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2010 DIGILAW 335 (GAU)

Saraswati Sarkar v. Lalit Chandra Sarkar

2010-05-12

BROJENDRA PRASAD KATAKEY, HRISHIKESH ROY

body2010
JUDGMENT B.P. Katakey, J. 1. This appeal, under Section 19 of the Family Courts Act, 1984 (in short the 1984 Act), by the wife, is against the judgment and decree dated 25-6-2008 passed by the learned Judge, Family Court, West Tripura, Agartala, in Title Suit (Divorce) No. 185/2007 filed by the Respondent husband, dissolving the marriage between the parties by a decree of divorce, on the basis of the application filed under Section 13(1A) of the Hindu Marriage Act, 1955, on the ground of non-resumption of cohabitation for a period of more than 1 (one) year, after passing of a decree for judicial separation between the parties. 2. The Respondent husband instituted a proceeding seeking dissolution of marriage between the parties, under Section 13 of the Hindu Marriage Act, 1955 (in short the 1955 Act), which was registered and numbered as Title Suit (Divorce) No. 59/1999, wherein a decree for judicial separation was passed on 18-4-2002. The Respondent husband being not satisfied with the decree for judicial separation passed by the learned Addl. District Judge, West Tripura, Agartala, preferred Matrimonial Appeal No. 5/2002 before the High Court, which was dismissed vide judgment and order dated 8-8-2007. A petition under Section 13(1A)(i) of the 1955 Act has, thereafter, been filed by the Respondent husband in the Family Court, West Tripura, Agartala on 14-11-2007, registered and numbered as Title Suit (Divorce) No. 185/2007, praying for dissolution of the marriage solemnized on 12-7-1986, by passing a decree, on the ground that there has been no resumption of cohabitation between the parties after the decree for judicial separation was passed on 18-4-2002 i.e. for more than 1 (one) year. The said proceeding is contested by Appellant wife by filing written statement, while denying the allegation of adultery and cruelty levelled against her by the Respondent husband in the application, stating inter alia that since she was/is willing to live with the Respondent as husband and wife and it is because of the Respondent husband that there has been no resumption of cohabitation between the parties after passing of the decree for judicial separation, the marriage solemnized between the parties cannot be dissolved by passing a decree at the instance of the Respondent husband, on the said ground. It has further been contended that since the decree for judicial separation passed by the learned Trial Court was challenged by the Respondent husband in appeal before the High Court, the period of 1 (one) year for the purpose of Section 13(1A)(i) of the 1955 Act shall commence with effect from the date of disposal of the appeal by the Appellate Court, as the decree passed by the learned Trial Court merges with the decree passed by the Appellate Court and the petition under Section 13(1A)(i) of the 1955 Act having been filed within 1 (one) year of the passing of the decree by the High Court in the appeal preferred by the Respondent husband, no decree for dissolution of the marriage can be passed. 3. In the said proceeding the Appellant wife also filed an application, under Section 24 of the 1955 Act, for grant of pendente lite maintenance, at the rate of Rs. 2,000/- per month, together with the litigation expenses of Rs. 10,000/-, contending that though vide order dated 11-7-2003 passed by the learned Addl. District Judge, West Tripura, Agartala in Misc. Case No. 157/2002, arising out of Title Suit (Divorce) No. 59/1999, registered and numbered on the basis of the application filed by her under Section 25 of the 1955 Act, the Respondent husband was directed to pay a sum of Rs. 2,000/- per month w.e.f. 2003, the said amount has not been paid regularly and the Appellant having no source of income is unable to maintain herself and to bear the litigation expenses. The said application has also been contested by the Respondent husband by filing written objection, contending, inter alia, that since the Appellant wife is leading an adulterous life, she is not entitled to maintenance in view of Section 23A of the 1955 Act and that apart she is earning Rs. 3,000/- per month working in "Sishu Griha". 4. The learned Judge, Family Court, on the basis of the pleadings of the parties framed the following issues for consideration and decision : 1. Whether the petition is maintainable in its present form and nature ? 2. Whether the Petitioner is entitled to a decree as prayed for ? 3. Any other relief/reliefs the parties are entitled thereto ? 5. Both the Respondent husband and the Appellant wife examined themselves before the Family Court at Agartala. Whether the petition is maintainable in its present form and nature ? 2. Whether the Petitioner is entitled to a decree as prayed for ? 3. Any other relief/reliefs the parties are entitled thereto ? 5. Both the Respondent husband and the Appellant wife examined themselves before the Family Court at Agartala. The Respondent husband apart from examining himself also filed the evidence on affidavit of two other witnesses, namely, Sri Subhas Sarkar and Sri Lalit Chandra Sarkar, in support of his contention in the petition filed seeking a decree for dissolution of marriage. 6. The learned Judge, Family Court, vide judgment and decree dated 25-6-2008 answered all the issues in favour of the Respondent husband and dissolved the marriage by a decree by holding that there is no resumption of cohabitation for a period of more than 1 (one) year from the date of passing of the decree for judicial separation. In the said judgment it has also been held that the period of 1 (one) year stipulated in Section 13(1A)(1) of the 1955 Act commences from the date of passing of the decree by the Court of the first instance and not from the date of passing of the decree by the Appellate Court and the petition for dissolution of marriage having been filed beyond the period of 1 (one) year, the same is maintainable. Relying on the judgment of the Apex Court in Dharmendra Kumar v. Usha Kumar reported in AIR 1977 SC 2218 , it is further held that the provisions of Section 23(1) of the 1955 Act has no application in a proceeding under Section 13(1A) of the 1955 Act, as by the said provision a statutory right has been conferred on the Respondent husband to obtain the dissolution of marriage, if there is no resumption of cohabitation for a period of 1 (one) year or upwards from the date of passing of the decree for judicial separation, even if, there was any offer by the wife and non-acceptance of such offer by the husband for resumption of cohabitation. Hence the present appeal. 7. We have heard Mr. B. Banerjee, the learned Counsel for the Appellant wife and Mr. A. C. Bhowmik, the learned Counsel for the Respondent husband. 8. It is submitted by Mr. Hence the present appeal. 7. We have heard Mr. B. Banerjee, the learned Counsel for the Appellant wife and Mr. A. C. Bhowmik, the learned Counsel for the Respondent husband. 8. It is submitted by Mr. Banerjee, the learned Counsel for the Appellant wife that the date of reckoning the period of 1 (one) year, as stipulated in Section 13(1A)(i) of the 1955 Act, is the date when the Appellate Court disposed of the appeal, i.e. 8-8-2007, preferred by the Respondent husband, against the decree for judicial separation passed by the Court of first instance on 18-4-2002, the decree passed by the Trial Court having merged with the decree passed by the Appellate Court, and hence, no decree for divorce can be passed at the instance of the Respondent husband, the application under Section 13(1A)(1) of the 1955 Act has been filed within 1 (one) year of passing the decree by the Appellate Court. It is further submitted by the learned Counsel that it is apparent from the pleadings in the written statement filed by the Appellant wife opposing the prayer for granting the decree dissolving the marriage as well as her deposition that the Appellant wife was all along willing to resume the cohabitation, but it was due to the reluctance of the Respondent husband that such cohabitation did not resume and hence the Respondent husband cannot take advantage of his own wrong and get a decree for dissolution of marriage, in view of the provisions contained in Section 23(1) of the 1955 Act. Mr. Banerjee further submits that the learned trial Court while passing the decree did not discuss the evidences adduced by the parties, by holding that even if there was some wrong on the part of the Respondent husband, his statutory right to get a decree for dissolving the marriage under Section 13(1A)(i) of the 1955 Act cannot be defeated by such wrong, which according to Mr. Banerjee is not the correct proposition of law, in view of the judgment of the Apex Court in Hirachand Srinivas Managaonkar v. Sunanda reported in (2001) 4 SCC 125 : AIR 2001 SC 1285 . 9. Mr. Banerjee, referring to the deposition of the witnesses further submits that the learned Judge, Family Court, did not allow the witnesses to be cross-examined by the other party, though she has a right to cross-examine such witnesses. 9. Mr. Banerjee, referring to the deposition of the witnesses further submits that the learned Judge, Family Court, did not allow the witnesses to be cross-examined by the other party, though she has a right to cross-examine such witnesses. It is further submitted that the evidence on affidavits of two witnesses filed by the Respondent husband cannot also be accepted, the same being not relating to a matter of formal character, in view of the provision contained in Section 16 of the 1984 of the Act. 10. Relating to the application filed under Section 24 of the 1955 Act, Mr. Banerjee, the learned Counsel for the Appellant wife submits that though the learned Addl. District Judge vide order dated 11-7-2003 passed in Misc. Case No. 157/2002 directed payment of the permanent alimony of Rs. 2,000/- per month, the Respondent husband stopped the payment of such permanent alimony, after institution of the proceeding for divorce, being Title Suit (Divorce) No. 185/2007. According to the learned Counsel since the Appellant wife does not have any source of income and the Respondent husband is a teacher in the Government school drawing more than Rs. 10,000/- per month, necessary direction may be issued to pay pendente lite maintenance as well as the litigation expenses. 11. Mr. Bhowmik, the learned Counsel for the Respondent husband, per contra, supporting the decree passed by the learned Trial Court, dissolving the marriage between the parties, has contended that it is evident from the provisions of Section 13(1A)(i) of the 1955 Act that the starting point of the period of 1 (one) year is the date of passing of the decree by the Court of first instance and not the date when the Appellate Court passes a decree while dismissing the appeal challenging the decree passed by the Trial Court for judicial separation, as held by the Calcutta High Court in Smt. Smriti Banerjee v. Tapan Kumar Banerjee reported in AIR 1986 Cal 284 as well as by the Madras High Court in Gomathi v. Kumaraguruparan reported in AIR 1987 Mad 259 . Placing reliance on the decision of the Apex Court in Dharmendra Kumar (supra) it has been submitted by Mr. Placing reliance on the decision of the Apex Court in Dharmendra Kumar (supra) it has been submitted by Mr. Bhowmik that the statutory right created on the Respondent husband by virtue of Section 13(1A)(i) of the 1955 Act cannot be taken away by Section 23(1) of the said Act and once it is proved that there is no resumption of cohabitation for 1 (one) year or upwards after passing of a decree for judicial separation, and hence the Respondent husband is entitled to a decree dissolving the marriage between the parties. In any case according to the learned Counsel, to constitute the "wrong" within the meaning of Section23(1)(a) of the 1955 Act, the conduct alleged must be something more than mere disinclination to agree to an offer or reunion and must be misconduct serious enough to justify denial of the relief to which the Respondent husband is otherwise entitled to. In the instant case according to Mr. Bhowmik, even if, the version of the Appellant wife that she was ready and willing for reunion, is accepted, that would not constitute "wrong" within the meaning of Section 23(1)(a) of the 1955 Act. 12. Mr. Bhowmik, referring to the provision contained in Section 15 of the 1984 Act, submits that since the Family Court is required to record the summary of the evidence of the witnesses examined, it is not required that the witnesses are to be offered for cross-examination by the other party. Relating to the acceptability of the evidence on affidavit filed by two witnesses, it is submitted that such affidavit can be accepted by the Family Court, in view of Section 16 of the said Act. 13. Relating to the prayer of the Appellant wife for pendente lite maintenance and litigation expenses, it has been submitted by Mr. Bhowmik that since the Appellant wife is leading an adulterous life, she is not entitled to any maintenance in view of Section 23A of the 1955 Act and in any case she having independent source of income to the tune of Rs. 3,000/- per month, she is not entitled to any maintenance as well as the litigation expenses, although the Respondent husband for sometime has paid the maintenance of Rs. 2,000/- per month pursuant to the order dated 11-7-2003 passed by the learned Addl. District Judge in Misc. Case No. 157/2002. 14. 3,000/- per month, she is not entitled to any maintenance as well as the litigation expenses, although the Respondent husband for sometime has paid the maintenance of Rs. 2,000/- per month pursuant to the order dated 11-7-2003 passed by the learned Addl. District Judge in Misc. Case No. 157/2002. 14. From the facts as narrated above as well as the submissions of the learned Counsel for the parties, the following points arise for determination in the present appeal : (i) Whether the date of passing of the decree for judicial separation by the Court of first instance or the date of passing the decree by the Appellate Court is the relevant date for the purpose of calculating the period of 1 (one) year for the purpose of Section 13(1A)(i) of the 1955 Act ? (ii) Whether the provisions in Section 23(1)(a) of the 1955 Act is applicable in a proceeding initiated under Section 13(1A) of the said Act ? (iii) Whether the witnesses examined by the respective parties in a proceeding before the Family Court are allowed to be cross-examined by the other party and whether evidence on affidavit of a witness, though not of a formal character, can be accepted ? (iv) Whether the Appellant wife is entitled to the pendente lite maintenance and litigation expenses ? Point No. - (i) : 15. Section 13(1A)(i) of the 1955 Act provides a ground for dissolution of the marriage between the parties, if there is no resumption of cohabitation as between the parties to the marriage for a period of 1 (one) year or upwards, after passing of the decree for judicial separation in a proceeding to which they were parties. Section 13(1A)(i) of the 1955 Act provides a ground for dissolution of the marriage between the parties, if there is no resumption of cohabitation as between the parties to the marriage for a period of 1 (one) year or upwards, after passing of the decree for judicial separation in a proceeding to which they were parties. For better appreciation Section 13(1A) in its entirety is reproduced below : 13(1A) Either party to a marriage, whether solemnized before or after the commencement of this Act, may also present a petition for the dissolution of the marriage by a decree of divorce on the ground : (i) that there has been no resumption of cohabitation as between the parties to the marriage for a period of one year or upwards after the passing of a decree for judicial separation in a proceeding to which they were parties; or (ii) that there has been no restitution of conjugal rights as between the parties to the marriage for a period of one year or upwards after the passing of a decree for restitution of conjugal rights in a proceeding to which they were parties. 16. The legislature, in Section 13(1A) of the 1955 Act, has fixed the minimum period of 1 (one) year, to seek a decree dissolving the marriage solemnized between the parties, when there is no resumption of cohabitation between the parties to the marriage, after passing of the decree for judicial separation, or there has been no restitution of conjugal rights as between the parties to the marriage, after passing of a decree for restitution of conjugal rights, in a proceeding to which they were parties. Such decree for judicial separation or restitution of conjugal rights, as the case may be, can be passed by the Court of first instance or by the Appellate Court, when no such decree has been passed by the Court of first instance. Such decree for judicial separation or restitution of conjugal rights, as the case may be, can be passed by the Court of first instance or by the Appellate Court, when no such decree has been passed by the Court of first instance. Since Section 13(1A) of the 1955 Act specifically provides the time from which the period of 1 (one) year is to be reckoned, i.e. the date of passing of a decree for judicial separation or for restitution of conjugal rights, as the case may be, there is no scope for holding that when such a decree passed by the Court of first instance is affirmed by the Appellate Court, the period of 1 (one) year as stipulated in Section 13(1A) of the 1955 Act is to be reckoned from the date of passing of the decree by the Appellate Court, on the ground that the decree passed by the Court of first instance merges with the decree passed by the Appellate Court. An appeal preferred against the decree passed by the Court of first instance does not automatically operate as stay of execution or operation of the decree appealed against unless of course the Appellate Court passes an order for stay execution or operation of such decree, which principle is embodied in Sub-rule (1) of Rule 5 of the Order XLI of the Code of Civil Procedure. Hence even if an appeal is preferred by an aggrieved party challenging the decree passed by the Court of first instance, it would not create a bar for filing an application under Section 13(1A) by either of the parties to such decree, for dissolution of marriage, subject to fulfilment of the conditions stipulated therein, otherwise it would negate the provisions of the Section 13(1A), which confers a ground on the parties to such decree to file the petition for dissolution of marriage, where there is no resumption of cohabitation or restitution of conjugal rights, as the case may be. 17. 17. The situation, however, would be different if an order of stay execution/operation of the decree for judicial separation or restitution of conjugal rights, is passed by the Appellate Court, when such decree is put to challenge, as during the period of continuance of such stay, the parties to the proceeding cannot take advantage of the decree passed by the Court of first instance and the period of 1 (one) year for the purpose of Section 13(1A) of the 1955 Act then has to be counted from the date of vacation of such stay order or from the date of dismissal of the appeal, whichever is earlier. In a case where the decree for judicial separation or restitution of conjugal rights has not been passed by the Court of first instance, but such decree has been passed by the Appellate Court in an appeal filed by the aggrieved party, the period of 1 (one) year for the purpose of Section13(1A) of the 1955 Act has to be reckoned from the date of passing of the decree by the Appellate Court, as that would be the first decree passed by a competent Court for judicial separation or for restitution of conjugal rights, as the case may be. The principle of law that a decree passed by the Trial Court merges with the decree passed by the Appellate Court, for the purpose of Section13(1A) of the 1955 Act, cannot be applied when the decree for judicial separation or restitution of conjugal rights, as the case may be, is affirmed by the Appellate Court, as Section 13(1A) of the 1955 Act specifically provides that the period of 1 (one) year shall start to run on passing of the decree by the Court of first instance, provided, however, as noticed above, the operation or execution of such decree is not stayed by the Appellate Court. 18. We, therefore, agree with the view expressed by Calcutta High Court in Smt. Smriti Banerjee (supra) as well as by the Madras High Court in Gomathi (supra) by following the decision of Bombay High Court in Shirin Vishnu Kirpalani v. Vishnu Hirananda Kirpalani reported in AIR 1960 Bom 447 and of Delhi High Court in Chander Prakash Sachdeva v. Smt. Sudesh Kumari Sharma reported in AIR 1971 Delhi 208. 19. 19. In the case in hand, though the Respondent husband preferred an appeal before the High Court, challenging the decree dated 18-4-2002 passed by the learned Addl. District Judge, in Title Suit (Divorce) No. 59/ 1999 granting the decree for judicial separation, such appeal having been dismissed, the relevant date to be reckoned for the purpose of the period of 1 (one) year, stipulated in Section 13(1A) of the 1955 Act, would be the date of passing of the decree by the Court of first instance i.e. on 18-4-2002. The Respondent husband has admittedly filed the petition under Section 13(1A)(i) of the 1955 Act beyond the period of 1 (one) year of passing of the decree for judicial separation and hence the learned trial Court has rightly decided the said issue in favour of the Respondent husband. Point No. (ii) : 20. As noticed above, the learned Trial Court has held that the provisions of Section 23(1) of the 1955 Act cannot come in the way of exercising the statutory right by the Respondent husband under Section 13(1A)(i) for getting a decree for dissolution of the marriage by divorce, by placing reliance on the Apex Court judgment in Dharmendra Kumar (supra). 21. Section 23(1)(a) of the 1955 Act provides that in any proceeding under the said Act, whether defended or not, if the Court is satisfied that any of the grounds for granting relief exists and the Petitioner, except in cases where the relief is sought by him on the ground specified in Sub-clause (a), Sub-clause (b) or Sub-clause (c) of Clause (ii) of Section 5, is not in anyway taking advantage of his or her own wrong or disability for the purpose of such relief, the Court shall decree such relief accordingly. Section 13(1A) of the 1955 Act has been inserted by Act 44 of 1964 as grounds for dissolution of a marriage by a decree of divorce, subject to fulfillment of the conditions stipulated therein. Section 13(1A) of the 1955 Act has been inserted by Act 44 of 1964 as grounds for dissolution of a marriage by a decree of divorce, subject to fulfillment of the conditions stipulated therein. Though the said provision has been inserted afterwards, that would not make the provisions, of Section 23 of the said Act inapplicable in respect of a petition filed under Section13(1A) of the said Act, as Section 23 specifically provides that the Court shall pass a decree on any of the grounds available to the parties seeking such decree only if such party is not in any way taking advantage of his or her own wrong or disability for the purpose of such relief. Since non-resumption of cohabitation for a period of 1 (one) year or upwards after passing a decree for judicial separation is a ground under Section 13(1A)(1) of the 1955 Act, on which the relief for passing a decree dissolving a marriage can be claimed, the provisions of Section 23(1) of the said Act shall naturally apply, more so when Section 23(1) does not provide that the said provision shall have no application to a petition filed on the ground available under Section 23(1A) of the 1955 Act. 22. The Apex Court in Hirachand Srinivas Managaonkar (supra) has held that the provisions of Section 23(1) of the 1955 Act shall apply in a proceeding under Section 13(1A) of the said Act. The Apex Court in the said judgment has also observed that the decision in Dharmendra Kumar (supra) cannot be read to be laying down a general principle that the Petitioner in an application for divorce is entitled to the relief merely on establishing the existence of the ground pleaded by him or her in support of the relief or that the Court has no discretion to decline the reliefs to the Petitioner in a case where the fulfilment of the ground pleaded by him or her is established. The Apex Court further observed that the decision in Dharmendra Kumar's case is limited to the facts of that case only. 23. The Apex Court further observed that the decision in Dharmendra Kumar's case is limited to the facts of that case only. 23. In the instant case, it is evident from the judgment and decree under challenge that the learned trial Court has refused to go into the facts of the case and did not marshal the evidences adduced by the parties at all, on the ground that the provisions of Section 23(1) of the 1955 Act cannot come in the way of the statutory right of the Respondent husband in claiming a decree for dissolution of the marriage once it is proved that there is no resumption of cohabitation between the parties even after expiry of 1 (one) year from the date of passing the decree for judicial separation, without however going into the aspect as to whether the Respondent husband, who claims such decree was at fault and whether in view of such wrong on the part of the Respondent husband, the Court would refuse to pass a decree, in view of Section 23(1A) of the 1955 Act. Point No. (iii) : 24. On perusal of the record of the suit, it has also come to our notice that though both the Respondent husband and the Appellant wife examined themselves as witnesses in support of their respective contentions and summary of their depositions were recorded, no opportunity of cross-examination of the respective witnesses was given to the other party by the learned Judge, Family Court. The record further reveals filing of evidences on affidavit of two witnesses by the Respondent husband in support of his contentions. 25. Section 14 of the 1984 Act empowers the Family Court to receive as evidence any report, statement, documents, information or matter that may, in its opinion, assist it to deal effectually with a dispute, whether or not the same would be otherwise relevant or admissible under the Indian Evidence Act, 1872. Section 15 of the said Act further provides that in suits or proceedings before a Family Court, it shall not be necessary to record the evidence of witnesses at length, but the Judge, as the examination of each witness proceeds, shall, record or cause to be recorded, a memorandum of the substance of what the witness disposes, and such memorandum shall be signed by the witness and the Judge and shall form part of the record. Section 16 of the said Act empowers the Family Court to receive evidence by way of affidavit of any person, where such evidence is of a formal character. Such person, however, on the application of any parties to the suit or proceeding can be summoned and examined by the Family Court, as to the facts contained in his affidavit. 26. Examination of a witness includes the examination-in-chief, cross-examination and re-examination, wherever necessary. A witness produced by a party is to be first examined-in-chief, then if the adverse party so desires, re-examined. The learned Judge, Family Court, in view of the provisions contained in Section 15 of the 1984 Act, may record the substance of what the witness deposes, without recording the evidence at length, but that does not mean that the witness is not to be made available for cross-examination by the other party, who may, however, decline to cross-examine such witness. If a witness is not made available for cross-examination, the other party would lose the chance to challenge the version of such witness. It would, in that case, also be difficult for the Court to test the veracity of the deposition of such witness. The manner of recording of the evidence adduced by a witness, as stipulated in Section 15 of the 1984 Act, cannot in any way take away the right of the other party to cross-examine such witness. In the Family Court, where the parties are normally not allowed to be represented by legally trained persons, the responsibility of the Judge of such Court is more, who has to inform the parties to the proceeding about their right to put questions to the witness examined by the other party, by way of cross-examination. Examination of a witness cannot be complete unless that witness is made available for cross-examination by the other party. The learned Judge of the Family Court, in view of the provisions contained in Section 15 of the 1984 Act, no doubt is not required to record the examination-in-chief and the cross-examination of a witness in detail and is to record a memorandum of substance of what the witness deposes, but does not mean that the learned Judge, would record the substance of examination-in-chief of a witness only, without making such witness available for cross-examination. 27. 27. In the instant case, it appears from the records that the memorandum of substance of the examination-in-chief of the Respondent husband and the Appellant wife were recorded without, however, making those witnesses available for cross-examination by the other party. The said course of action adopted by the learned Judge, Family Court, is not recognized in law. The learned Judge has to make such witnesses available for cross-examination by the other party and thereafter shall record the memorandum of substance of what the witnesses depose, which has not been done in the instant case. 28. It also appears that the evidence on affidavit of two other witnesses, namely, the P.Ws. 2 and 3, were filed on behalf of the Respondent husband. Section 16 of the 1984 Act empowers the Family Court to receive the evidence on affidavit of any person where such evidence is of a 'formal character' only and not otherwise. The evidence on affidavit filed by those witnesses reveal that there are certain allegations made against the Appellant wife and those witnesses were not made available for cross-examination by her. In any case, the evidences by way of affidavit of those witnesses cannot be termed as evidence of a 'formal character' within the meaning of Section 16of the 1984 Act, as the allegation of adultery and cruelty have been made by those witnesses in such affidavits, which are not of 'formal character' but are matters of serious consequence and significance. Those evidences on affidavit of those witnesses, therefore, in any case cannot be accepted in view of the provisions contained in Section 16 of the 1984 Act. Point No. (iv) : 29. This leads to the question, as to whether the Appellant wife is entitled to pendente lite maintenance as well as the litigation expenses. As noticed above, an order under Section 25 of the 1955 Act was earlier passed by the learned Addl. District Judge, in Misc. Case No. 157/2002, on 11-7-2003, granting maintenance at the rate of Rs. 2,000/ - per month to the Appellant wife, after passing of the decree for judicial separation in favour of the Respondent husband. The said order passed by the learned Addl. District Judge, has not been interfered with by any Court and hence still subsists. District Judge, in Misc. Case No. 157/2002, on 11-7-2003, granting maintenance at the rate of Rs. 2,000/ - per month to the Appellant wife, after passing of the decree for judicial separation in favour of the Respondent husband. The said order passed by the learned Addl. District Judge, has not been interfered with by any Court and hence still subsists. The Respondent husband, however, discontinued the payment of such amount on the ground that the Appellant wife leads an adulterous life and hence she is not entitled to maintenance in view of Section 23A of the 1955 Act. It is also the contention of the Respondent husband that the Appellant wife has income of Rs. 3,000/- per month, as she is working in "Sishu Griha". The Respondent husband, however, has not denied the assertion of the Appellant wife that he is employed as Teacher in a Government school and earning more than Rs. 10,000/- per month. Since the order of permanent alimony in the form of monthly maintenance of Rs. 2,000/- has been granted by the learned Addl. District Judge vide order dated 11-7-2003, the Respondent husband is bound to pay such monthly maintenance, the said order having not been challenged in the high forum, even if, the contention of the Respondent husband that the Appellant wife has the earning of Rs. 3,000/- per month, is accepted. 30. Since it is not clear as to the date from which the Respondent husband discontinued the payment of the maintenance allowance, as awarded by the learned Addl. District Judge, vide order dated 11-7-2003, the learned Judge, Family Court, is directed to make an enquiry in that regard to find out the date from which the maintenance allowance has not been paid and to pass necessary order for payment of such maintenance including arrear within the time to be fixed by the learned Judge, Family Court. The Respondent husband shall also, in view of his monthly income, pay the litigation expenses of Rs. 5,000/- to the Appellant wife which shall be deposited before the learned Judge, Family Court, within 1 (one) month from today. 31. In view of the aforesaid discussion, the judgment and decree dated 25-6-2008 passed by the learned Judge, Family Court, is set aside. The matter is remitted to the learned Court below for fresh disposal, after giving opportunity to both the parties to cross-examine their Respondent witnesses. 31. In view of the aforesaid discussion, the judgment and decree dated 25-6-2008 passed by the learned Judge, Family Court, is set aside. The matter is remitted to the learned Court below for fresh disposal, after giving opportunity to both the parties to cross-examine their Respondent witnesses. The parties are directed to appear before the learned Judge, Family Court on 14-6-2010, who shall within a period of 2 (two) months thereafter decide the said proceeding in accordance with law. 32. The appeal is accordingly allowed to the extent indicated above. Appeal allowed.