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2010 DIGILAW 704 (AP)

B. MALATHI @ UMA v. B. INDU SHEKARA RAO

2010-08-03

B.N.RAO NALLA, D.S.R.VERMA

body2010
JUDGMENT : (per Hon’ble Sri Justice D.S.R.Varma) 1. Heard learned counsel appearing for the appellant-wife. Despite service of notice, none appears for the respondent-husband, nor there is any representation on his behalf. 2. This appeal is directed against the order, dated 31.08.2009, in I.A.No.1330 of 2008 in O.P.No.917 of 2008, passed by the Judge, Family Court, Ranga Reddy District, dismissing the application filed by the appellant-wife against the respondent-husband under Section 25 of the Hindu Marriage Act, 1955 (for brevity “the Act”) seeking to grant a sum of Rs.10,00,000/- towards permanent alimony and secure the same by a charge on the immovable property being Flat No.102, First Floor, N.B.R. Complex at Meerpet, Ranga Reddy District. 3. The appellant is wife and the respondent is husband. For the sake of convenience, in this judgment, the parties are referred to as ‘the wife’ and ‘the husband’. 4. The brief facts that led to filing of this appeal are that the wife filed suit O.S.No.336 of 2002 on the file of the Principal Junior Civil Judge, Hyderabad East and North, Ranga Reddy District, and the same was decreed on 20.1.2003 granting the monthly maintenance of Rs.2,000/-. Thereafter, the husband filed O.P.No.917 of 2008 on the file of the Judge, Family Court, Ranga Reddy District, against the wife seeking a decree of divorce. During the pendency of the said O.P., the wife has filed I.A.No.1330 of 2008 under Section 25 of the Act seeking to grant a sum of Rs.10,00,000/- towards permanent alimony and secure the same by a charge on the immovable property being Flat No.102, First Floor, N.B.R. Complex at Meerpet, Ranga Reddy District. The said application has been dismissed by the Court below on the ground that it is pre-mature, even though the wife is entitled for permanent alimony. The reason for dismissing the said application appears to be that when the husband failed to pay the monthly maintenance of Rs.2,000/- granted in the suit O.S.No.336 of 2002, the wife can realize the said amounts as arrears of interim maintenance by way of filing execution petition, and since such execution petition was not filed seeking realization of the amount granted towards monthly maintenance in O.S.No.336 of 2002, the Court below appears to have arrived at a conclusion that I.A.No.1330 of 2008 is pre-mature and accordingly dismissed the same. Hence, the present appeal by the wife. 5. Hence, the present appeal by the wife. 5. On perusing the impugned order passed by the Court below, we are of the view that the Court below was not correct in dismissing the application in I.A.No.1330 of 2008 on the ground that the same is pre-mature. Section 25 of the Act contemplates that on an application being made by either party, may be the wife or the husband, the Court has to consider the same and pass appropriate orders granting such gross sum, monthly or periodical sum, as deemed necessary in the circumstances of the case, if necessary by creating a charge on the immovable property of the respondent. 6. Obviously, the present interlocutory application has been filed by the wife as envisaged under sub-section (1) of Section 25 of the Act and, in such circumstances, particularly when all the ingredients of the said provision are satisfied, the Court below ought not to have arrived at the conclusion that filing of such application is pre-mature. In fact, we may have to assert that such an application is very much necessary to be filed by the party claiming gross sum towards maintenance during the pendency of the main proceedings. In that view of the matter, we are of the view that the impugned order passed by the Court below is erroneous and the same cannot be sustained. 7. In the result, the appeal is allowed, setting aside the impugned order, dated 31.8.2009, in I.A.No.1330 of 2008 in O.P.No.917 of 2008, passed by the Court below, and the matter is remanded to the Court below to consider I.A.No.1330 of 2008 along with O.P.No.917 of 2008, afresh, and pass appropriate orders, while disposing of the main petition, after putting the parties on notice. No order as to costs. 8. In view of the fact that has been brought to the notice of this Court that the respondent-husband is likely to retire from the service within a period of ten months, it is desirable to dispose of O.P.No.917 of 2008 with utmost expedition, if necessary, on priority basis.