$~4 * IN THE HIGH COURT OF DELHI AT NEW DELHI DECIDED ON:
21. 10.2013 + MAT.APP. (F.C.) 27/2013 CM APPL.12212, 12213 & 12214/2013 MR ROHIT SHARMA ..... Appellant Through: Mr. Abhik Kumar, Advocate. Versus MRS SONIA SHARMA Through: None. ..... Respondent CORAM: HON'BLE MR. JUSTICE S. RAVINDRA BHAT HON'BLE MR. JUSTICE NAJMI WAZIRI MR. JUSTICE S.RAVINDRA BHAT (OPEN COURT) 1. This appeal is directed against an order of the Family Court dated 26.03.2013 whereby the learned Judge upon application under Section 24 of the Hindu Marriage Act fixed maintenance pendente lite in favour of the respondent wife @ `5,000/- per month.
2. The undisputed facts are that the appellant married the respondent on 10.03.2008 in Delhi. The couple does not have any child. The appellant works with the NIIT Technologies Ltd. in Gurgaon and earns approximately `25,000/- per month. Claiming that she does not have any independent source of income, the respondent wife moved the Court under Section 24, after the husband preferred a petition for divorce. Concededly, the wife had earlier moved an application for maintenance under Section 125 Cr.P.C. which was dismissed on 22.05.2012. It is also a matter of record that the wife had moved under Section 12 of the Protection of MAT.APP (FC)27/2013 Page 1 Women from Domestic Violence Act, 2005 and has been granted maintenance @ `7000 per month. The appellant has carried that matter in appeal.
3. Counsel for the appellant urged that the Family Court fell into error in not appreciating the order of the Principle Judge, Family Court dated 22.05.2012 made under Section 125 Cr.P.C. Counsel particularly emphasized upon the observations in paragraphs 7 and 8 of that order to state that the respondent wife had earlier been employed and that the documents pertaining to those facts and the bank account statements produced in those proceedings persuaded the learned Judge to dismiss the application under Section 125. It was emphasized that the respondent wife is a career oriented woman and has been working. In these circumstances, submitted the counsel, the impugned order directing payment of Rs.5,000/per month was not justified. Learned counsel has also relied upon the judgment of this Court in Damanpreet Kaur v. Indermeet Juneja & Anr. (Crl. Rev.P. 344/2011, decided on 14.05.2012).
4. This Court has considered the submissions. The Family Court, in the present instance, took into account the income affidavit filed by the appellant husband as well as the other relevant materials such as the previous order and then proceeded to hold as follows:
“8. In the case in hand the factum of marriage stands admitted. It is also admitted case that there is no issue born out of the wedlock. Applicant/wife has taken a plea that she is totally depended (sic) on her parents and has no source of income to maintain herself. In her affidavit she has stated that she has done one year certificate course in Modern Office Management and previously she worked as Team Leader - Tele marketing from September, 2008 to February, 2010. She has further stated that thereafter she submitted her resignation and at present she is not working. MAT.APP (FC)27/2013 Page 2 9. The non-applicant/husband has taken a plea that applicant/wife is working and she has taken this plea only to misguide this court. He has not stated as to where she is working at present. Applicant/wife was working but fact remains that at present applicant/wife is not working. Whether she has herself left the job or due to circumstances created by non-applicant/husband she had to resign is the question which needs trial and cannot be decided at this stage. The fact remains that applicant/wife at present is not working anywhere.
10. The Non-applicant/husband in his affidavit of income has stated that he has the liability to maintain his old aged parents but he has also stated that he has a brother, Bhabhi and a nephew which means that his other brother can also maintain his parents. Moreover non-applicant/husband is earning Rs.23,000/- per month as per his affidavit of income. So far as liability is concerned he himself has stated that there is no one dependent upon him which means that he has no other liability accept to maintain the applicant/wife. In the reply, non-applicant/husband has stated that he is living in rented accommodation & in his expenditure column in his affidavit he has mentioned that he is paying the rent of Rs.4500/including electricity bill and water bill which means that still he has Rs.19,000/- in his hand.”
5. The Court then held that having regard to the conspectus of circumstances, the appellant should pay `5,000/- per month to the wife from the date of the application till disposal of the divorce petition.
6. This Court is conscious of the fact that though the order under section 24 is itself in the nature of final proceedings, nevertheless it is in order to assure sustenance and interim relief to the person moving it during the pendency of the main dispute, i.e., divorce or other proceedings claiming substantive relief under the Hindu Marriage Act. The scope of appellate review in such instances would necessarily be different from the compulsive jurisdiction which the Court would exercise in the event of final determination such as decree for dissolution or a judgment declining the divorce. In this Court’s opinion there is a greater degree of deference MAT.APP (FC)27/2013 Page 3 required to be given to the discretion exercised by the Trial Court unless the appellant is able to show glaring instances of overlooking of material evidence or an approach which is manifestly or patently erroneous or unsustainable in law. In the present case, the appellant husband’s affidavit clearly stated that he was earning `23,000/- approximately, net - in cash. The order of the Principal Judge declining relief under Section 125 Cr.P.C. was premised upon the wife being capable of earning since the documents available at that stage indicated that she had worked till 31.03.2010. However, the situation has now changed since the appellant moved the Family Court for divorce. In these circumstances, the Court is of the opinion that the Award of `5,000/- per month cannot be held to be unjustified or unreasonable.
7. The appeal is, therefore, without merit and is accordingly dismissed along with all the pending applications. S. RAVINDRA BHAT (JUDGE) NAJMI WAZIRI (JUDGE) OCTOBER21 2013 /vks/ MAT.APP (FC)27/2013 Page 4