- (1.) HEARD learned counsel for the parties.
(2.) THIS civil miscellaneous appeal has been filed under Section 28 of the Hindu Marriage Act, 1955 (hereinafter referred to as "Act of 1955") against the order dated 19.07.2011 passed by the learned District and Sessions Judge, Bharatpur dismissing the application filed by the applicant -appellant under Section 24 of the Act of 1955. The appellant -applicant and respondent non -applicant (hereinafter referred to as "non -applicant") are an estranged couple. The non -applicant has taken proceeding under Section 13 of the Hindu Marriage Act for dissolution of the marriage with the applicant. The couple have two minor children who are presently residing with the non -applicant. The applicant however is residing with her parents in Agra. In the obtaining circumstances, the applicant moved the jurisdiction District and Sessions Judge for interim maintenance under Section 24 of the Hindu Marriage Act, 1955. Her case was that she was unemployed and has no source of income while the applicant was employed as an L.D.C. in the Education Department with the State of Rajasthan earning about Rs.20,000/ - per month. The applicant, therefore, claimed Rs.10,000/ - towards cost of litigation to contest the divorce petition filed by the non -applicant as also Rs.5,000/ - towards pendente lite maintenance while she was staying with her parents against her will and was not being sustained by the non -applicant.
(3.) THE non -applicant in reply to the application stated that his two children were reading in class VIth and IInd respectively. It was stated that the applicant was MA NTT duly qualified and apparently working as a teacher in Agra while she was staying with her parents was therefore equipped to maintain herself. And in the event, the non -applicant was required to pay any maintenance, it would be beyond his financial capacity. It was pointed out that the non -applicant was also required to maintain his old parents both staying with him. It was prayed that in the circumstances, the condition precedent for grant of any pendente lite maintenance and cost towards litigation to the applicant did not arise and that the application under Section 24 of the Act of 1955 be dismissed. The learned court below considered the matter and found that the applicant had taken proceedings under the Protection of Women from Domestic Viloance Act, 2005 (hereinafter referred to as "Act of 2005) against the non -applicant and the competent court at Agra where the applicant was residing since her estrangement with her husband had directed payment of Rs.1,000/ - per month as interim maintenance, aside of Rs.200/ - per month be paid for the applicant for her medical expenses. The 3. court thus taking into consideraton the financial condition of the non -applicant owing to his obligation towards educating and maintaining his two minor children and old parents found no justification to grant any further maintenance as sought under Section 24 of the Act of 1955. It was however directed that the applicant would be entitled to cost of Rs.250/ - for each visit to the court to defend the application filed by the non -applicant for dissolution of marriage under Section 13 of the Act of 1955. ;