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1996 DIGILAW 485 (ALL)

Virendra Kumar Gupta v. Meena

1996-04-19

R.B.MEHROTRA

body1996
Judgment : R.B. Mehrotra 1. HEARD Sri A. N. Tripathi and Sri S. C. Srivastava, learned counsel for the applicant. 2. THE present civil revision has been filed against the order of the Family Court, Jhansi dated 5.4.1996 under Section 115, C.P.C. By the impugned order, the Family Court has awarded a sum of Rs. 300 for maintenance from the date of the application and Rs. 1,500 towards litigation expenses under Section 24 of the Hindu Marriage Act to the wife. This revision has been moved by the husband. The impugned order states that present application has been filed by the applicant, Meena who was married to Shri Virendra Kumar Gupta, the present applicant in accordance with Hindu rites on 11.10.1989. The present applicant filed a suit for declaring the marriage to be void and on 26.9.1991 obtained an ex parte decree. Smt. Meena filed an application that she has no knowledge of the ex parte decree and she came to know of the ex parte decree only on 13.12.1994 and as such, she has moved an application on 15.12.1994 for setting aside the ex parte decree. During the pendency of the aforesaid restoration application, application under Section 24 of the Hindu Marriage Act has been filed. The said application has been decided by the impugned order. Learned counsel for the applicant has made following submissions in support of this revision : (1) On the date the application for restoration has been filed, no relationship of husband and wife existed between the applicant and the opposite party, as such, under Section 24 of the Hindu Marriage Act, no maintenance can be granted. It has been stressed by the learned counsel that unless the ex parte decree is set aside, the court has no jurisdiction to grant the maintenance, as the section requires, that the maintenance can be granted either to the husband or to the wife. The decree for divorce having not yet been set aside, no such relationship exists. On this ground, it has been submitted that the order is completely without jurisdiction and is liable to be interfered with under Section 115,C.P.C. (2) By the impugned order, the statement of the applicant's wife that she is not having any income has been accepted without any evidence. Mere bald statement made by the wife could not have been accepted unless there was material evidence to support the said statement. Mere bald statement made by the wife could not have been accepted unless there was material evidence to support the said statement. (3) There is no consideration regarding applicant's income, as such, without determining the applicant's income on some basis, awarding maintenance during the pendency of the litigation was without any authority of law and as such, is liable-to be interfered with. 3. LEARNED counsel has also submitted that there was no basis for determining the litigation expenses to Rs. 1,500, neither any basis as such has been disclosed. In the same connection, it has also been argued that the maintenance could not have been granted from the date of the application unless there was a further finding that the applicant was not having any income from the date of the application. 4. THE present revision has been filed under Section 115, C.P.C. proviso added by Act of 1976 to C.P.C. under Section 115 mandates that the High Court shall not interfere in any order passed during the pendency of the suit or proceedings unless the order finally disposes of the suit or other proceedings, or the order, if allowed to stand, would occasion a failure of justice or cause irreparable injury to the party against whom it was made. Section 19 of the Family Court Act has taken care that no appeal is to be preferred against interlocutary order passed by the Family Court, as such, the present order is not appealable. 5. THE only issue which is to be decided in the present revision is as to whether the order suffers from error of jurisdiction. Section 24 of Hindu Marriage Act is to be interpreted in a pragmatic manner and not in a literal sense in which the language of the section has been used. 6. SECTION 24 of the Hindu Marriage Act is reproduced for convenience : "24. Section 24 of Hindu Marriage Act is to be interpreted in a pragmatic manner and not in a literal sense in which the language of the section has been used. 6. SECTION 24 of the Hindu Marriage Act is reproduced for convenience : "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." An order can be passed 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 him to meet the necessary expenses of the proceeding. The words 'any proceeding' used in the aforesaid section should include a proceeding filed in a case where ex parte decree has been obtained and the other party has applied for setting aside the ex parte decree. In such a situation, the wide scope of Section 24 will cover it under the words 'any proceeding' under the Act. 7. THE issue whether the applicant and the opposite party are wife and husband is under debate. In view of the ex parte decree having been obtained by the opposite party, necessarily it cannot be concluded that the relationship between the husband and wife ceased to exist, as the ex parte decree is under jeopardy. Technically, the operation of the ex parte decree has not been put to stay by a court's order but the mere fact that the applicant continues to claim her as wife, and has challenged the ex parte decree, it cannot be said that the relationship between the applicant and the opposite party as husband and wife has ceased to exist. Technically, the operation of the ex parte decree has not been put to stay by a court's order but the mere fact that the applicant continues to claim her as wife, and has challenged the ex parte decree, it cannot be said that the relationship between the applicant and the opposite party as husband and wife has ceased to exist. THE matter is yet to be examined and in such a situation, I am clearly of the view that even in a proceeding where ex parte decree obtained by one party is under challenge, Section 24 of the Hindu Marriage Act will be attracted and even in such proceedings, the court is competent to pass orders of maintenance in favour of affected party. 8. SO far as the other points have been raised, the order itself speaks that the applicant has made statement and on the basis of the parties' evidence, a finding has been recorded, such a finding does not suffer from any jurisdictional error. However, some circumstances of the case as borne out from the impugned order need be mentioned that ex parte decree was obtained by the applicant on 26.9.91 of which the opposite party Meena had no information. Applicant remarried on 12.12.94, then opposite party Meena filed an application on 15.12.94 for setting aside the decree. The said application is pending for last one year and four months. In the meantime Smt. Meena's father died, then on 1.9.1995 she filed an application under Section 24 of Hindu Marriage Act for maintenance. A finding has been recorded in the impugned order that it is proved on the basis of evidence on record that she has no source of income. So far as income of the applicant is concerned, the impugned order states that there is no documentary evidence to prove that applicant is running hotel or cloth shop but the court held that the applicant is a healthy person and has an obligation to maintain his wife. On this basis it determined paltry sum of Rs. 300 per month. So far as income of the applicant is concerned, the impugned order states that there is no documentary evidence to prove that applicant is running hotel or cloth shop but the court held that the applicant is a healthy person and has an obligation to maintain his wife. On this basis it determined paltry sum of Rs. 300 per month. These findings are in the field of appreciation of evidence and cannot be interfered with in exercise of revisional jurisdictional under Section 115, C.P.C. Even otherwise, the pleadings of the parties, the evidence led by the parties, including the affidavits exchanged between parties have not been placed, before me for want of such material, the applicant's submissions cannot be examined on merits. Even otherwise, it is difficult to believe a person capable of marrying second time to have no source of livelihood. It is settled proposition of law that revisional jurisdiction is a discretionary jurisdiction and I am of the view in the facts of the case, the impugned order should not be interfered with, accordingly, the revision is dismissed. 9. HOWEVER, taking over all circumstances into consideration, that application for setting aside the decree moved by the opposite party be decided at an early date, there is no justification for keeping the restoration application, pending for more than one year, accordingly I direct that the application for restoration moved by opposite party be decided within a month from the date of receipt of certified copy of this order after hearing the parties. A certified copy of this order be remitted to the District Judge, Jhansi forthwith who will bring it immediately to the notice of Family Court, Jhansi, where the litigation between the parties is pending. This order will be brought to the notice of the Registerar of the Court forthwith for ensuring that the copy of the order reaches District Judge, Jhansi within 10 days from today.