. 11. In the result, the W.P.(C) No.1797 of 2017 stands dismissed, but W.P.(C) No.23220 of 2017 stands allowed to the extent indicated above. Parties are directed to bear their cost. (G. SATAPATHY) JUDGE Orissa High Court, Cuttack, Dated the 15th day of May, 2025/Kishore Signature Not Verified Digitally Signed Signed by: KISHORE KUMAR SAHOO Reason: Authentication Location: High Court of Orissa Date: 15-May-2025 14:26:21 W.P.(C) Nos.1797 & 23220 of 2017 Page 16 of 16