# Smt. Prabha v. Kapil Kumar Singh

- **Citation:** (2019) 2 ILRA 924
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2019-08-14
- **Case number:** First Appeal No. 188 of 2017
- **Bench:** Sudhir Agarwal, Rajeev Misra
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-prabha-v-kapil-kumar-singh-44805
- **Pages:** 6

## Headnote

A. Hindu Marriage Act, 1955 - Section 24 -
Interim maintenance - Object - To provide
interim maintenance so that the parties in
whose favour maintenance is awarded is
able to support herself - Relevant factor -
Petitioner's own income and the income of
the respondent. (Para 12)
Husband Petition for dissolution of marriage -
Wife moved application for interim maintenance
- Court below, awarded a lump sum amount of
Rs. 5000/- towards litigation expenses & a sum
of Rs. 3,000/- towards interim maintenance for
the wife and her minor son - Sum of Rs. 3,200/-
was already awarded to the wife & to his minor
son, towards interim maintenance in proceedings
under section 125 Cr.P.C - Amount paid under
section 125 Cr.P.C. was to be adjusted - For all
practical purposes, no amount of interim
maintenance was awarded under section 24 of
Act 1955 - Wife First Appeal before High Court
Held: - High Court modified the judgement by
directing that wife shall be entitled to a sum of
Rs.
6,000/-
per
month
towards
interim
maintenance i.e. Rs. 4000/- for herself and Rs.
2,000/- for minor son. However, the amount of
maintenance paid and awarded under section
125 Cr.P.C. shall be adjusted. (Para 20)
First Appeal allowed (E-5)
List of cases cited: -

## Text

924 INDIAN LAW REPORTS ALLAHABAD SERIES
(2019)10ILR A 924

APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 14.08.2019

BEFORE

THE HON'BLE SUDHIR AGARWAL, J.
THE HON'BLE RAJEEV MISRA, J.

First Appeal No. 188 of 2017

Smt. Prabha ...Appellant
Versus
Kapil Kumar Singh ...Respondent

Counsel for the Appellant:
Sri Shiv Shankar Pd Gupta, Sri S.S.P.
Gupta

Counsel for the Respondent:
Sri Arun Kumar Srivastava, Sri Abhishek
Kumar Yadav, Sri Amit Kumar Srivastava,
Sri Arun Kumar Vishvakarma, Sri Arun
Kumar Srivastava, Sri Bhola Nath Yadav.

A. Hindu Marriage Act, 1955 - Section 24 -
Interim maintenance - Object - To provide
interim maintenance so that the parties in
whose favour maintenance is awarded is
able to support herself - Relevant factor -
Petitioner's own income and the income of
the respondent. (Para 12)
Husband Petition for dissolution of marriage -
Wife moved application for interim maintenance
- Court below, awarded a lump sum amount of
Rs. 5000/- towards litigation expenses & a sum
of Rs. 3,000/- towards interim maintenance for
the wife and her minor son - Sum of Rs. 3,200/-
was already awarded to the wife & to his minor
son, towards interim maintenance in proceedings
under section 125 Cr.P.C - Amount paid under
section 125 Cr.P.C. was to be adjusted - For all
practical purposes, no amount of interim
maintenance was awarded under section 24 of
Act 1955 - Wife First Appeal before High Court
Held: - High Court modified the judgement by
directing that wife shall be entitled to a sum of
Rs.
6,000/-
per
month
towards
interim
maintenance i.e. Rs. 4000/- for herself and Rs.
2,000/- for minor son. However, the amount of
maintenance paid and awarded under section
125 Cr.P.C. shall be adjusted. (Para 20)
First Appeal allowed (E-5)
List of cases cited: -
1. Neeta Rakesh Jain Vs Jeetmal Jain (2010) 12
SCC 242
2.Manish Jain Vs Akansha Jain (2017) 15 SCC 801
3.Lalta Prasad Kushwaha Vs Jayanti Kushwaha
(2019) 2 ADJ 12

(Delivered by Hon'ble Rajeev Misra, J.)

1. This is defendant's appeal under
section 19 of Family Court Act, 1984
(hereinafter referred to as 'Act 1984') arising
out of judgement and order dated 24.4.2015,
passed by Principal Judge, Family Court,
Mathura in Misc. Case No. 294 of 2010 (Smt.
Prabha Vs. Kapir Kumar Singh) under section
24 of Act 1984, in Marriage Petition No. 294
of 2010 (Kapil Kumar Singh Vs. Smt.
Prabha), whereby application (paper no. 4 Ga)
filed by defendant-appellant for interim
maintenance has been decided to the
dissatisfaction of plaintiff-appellant.

2. We have heard Mr. S.S.P. Gupta,
learned counsel for defendant-appellant.
Inspite of revision of cause list, no one
has appeared on behalf of defendantrespondent even though names of five
advocates namely, Mr. Amit Kumar
Srivastava, Mr. Arun Kumar Srivastava,
Mr. Abhishek Kumar Yadav, Mr. Arun
Kumar Vishvakarma and Mr. Arun
Kumar Srivastava are printed in cause list.

3. Plaintiff-respondent, Kapil Kumar
Singh filed Marriage Petition No. 294 of
2 All. Smt. Prabha Vs Kapil Kumar Singh
925
2010 (Kapil Kumar Singh Vs. Smt.
Prabha) for a decree of dissolution of
marriage of parties. As per plaint
allegations, marriage of parties was
solemnized at Central Goat Research
Centre, Makhdoom Farrah, Tehsil and
District Mathura on 28.2.2008. According
to
plaintiff-respondent,
conduct
of
defendant-appellant was unbecoming of a
wife. To the contrary her conduct towards
plaintiff-respondent
and
his
family
members
was
full
of
cruelty.
Consequently, the basis of suit for
dissolution of marriage was cruelty which
is a ground recognized in law for grant of
dissolution of marriage, as per section 13
(i) (a) of Hindu Marriage Act, 1955
(hereinafter referred to as 'Act 1955').

4. Notices were issued to defendantappellant. She accordingly appeared in
Marriage Petition No. 294 of 2010 (Kapil
Kumar Singh Vs. Smt. Prabha) and filed
an application dated 16.8.2011 (paper no.
4 Ga) for interim maintenance for herself
and her minor child and also litigation
expenses as contemplated under section
24 of Act 1955. By means of aforesaid
application, defend-appellant alleged that
plaintiff-respondent is employed in R.S.
Infra Project Pvt. Ltd. Greater Noida and
is drawing salary to the tune of Rs.
18,000/- per month. It was further stated
that plaintiff-respondent has an income of
Rs. 35,000/- from Agricultural Land.
Father-in-law of defend-appellant has
superannuated from his services in the
Irrigation Department of Government of
U.P. He has received Rs. 50,000/- towards
fund and gratuity. He is also getting Rs.
20,000/- per month towards pension.
According to defendant-appellant, she is
unemployed. The son born out of wedlock
of parties is too young. No arrangement
has been made by plaintiff-respondent for
maintenance of his wife and minor son.
As such it was prayed that defendantappellant be awarded interim maintenance
to the tune of Rs. 15,000/- and a sum of
Rs. 12,000/- towards litigation expenses.

5. Plaintiff-respondent contested the
application
for
interim
maintenance
(paper no. 4-Ga) filed by defendantappellant. He accordingly, filed his
objections dated 16.5.2012. According to
plaintiff-respondent, all the expenses
which were incurred in delivery of child
were borne by plaintiff-respondent. The
salary of plaintiff-respondent is Rs. 9008
and not Rs. 18,000/- as alleged by
defendant-appellant.
The
plaintiffrespondent has no agricultural income. As
plaintiff-respondent is residing separately
from his father, he has no concern with
finance available with father-in-law of
defendant-appellant. It was also alleged
that defendant-appellant is working as a
teacher in Ideal Public Junior High
School, Farrah Tehsil, District Mathura,
from where she is getting salary at the rate
of Rs. 10,000/- per month. Apart from
above, defendant-appellant also earns Rs.
10,000/- from private tution. Father-inlaw of plaintiff-respondent is working as
Technical
Officer
at
Central
Goat
Research Institute, Makhdoom Farrah,
from where he is getting a salary of Rs.
50,000/- per month. Father-in-law of
plaintiff-respondent also has some tenure
recorded in his favour from which he
earns about Rs. 2,00,000/- per annum.

6. After exchange of pleadings,
Court
below
proceeded
to
decide
application for interim maintenance filed
by defendant-appellant. Upon evaluation
of material on record, Court below
concluded that as per salary bill dated
1.5.2014, salary of plaintiff-respondent is
926 INDIAN LAW REPORTS ALLAHABAD SERIES
Rs. 10,603/-. From the perusal of
Khatauni 1413 to 1418 Fasli, it is
established that plaintiff-respondent is
recorded co-tenure holder along with
Balbir Singh of Khatauni Khata No. 1447
area 0.729 hectares. As such, Court below
concluded that plaintiff-respondent has
some tenure recorded in his favour.

7. The defence raised by plaintiffrespondent that defendant-appellant is
working in an institution and drawing a
salary of Rs. 10,000/- could not be
established
by
plaintiff-respondent.
Similarly,
plea
raised
by
plaintiffrespondent that defendant-appellant earns
Rs.10,000/- from tuition also could not be
established
by
him.
Court
below
concluded that defendant-appellant has no
source of income and therefore, she is
unable to maintain herself and her minor
child. Accordingly, Court below opined
that interest of justice shall be served in
case some amount towards interim
maintenance is granted to defendantappellant after deducting the amount
already paid pursuant to direction issued
under section 125 Cr.P.C.

8. It is pertinent to mention here that
vide order dated 1.6.2012 defendantappellant has been awarded a sum of Rs.
2000/- towards maintenance for herself
and a sum of Rs. 1,200/- has been
awarded to minor child of defendantappellant. As such, a total sum of Rs.
3,200/- has been awarded. Court below,
however, very curiously awarded a sum
of
Rs.
3,000/-
towards
interim
maintenance for defendant-appellant and
her minor son. The amount paid under
section 125 Cr.P.C. was to be adjusted.
Apart from the above, a lump sum amount
of Rs. 5000/- was given towards litigation
expenses. With the aforesaid directions,
Court below decided application for
interim maintenance filed by defendantappellant vide order dated 25.4.2015.
Dissatisfied
with
the
order
dated
25.4.2015, defendant-appellant has come
up in appeal before this Court.

9. Learned counsel for defendantappellant in support of appeal has
submitted that it is an undisputed fact that
compensation to the tune of Rs. 3,200/-
was already awarded to defendantappellant and her minor son. However,
Court below in proceedings under Section
24 of Act 1984, has awarded a sum of Rs.
3,000/- towards interim maintenance and
litigation expenses, which have been
quantified at Rs. 5000/-. Further, while
granting benefit to defendant-appellant
under section 24 of Act 1955, Court
below has also directed that amount
payable under section 125 Cr.P.C. shall
be adjusted. Thus, for all practical
purposes,
no
amount
of
interim
maintenance has been awarded by Court
below to defendant-appellant and her
minor son under section 24 of Act 1955.
He thus submits that the impugned order
passed by Court below is liable to be set
aside/modified by this Court.

10. It is next submitted that it is an
admitted position that salary of plaintiffrespondent is Rs. 10,603/- per month. It is
also proved on record that certain tenure
is recorded in favour of plaintiffrespondent. Taking these two undisputed
facts into account, Court below ought to
have
sympathetically
considered
application filed by defendant-appellant
for interim maintenance. However, Court
below while passing impugned order has
completely
ignored
the
undisputed
position as noted herein above, rendering
the impugned order arbitrary.
2 All. Smt. Prabha Vs Kapil Kumar Singh
927

11. Before proceeding to consider
the submissions urged by learned counsel
for defendant- appellant, it shall be useful
to refer to provisions of Section 24 of Act
1955 which provides for payment of
interim
maintenance
and
litigation
expenses. The same is reproduced herein
below:

"24. 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 be, 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:

Provided that the application for the
payment of the expenses of the proceeding
and such monthly sum during the
proceeding shall, as far as possible, be
disposed of within sixty days from the
date of service of notice on the wife or the
husband, as the case may be."

12. The object of Section 24 of Act
1955 is to provide interim maintenance so
that
the
parties
in
whose
favour
maintenance is awarded is able to support
itself. As such, the meaning of term
"maintenance" and 'support' needs to be
referred to, as is defined in Black's Law
Dictionary (6th Edn., pp.953-54) thus:

" ... The furnishing by one person to
another, for his or her support, of the
means of living, or food, clothing, shelter,
etc. particularly where the legal relation
of the parties is such that one is bound to
support the other, as between father and
child, or husband and wife."

13. Likewise, the word "support" as
defined in the said dictionary (p. 1439)
reads as under:

"That which furnishes a livelihood; a
source or means of living; subsistence,
sustenance, maintenance, or living. In a
broad sense the term includes all such
means of living as would enable one to
live in the degree of comfort suitable and
becoming to his station of life. It is said to
include anything requisite to housing,
feeding,
clothing,
health,
proper
recreation, vacation, traveling expense,
or other proper cognate purposes; also,
proper
care,
nursing,
and
medical
attendance in sickness, and suitable
burial at death."

14. From perusal of Section 24 of Act
1955, it is apparent that there is only one
indicator in the section, which shall be taken
into account by a Court for the purpose of
awarding interim maintenance. Similarly in
the entire act of 1955, there is no provision,
which provides relevant factors to be looked
into by a Court while awarding interim
maintenance or factors which are required
to be ignored by a Court while awarding
interim maintenance. In Neeta Rakesh Jain
Vs. Jeetmal Jain, 2010 (12) SCC 242 Court
has considered relevant factors, which are
required to be taken into consideration by a
Court while deciding an application under
Section 24 of Act 1955. Paragraphs 9 and
10 of aforesaid judgement are relevant for
the controversy in hand. Accordingly, the
same are reproduced herein under:

"9. Section 24 thus provides that in
any proceeding under the Act, the spouse
928 INDIAN LAW REPORTS ALLAHABAD SERIES
who has no independent income sufficient
for her or his support may apply to the
court to direct the respondent to pay the
monthly maintenance as the court may
think reasonable, regard being had to the
petitioner's own income and the income of
the respondent. The very language in
which the section is couched indicates
that wide discretion has been conferred
on the court in the matter of an order for
interim
maintenance.
Although
the
discretion conferred on the court is wide,
the
section
provides
the
guideline
inasmuch as while fixing the interim
maintenance the court has to give due
regard to the income of the respondent
and the petitioner's own income.

10. In other words, in the matter of
making an order for interim maintenance,
the discretion of the court must be guided
by the criterion provided in the section,
namely, the means of the parties and also
after taking into account incidental and
other relevant factors like social status;
the background from which both the
parties come from and the economical
dependence of the petitioner. Since an
order for interim maintenance by its very
nature is temporary, a detailed and
elaborate exercise by the court may not
be necessary, but, at the same time, the
court has got to take all the relevant
factors into account and arrive at a
proper amount having regard to the
factors which are mentioned in the
statute."

15. Subsequently, Apex Court in
Manish Jain Vs. Akansha Jain, 2017
(15) SCC 801 has observed as follows in
paragraph 12:

"12. The Court exercises a wide
discretion in the matter of granting
alimony pendente lite but the discretion is
judicial and neither arbitrary nor capricious.
It is to be guided on sound principles of
matrimonial law and to be exercised within
the ambit of the provisions of the Act and
having regard to the object of the Act. The
Court would not be in a position to judge the
merits of the rival contentions of the parties
when deciding an application for interim
alimony and would not allow its discretion to
be fettered by the nature of the allegations
made by them and would not examine the
merits of the case. Section 24 of the HM Act
lays down that in arriving at the quantum of
interim maintenance to be paid by one spouse
to another, the Court must have regard to the
appellant's own income and the income of the
respondent."

16. A Division Bench of our Court
in Lalta Prasad Kushwaha Vs. Jayanti
Kushwaha, 2019 (2) ADJ 12, after
considering aforesaid judgements of Apex
Court observed as follows in paragraphs
15 and 16:

"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 proceeding, it may, on 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.
2 All. Smt. Dr. Sarita Vs Sri Dr. Vikas Kanaujia
929

16. An order for maintenance pendente
lite or for costs of the proceedings is
conditional on the circumstance that the wife
or husband who makes a claim for the same
has no independent income sufficient for her
or his support or to meet the necessary
expenses of the proceeding. It is no answer to
a claim of maintenance that the wife is
educated and could support herself. Likewise,
the financial position of the wife's parents is
also immaterial. The court must take into
consideration the status of the parties and the
capacity of the spouse to pay maintenance
and
whether
the
applicant
has
any
independent income sufficient for her or his
support. Maintenance is always dependent
upon factual situation; the court should,
therefore, mould the claim for maintenance
determining the quantum based on various
factors brought before the court."

17. Upon perusal of impugned
judgement in the backdrop of judgements
referred to above, we find that Court below
has not adverted itself to the undisputed facts
that salary of plaintiff-respondent is Rs.
10,603/- and he also has recorded tenure in
his
favour.
The
plaintiff-respondent
deliberately
concealed
his
Agricultural
income from Court below. Court below
ought to have taken into consideration the
aforesaid factors and in that situation,
amount of interim maintenance awarded to
defendant-appellant would certainly have
been more than Rs. 3000/-.

18. There is another aspect of
matter. A sum of Rs. 3,200/- has been
awarded towards interim maintenance to
defendant appellant and her minor son in
proceedings under section 125 Cr.P.C. It
is impossible even to imagine as to how a
mother and a minor son can meet their
daily expenses with a meagre amount of
Rs. 3,200/-.

19. Considering the law laid down in
Neeta Rakesh Jain (Supra), and undisputed
facts of the present case as detailed above, we
are of the view that Court below has erred in
law in awarding a sum of Rs. 3000/- towards
interim maintenance to defendant-appellant
and her minor child under section 24 of Act
1955. Court below has further directed that
amount payable pursuant to order passed
under section 125 Cr.P.C. shall be adjusted.
The result of same is that no amount of
interim maintenance has been awarded to
defendant-appellant and her minor son.

20. In view of the discussions, made
herein above, we are of the view that
impugned judgement and order passed by
Court below needs to be modified to do
complete
justice
between
the
parties.
Accordingly, we allow this appeal, modify the
impugned judgement and decree passed by
Court below by directing that defendantappellant shall be entitled to a sum of Rs.
6,000/-
per
month
towards
interim
maintenance i.e. Rs. 4000/- for herself and Rs.
2,000/- for minor son. However, the amount
of maintenance paid and awarded under
section 125 Cr.P.C. shall be adjusted.

21. Appeal is, accordingly, allowed.
----------

(2019)10ILR A 929

APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 22.08.2019

BEFORE

THE HON'BLE SUDHIR AGARWAL, J.
THE HON'BLE RAJEEV MISRA, J.

First Appeal No. 31 of 2007

Smt. Dr. Sarita ...Appellant
Versus