ANTICIPATORY BAIL 580 of 2007 on 20 December 2005

IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH

Rajiv Malhotra v.

Smt. Abha Malhotra

Civil Revision No. 580 of 2007 (O&M)Date of decision: January 13, 2009

.. Petitioner

.. Respondent

CORAM: HON'BLE MR. JUSTICE RAJESH BINDALPresent: Mr. A. S. Chadha, Advocate for the petitioner. Mr. R. N. Sharma, Advocate for the respondent.

..

Rajesh Bindal J.

Challenge in the present petition is to the order passed by the learnedcourt below in an application filed by the respondent under Section 24 of theHindu Marriage Act, 1955 (for short, `the Act'), whereby a sum of Rs. 15,000/- permonth as maintenance pendente lite has been awarded to the respondent-wife. Thepetitioner-husband is aggrieved of the order fixing the maintenance.

Briefly, the facts are that the marriage between the parties wassolemnised on 10.12.1999. A son was born out of the wedlock on 1.11.2000.Earlier a divorce petition was filed by the petitioner on 26.3.2004. However, in theproceedings arising therefrom, on intervention of this court, the parties startedliving together on 15.12.2004. However, still they could not pull on and separatedon 26.11.2005. Fresh divorce petition was filed on 20.12.2005 by the petitioner inwhich the application for interim maintenance was filed by the respondent underSection 24 of the Act, which has been determined by the court below at Rs.15,000/- per month.

Learned counsel for the petitioner submitted that the maintenance, asfixed by the learned court below, is quite on the higher side. While fixing themaintenance, the learned court below considered the fact that the petitioner is wellqualified as M.S. (Computers) from United States of America and was earlierdrawing handsome salary of Rs. 1,15,000/- per month and presently he wasearning substantial amount as income from the share business being carrying onby him now. The claim was made by the respondent-wife also on account of the

fact that she wanted to pursue her further studies of M.D. Course and for thepurpose, she required money to attend coaching classes.

The submission of learned counsel for the petitioner is thatpresently, the petitioner is not keeping good health and his monthly income ismerely Rs. 35,000/- per month in which he has to maintain himself and also his oldparents. Besides this, the child who was born out of the wedlock is also livingwith the petitioner. He further submitted that in the petition filed by the respondentunder Section 24 of the Act, the respondent admitted that earlier she was workingas Medical Officer at monthly salary of Rs. 13,000/-. However, the job was leftjust to harass the petitioner so that she could claim more amount on account ofmaintenance. When she was well qualified and capable of working, she cannot bepermitted to sit idle to be a burden on the petitioner. As far as income is concerned,it was denied that the petitioner was earning lacs of rupees from share business,rather, it was pleaded that the income was only to the tune of Rs. 25,000/- permonth. As far as claim of the respondent regarding amount for pursuing her higherstudies is concerned, the submission is that the petitioner is not liable to reimbursethe same, as all what can be claimed in a petition under Section 24 of the Act ismaintenance for comfortable living in terms of the income of other spouse andnothing more than that. He further submitted that after the filing of the divorcepetition by the petitioner, FIR was registered against the petitioner and inanticipatory bail filed by the petitioner before this Court, in terms of the directionsissued by this Court as a condition precedent in Crl. Misc. No. 28327-M of 2006,on 13.7.2006, a sum of Rs. 10,000/- was being paid by the petitioner to therespondent as maintenance. It was the amount which was agreed to by both theparties.

It was further submitted that when the relations between the partiesare strained, there was no question of petitioner's funding higher studies of therespondent, in case she cannot afford that of her own. Even otherwise, such aclaim cannot be made in a petition under Section 24 of the Act, rather, the properremedy for that can possibly by a petition under Hindu Adoption and MaintenanceAct, 1956. The provisions of Section 24 of the Act are primarily meant to providemonetary assistance to such spouse who is incapable of supporting herself in spiteof sincere efforts made. A spouse who is well qualified is not expected to remainidle to squeeze out the resources of other spouse. Reliance was placed uponMamta Jaiswal (Smt.)v. Rajesh Jaiswal, 2001(2) HLR 228 and Lt. Col. RayeeSaharawatv. Ujjwal Saharawat, 2002(1) HLR 336.

On the other hand, learned counsel for the respondent submitted thatthough the respondent is Medical Graduate as she had passed her MBBSexamination, but in the present time this is no qualification as it is the era of superspecialization, where even MD/MS is also a kind of basic qualification wherefurther expertise is made by the degree of Doctor of Medicine (DM). Therespondent is entitled for a comfortable living in consonance with the status of thepetitioner, who is a well qualified person and is well placed in life. Presently, justwith a view to harass the respondent, he has left his lucrative job and he is living ina palatial bungalow. The stand that he has to support his old parents is totallymisconceived as father of the petitioner is a pensioner having retired from a goodemployment. The respondent does not have any residence to live. However, shesubmitted that keeping in view the present scenario, she is not claiming anyamount on account of pursuing her higher education as it is very difficult to makeher both hands meet. Though she is MBBS qualified, but is not earning enough asshe, after being out of the job, had opened a clinic from where she is barely able toearn the amount which is enough to cover up the establishment cost. She has tocommute in a bus to the clinic which is in a rented accommodation. As far as thecontention of the petitioner regarding respondent's being capable of earning atleast Rs. 13,000/- per month is concerned, it was submitted even the petitioner isalso capable of earning Rs. 1,50,000/- per month, as he was earning earlier.

Heard learned counsel for the parties and perused the record.

The fact that the petitioner is a qualified Engineer and was earlierworking in USA at a good salary and also the fact that the respondent is a qualifiedMBBS doctor is not denied. Another fact, which has come on record, is that in theincome tax returns filed for the years 2005-06, the petitioner had shown his totalincome at Rs. 4,18,660/-, which is about Rs. 35,000/- per month. Though therespondent claimed that the petitioner is having about Rs. 27,00,000/- in cash andon that interest is being earned, but the petitioner admitted that the amount ismerely Rs. 7,00,000/- to Rs. 8,00,000/- on which interest is earned. However, thesame has been declared in the income tax returns filed. As far as claim of thepetitioner that he is not liable to pay any amount to the respondent to enable her topursue her higher studies is concerned, I do not consider it necessary to deal withthe same for the reason the stand taken by the respondent at the time of argumentswas that she was no more pursuing the higher studies and she required the moneyonly for her maintenance. The fact that the petitioner is living in the house whichis admittedly owned by his mother and also that the petitioner is the only son is notin dispute. It also remained undisputed in the pleadings before the learned court

Conclusion

below that father of the petitioner is highly educated person who retired as Head ofBiology Department, Sainik School, Kapurthala.

Though the respondent was having a job earlier but presently she wasno more in any service. The contention that the respondent is trying to take outmoney from the petitioner by sitting idle is also misconceived for the reason that itwas admitted by the respondent, who was present in person in Court, that she isrunning a private clinic at present from a rented accommodation and out of theincome generated therefrom, she is hardly able to meet the establishment expensesfor the clinic such as rent and salary of attendants etc. She is living at Delhi wheresubstantial amount is needed for mere survival. It is also an admitted fact on recordthat at the time of consideration of the anticipatory bail filed by the petition, thisCourt, vide order dated 13.7.2006, had fixed an interim maintenance of Rs.10,000/- per month, as conceded by the parties at that time. However, it wasclarified therein that the same shall be adjustable in the amount fixed by the courtlater on. That amount cannot be said to be final, as is sought to be pleaded by thepetitioner, for the reason that in the present proceedings, the amount has beendetermined by the court considering the material on record. The maintenance ispayable to the spouse claiming it considering the income of the other spouse, asshe is also entitled to live in the same comfort till such time the parties part ways.

For the reasons mentioned above, I do not find any reason tointerfere in the impugned order.

Accordingly, the revision petition is dismissed.

January 13,2008mk

(Rajesh Bindal) Judge