#absentingparty

ABC v. XYZ

Matrimonial Appeal (Family Court) 231/2023

Before Delhi High Court

Judgement was pronounced by the Division Bench of Hon’ble Mr. Justice Anoop Kumar Mendiratta J and Hon’ble Mr. Justice V Kameswar Rao J on 04.12.2023. It was observed that as there is no straightjacket formula therefore a balance has to be drawn between the status of the parties reasonable needs of the wife and dependent children, whether the applicant is educated and professionally qualified, whether the applicant has any independent source of income, whether the income is sufficient to enable her to maintain the same standard of living as she was accustomed to in her matrimonial home, whether the applicant was employed prior to her marriage, whether she was working during the subsistence of the marriage, whether the wife was required to sacrifice her employment opportunities for nurturing the family, child rearing and looking after adult members of the family.

Fact:

By means of this Matrimonial Appeal the order of the Family Court Judge passed on 06.04.2023 in Divorce Petition and Application for maintenance is challenged by the appellant wife before Delhi High Court.

Family Court judge ordered minor girl child to be paid Rs. 20K per month from the date of the filing of the application till the disposal of the case where as wife was declined maintenance pendent lite*(during pendency of divorce proceeding*). Whereas Appellant wife has made a claim of Rs.75,000/- PM for herself and her minor daughter and litigation expenses.

Marriage was solemnized in the year 2000 & a girl child was born in 2010. The appellant wife filed divorce petition as well as petition u/s 24 of the Hindu Marriage Act 1955* (HMA*) on the ground of cruelty and desertion by the Respondent husband constraining her to live separately since December 2013.

Pursuant to summons Respondent husband appeared before Family Court and submitted he is ready to give divorce on mutual consent and sought some time for giving his offer for divorce. The time was granted. But thereafter Respondent husband didn’t turned up before the Family Court.

The opportunity of filing written statement to the divorce petition & also for maintenance petition filed u/s section 24 of HMA by the husband was closed.

The Respondent was proceeded Exparte in Divorce Proceeding & the matter was listed for Exparte evidence of the petitioner/appellant.

Observation of Family Court Judge on Maintenance pendete lite

Appellant/Wife is capable of earning and maintaining herself & is earning and as such does not require any financial support.

Considering that an amount of Rs.36,066/- per month is being spent on education and other expenses of the minor daughter in custody of the appellant, who is a joint liability of both the parties, respondent was directed to pay Rs.20,000/- per month towards maintenance of the minor child from the date of filing of the application till decision of the case.

The appellant wife was also granted litigation expenses of Rs.11,000/-.

Since Respondent husband didn’t appeared before the Family Court Divorce was granted on 06.04.2023.

Submission in Appeal before Delhi High Court by Appellant (Wife)

Feeling aggrieved by denial of maintenance to the her during pendency of the Divorce proceeding, present appeal was filed submitting that maintenance was wrongly denied to her and maintenance to the child be enhanced.

Family Court erred by not taking into consideration the status of the parties after the marriage and the fact that the respondent had been maintaining three cars after marriage. respondent husband owned a three-bedroom duplex house with terrace rights in South Delhi. The parties (Appellant & Respondent) had visited Mumbai, Shirdi and Goa for a trip as well as to other places also by air along with stay at five-star hotels. Respondent is the practicing Advocate(20 years practice expeience), maintaining a double storey chamber in Tis Hazari Complex. The income of respondent, was claimed to be not less than Rs.2 lacs per month.

The appellant was constrained to live in a tenanted premises and had to spends a sum of Rs.16,500/- both for self and daughter. The expenses for maintenance of the child are much higher.

Prayer in Appeal

The maintenance be enhanced to Rs.75,000/- per month for the appellant along with minor child and litigation expenses of Rs.2 lacs be provided.

Observation of the High Court

In the present case notice on the Respondent Husband was served in December 19, 2019 & petition of divorce & maintenance were together decided in April 06, 2023.

Where the contesting party to the proceedings chooses not to contest, the decision on the application for interim maintenance should not be deferred to a later stage of conclusion of the proceedings.

The grievance of the appellant is that since she has disclosed her sources and amount of earning Family Court Judge denied maintenance to the appellant holding she is capable of earning & maintaining herself therefore she does not require any financial support from the Respondent Husband.

The maintenance sum to be accorded monthly during the proceedings has to be reasonable, having regard to the petitioner’s own income and the income of the respondent.

The maintenance has to be realistic, avoiding either of two extremes oppressive or extravagant, nor meagre to drive the applicant wife to penury or mere support. The duration of the marriage as well as the conduct of the parties, which is apparent on the face of record also needs to be kept in perspective.

We are of the considered opinion that merely because the wife is earning, it does not automatically operate as an absolute bar for awarding the maintenance. The parameter remains whether her source of income is sufficient to enable her to maintain herself along with minor child.

The obligation of husband to provide maintenance is on higher pedestal than wife since the provision for grant of maintenance/interim maintenance for women and children in the concerned statutes. The purpose remains to provide recourse to dependent wife and children by way of financial support to maintain herself along with the child.

On the face of record, considering the status of the parties along with the standard of living in the matrimonial home and the income of the respondent, the appellant wife is also entitled to maintenance apart from the minor child.

Since the respondent husband chose to remain absent during course of proceedings after initial appearance, the task of estimating the income becomes onerous for want of relevant details of the income and assets affidavit of the respondent. An adverse inference has to be drawn against the respondent in the facts and circumstances, since he deliberately chose not to contest the proceedings.

Order

We are of the opinion that the appellant wife is also entitled to maintenance @ Rs.15,000/- per month apart from the maintenance @ Rs.20,000/- for the minor child as awarded by the learned Trial Court from the date of filing of application till the disposal of the proceedings.

Maintenance pendente lite shall be set off/adjusted against any other amount of maintenance received by the appellant. The respondent shall also be liable to clear the arrears of maintenance within timeline as directed by the learned Judge, Family Court.

Seema Bhatnagar