Research › Search › Judgment

Himachal Pradesh High Court · body

2004 DIGILAW 341 (HP)

Vandana Chauhan v. Neeraj Kumar

2004-12-20

V.K.GUPTA

body2004
JUDGMENT : V.K. Gupta, J. This is a petition filed under Article 227 of the Constitution of India by the wife-petitioner who is a respondent in a petition filed under Section 13 of the Hindu Marriage Act, 1955 pending in the Court of learned District Judge, Shimla. It appears that uptill now the wife-petitioner has not filed the written statement in answer to the aforesaid petition filed by husband-respondent under Section 13 of the Hindu Marriage Act, 1955. It also appears that the wife-petitioner filed an application under Section 24 of the Act for maintenance pendente lite and expenses. The learned District Judge, as far as the main petition under Section 13 of the Act is concerned passed an order on 11th November, 2004 granting last opportunity to the petitioner-wife to file the written statement on 19th November, 2004. For ready reference, this order is reproduced hereunder which reads thus : "The respondent has not filed reply despite availing many opportunities. Hence last opportunity is granted to the respondent for filing reply on 19.11.2004." 2. On the application filed by the wife-petitioner under Section 24 of the Act, on the same date i.e. 11th November, 2004 the learned court below has passed the following order : "The applicant has filed rejoinder to the application and time is prayed for consideration. The application cannot be considered at this stage as the applicant (respondent wife in the main petition) has failed to file reply in the main petition despite seeking many opportunities. Hence the matter be listed for consideration on 19.11.2004, for which date the main petition has been listed." 3. Mr. R.K. Bawa, learned senior Counsel for the petitioner submits that under the Scheme of the Hindu Marriage Act, 1955 it is obligatory upon the learned trial Court to first decide the application filed by the petitioner-wife under Section 24 of the Act before insisting upon the petitioner to file written statement in answer to the main petition filed under Section 13 of the Act. In support of this contention, Mr. In support of this contention, Mr. Bawa has relied upon a Single Bench judgment of Allahabad High Court in the case of Narain Singh Parihar v. State of U.P., reported in AIR 1981 Allahabad 246, and two judgments of Bombay High Court in the case of Meena Deshpande v. Prakash Shriniwas, reported in AIR 1983 Bombay 409 and Smt. Sushila Viresh Chhatva v. Viresh Nagshi Chhatva, reported in AIR 1996 Bombay 94. 4. In so far as the reliance placed by Mr. Bawa on the Allahabad High Court judgment in Narain Singh Parihar (supra) is concerned' I find that even though the learned Single Judge of the Allahabad High Court has made a passing reference about the need to first dispose of Section 24 application, on a careful perusal of this judgment, I find that with reference to the scheme of the Act the learned Single Judge of Allahabad High Court has not indicated as to wherefrom does it transpire that there is a legal requirement of first deciding and disposing of Section 24 application and only thereafter to proceed to try the main petition filed under Section 13 of the Act. In so far as the two judgments relied upon by Mr. Bawa of Bombay High Court are concerned, in the case of Meena Deshpande (supra), the learned Single Judge of Bombay High Court was merely making observation with respect to the desirability of the learned, trial Court deciding and disposing of Section 24 application before the final judgment was passed in the main petition filed under Section 13 of the Act. In this case, as is clearly evident from a bare reading of the judgment, the learned trial Court had passed final judgment under Section 13 of the Act (may be judgment in the nature of ex parte decree) and the learned First Appeal Court had also confirmed the final judgment, but despite the final judgment having been passed, application under Section 24 of the Act had not been decided or disposed of by the learned trial Court. 5. The case of Smt. Sushila Viresh Chhatva (supra) arose out of an order passed by the Family Court rejecting the application of the wife filed for interim alimony and it was against the rejection order of said application that a writ petition was filed in Bombay High Court in which the aforesaid judgment was pronounced. 6. 5. The case of Smt. Sushila Viresh Chhatva (supra) arose out of an order passed by the Family Court rejecting the application of the wife filed for interim alimony and it was against the rejection order of said application that a writ petition was filed in Bombay High Court in which the aforesaid judgment was pronounced. 6. I have very carefully gone through the various provisions of the Hindu Marriage Act, 1955 and cannot subscribe to the view that it is incumbent upon the trial Court in every situation to first decide and dispose of an application under Section 24 of the Act and only thereafter to proceed in the main petition filed for dissolution of the marriage under Section 13 of the Act. The scheme of the Act and the plain wording of Section 24 clearly suggests to met that the trial Court should in normal course proceed both to dispose of Section 24 application as well as take steps in the main petition by insisting upon the respondent in the main petition to file written statement. The scheme of the Act does not permit the respondent in the main petition to insist that she would not file written statement unless the application filed by her under Section 24 of the Act is first decided and disposed of. 7. Based on the aforesaid reasoning I am convinced that there is no merit in the present petition filed by the petitioner-wife and I accordingly dismiss the same but in the peculiar circumstances of the case without any order as to costs. 8. Vide the impugned order dated 11th November, 2004 passed in the main petition, the learned trial Judge had given last opportunity to the petitioner-wife to file written statement on 19th November, 2004. 9. Admittedly written statement has not been filed by her so far and undoubtedly the aforesaid period is over. Since the proceedings had been pending in this Court, I extend the time for filing of the written statement by the petitioner-wife in the Court below in answer to Section 13 of the Act before the next date which is fixed in the trial Court and I am told that 29th December, 2004 is the date fixed in the trial Court. If the written statement is not filed on the next date, no further opportunity for this purpose shall be granted under any circumstance and the right to file the written statement shall stand closed without any further reference and defence of the petitioner-wife shall be struck off. Undoubtedly, the learned trial Court shall also make sincere efforts to expeditiously dispose of Section 24 application as well. CMP No. 605 of 2004 10. In view of the dismissal of the main petition, this application shall stand disposed of and interim order dated 18th November, 2004 shall stand vacated.