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2014 DIGILAW 954 (KAR)

Vinay Patil v. VS D. V. Vijetha

2014-10-31

A.N.VENUGOPALA GOWDA

body2014
Judgment These petitions are filed under Articles 226 & 227 of the Constitution of India, praying to set aside the order dated 21.06.2014 passed by the Family Court, Shimoga in M.C. No. 130/2012 with respect to the direction to the petitioner to pay temporary alimony of Rs. 10,000/- per month, passed in the order sheet vide Annexure-A. These petitions coming on for preliminary hearing in ‘B’ group this day, the Court made the following: ORDER These writ petitions were filed to quash the direction issued in the order dated 21.06.2014 in M.C. No.130/2012, while allowing I.As.1 and 2 of 2014, by the Judge of Family Court, Shivamogga, to pay Rs. 10,000/- p.m. as temporary alimony, from 01.06.2014, till disposal of them a in petition. 2. The brief facts necessary to decide these writ petitions are as under: The petitioner – husband, married the respondent – wife, on 27.04.2011. On account of estrangement, petitioner filed under S.9 of the Hindu Marriage Act (for short, ‘the Act’), M.C.No.1374/2014 in the Family Court, Bengaluru, for restitution of conjugal rights. The respondent filed in the Family Court, Shivamogga M.C.No.130/2012, under S.13(i) (ia) of the Act, to pass decree of divorce and dissolution of the marriage. C.P. No.122/2012 filed in this Court, by the respondent, to withdraw and transfer M.C.No.1374/2014 from the Family Court, Bengaluru was allowed on 12.08.2014. As a result, M.C.No.1374/2014 was withdrawn and transferred to the Family Court, Shivamogga. 3. I.A. Nos.1 and 2 of 2014 were filed in M.C.No.130/2012 to reopen the case, recall PW1 for cross-examination and lead his evidence. On behalf of the respondent, her advocate stated ‘no objection’ to allow the said applications, subject to ordering payment of interim maintenance. Finding that PW1 was not cross-examined despite the case having been adjourned more than once by imposing cost and that even the evidence of the respondent in the petition having been taken as nil and the case having been posted for hearing of arguments, the Court below being of the view that “it is just and equitable to direct the husband to pay temporary alimony to the wife” passed an order dated 21.06.2014. In view of the admission of the petitioner that he has monthly income of Rs. 37,000/, I.As.1 and 2 were allowed, subject to the husband paying temporary maintenance of Rs. 10,000/to the wife, with effect from 01.06.2014, till the disposal of the petition. In view of the admission of the petitioner that he has monthly income of Rs. 37,000/, I.As.1 and 2 were allowed, subject to the husband paying temporary maintenance of Rs. 10,000/to the wife, with effect from 01.06.2014, till the disposal of the petition. PW1 was recalled by reopening the case, subject to compliance of the said condition. Feeling aggrieved by the aforesaid condition, the husband filed these writ petitions. 4. Sri V.B. Siddaramaiah, learned advocate, contended that the conduct of a party in the matter of alleged delay to decide the main case has no relevance at the stage of granting pendente lite maintenance. He submitted that the imposition of the impugned condition, would operate harshly against the petitioner, apart from the fact, that the respondent is gainfully employed and is not in need of maintenance and has not even filed an application under S.24 of the Act. He further contended that C.P.No.122/2014 having been allowed on 12.08.2014 and M.C. No. 1374/2014 having been withdrawn from the Family Court, Bengaluru and transferred to the Family Court, Shivamogga, the cases filed by both parties are required to be decided together and that the petitioner was not the cause for delay in deciding of the cases. He submitted that an order of the above nature could not and ought not have been passed by the Court below, on its own, i.e., imposing the condition while granting the relief prayed in I.As.1 and 2 and mandating the fulfillment of the imposed condition. He submitted that there being an altogether perverse approach to the matter and the impugned condition being arbitrary and illegal, interference is called for. 5. Sri Sateesh Chandra K.V., learned advocate for the respondent, on the other hand contended that the discretion exercised by the Judge of the Family Court, on the peculiar facts and circumstances of the case is not a matter which needs or calls for any interference in these petitions filed under Article 227 of the Constitution of India. 5. Sri Sateesh Chandra K.V., learned advocate for the respondent, on the other hand contended that the discretion exercised by the Judge of the Family Court, on the peculiar facts and circumstances of the case is not a matter which needs or calls for any interference in these petitions filed under Article 227 of the Constitution of India. He submitted that the petitioner having not cross-examined PW1 and also not led his evidence and when the case was at the stage of arguments, relief having been sought by filing I.As.1 and 2, the Court below is justified in taking note of the conduct of the petitioner and allowing I.As.1 and 2, subject to fulfilment of the condition of payment of temporary alimony, on the basis of the admission with regard to his income at Rs. 37,000/p.m. Learned counsel supported the impugned order and sought dismissal of these petitions. 6. Perused the writ record and considered the rival contentions. Point for consideration is, whether the Court can order for payment of pendente lite alimony to a spouse without an application being filed? 7. S.24 of the Act empowers the Court in any proceedings 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 his support and the necessary expenses of the proceeding, it may, on the application of any one of them, order the other party, to pay to the applicant, the expenses of the proceeding and the monthly maintenance as may seem to be reasonable during the pendency of the case, having regard to the income of both the parties. The applicant, if has no independent income sufficient for her/his support, can invoke S.24 of the Act, for grant of interim maintenance, which can be granted taking into consideration the income of both parties. 8. In NEETA RAKESH JAIN Vs. RAKESH JEETMAL JAIN, (2010)12 SCC 242 , while interpreting the scope of S.24 of the Act, Apex Court has held as follows: “9. Section 24 thus provides that in any proceeding under the Act, the spouse who has no independent income sufficient for her or his support may apply to the court to direct the respondent to pay the monthly maintenance as the court may think reasonable, regard being had to the petitioner's own income and the income of the respondent. Section 24 thus provides that in any proceeding under the Act, the spouse who has no independent income sufficient for her or his support may apply to the court to direct the respondent to pay the monthly maintenance as the court may think reasonable, regard being had to the petitioner's own income and the income of the respondent. The very language in which Section is couched indicates that wide discretion has been conferred on the court in the matter of an order for interim maintenance. Although the discretion conferred on the court is wide, the Section provides guideline inasmuch as while fixing the interim maintenance the court has to give due regard to the income of the respondent and the petitioner's own income. 10. In other words, in the matter of making an order for interim maintenance, the discretion of the court must be guided by the criterion provided in the section, namely, the means of the parties and also after taking into account incidental and other relevant factors like social status; the background from which both the parties come from and the economical dependence of the petitioner. Since an order for interim maintenance by its very nature is temporary, a detailed and elaborate exercise by the court may not be necessary, but, at the same time, the court has got to take all the relevant factors into account and arrive at a proper amount having regard to the factors which are mentioned in the statute.” (emphasis supplied) 9. In the instant case, the respondent did not file any application under S.24 of the Act. The husband contends that the wife is gainfully employed and she is not in need of any maintenance being provided by him. According to the husband, in view of the gainful employment and having independent income sufficient for her support, the wife did not file an application either for pendente lite alimony or towards expenses of the proceeding. 10. S.24 of the Act, requires for its operation, an application from the spouse concerned, which is not the case with S.26, which invests the Court with full jurisdiction to pass, from time to time, such interim orders for maintenance of minor children, as the Court may deem just and proper. S.24 to operate, there is a need for filing an application, detailing therein, the legal obligation and the paying capacity etc. S.24 to operate, there is a need for filing an application, detailing therein, the legal obligation and the paying capacity etc. of the opposite party and also the dependency etc. of the applicant. Hence, pendente lite alimony cannot be ordered without such an application being on record. 11. In V. NANDAKUMAR Vs. SMT. INDUMATHI, 2011(4) Kar.L.J. 584 , both the spouses had approached the Court, filing separate petitions, to pass decree of divorce. An application was filed by the wife, under S.25 of the Act, to pay alimony and litigation expenses. Considering the objections filed to the I.A. and the material on record, interim maintenance of Rs. 5,500/per month was ordered to be paid. The order was questioned in writ petition on the ground that an application praying for interim maintenance having not been filed, the Court below is not justified in granting the maintenance. While holding that plain reading of S.24 of the Act prima facie supports the contention of the writ petitioner husband that the maintenance pendente lite may be granted on the application by wife and not otherwise and while reiterating that though the application praying for maintenance may be proper, but in the facts and circumstances of the case, the impugned order was upheld. It is clear from the facts of the case, that an application under S.25 having been filed, was construed as one filed under S.24 of the Act and since, both the parties had filed separate petitions and also finding that the husband was earning Rs. 17,000/- per month and the spouses are having a daughter, who is living with wife, pendente lite alimony granted and questioned in the writ petition, was not interfered with. There being no dispute that the parties had a daughter, who was living with the wife and she having made an application, invoking a wrong provision i.e., S.25, instead of S.24, the order assailed in the writ petition was not interfered with. 12. The said decision has been rendered in the peculiar facts and circumstances of the case, as has also been specifically observed therein. 12. The said decision has been rendered in the peculiar facts and circumstances of the case, as has also been specifically observed therein. Even otherwise, in view of the decision of the Apex Court, in the case of NEETA RAKESH JAIN, noticed in para 8 supra, the spouse, who has no independent income sufficient for her or his support, should apply to the Court to direct the respondent to pay monthly maintenance and the Court has got to take all relevant factors into account and arrive at a proper conclusion, having regard to the factors, mentioned in the statute. Therefore, the decision in the case of V. NANDAKUMAR, noticed in para 11 supra, is clearly distinguishable and is in applicable to the facts of this case. 13. The impugned direction, when examined with reference to the provision in S.24 of the Act and the ratio of the decision in the case of NEETARAKESHJAIN, is certainly arbitrary and is unsustainable. The Court below has acted in excess of jurisdiction and in a manner not permitted by law and in total disregard of the provision under S.24 of the Act. Hence, there is a need to quash the same. 14. However, I.As.1 and 2 of 2014 having been filed belatedly, the petitioner shall have to pay the cost to the respondent i.e., in the matter of granting the relief prayed therein and also the litigation cost of the proceedings pending in the Family Court. In the result, the writ petitions are allowed and the impugned direction is quashed. However, it is made clear that this order would not come in the way of the respondent wife making an application under S.24 of the Act, to award pendente lite alimony. It is made clear that, if, such an application is filed, the Court below shall consider the same with expedition and pass order. The petitioner shall pay to the respondent, the cost of Rs. 15,000/, towards allowing I.A.Nos.1 and 2 by the Family Court and also the litigation expenses of the proceedings pending in the Family Court. Both cases pending in the Family Court shall be decided with expedition, by refusing unnecessary adjournment(s), if any, sought by either of the parties.