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2015 DIGILAW 44 (RAJ)

Manju v. Ashok Kumar

2015-01-06

JAISHREE THAKUR, SUNIL AMBWANI

body2015
JUDGMENT : Hon'ble AMBWANI, ACTG. CJ.—In the proceedings for divorce under Sec.13(1)(ia)(ib) of the Hindu Marriage Act, 1955 (‘the Act’), the appellant Smt. Manju moved an application for interim maintenance under Section 24 of the Act. The application was allowed by the Judge, Family Court, Sriganganagar after contest on merits, and considering the fact that the appellant wife was justified in living separately from her husband and that she and her son require maintenance from the husband who is a practicing advocate, the Family Court fixed an amount of Rs.5,000/- per month for the wife and Rs.5,000/- per month for her son and Rs.500/- as costs of the proceedings on each date attended by her. Both the husband and wife filed writ petitions against the order of the Family Court, Sriganganagar dated 1.10.2013. 2. Learned Single Judge heard both the matters together and dismissed both the writ petitions with the findings that admittedly the non-applicant husband is an advocate by profession. It was specifically stated by the applicant wife that he is earning Rs.25,000/- per month as professional income. The averment was denied by the non-applicant husband in the counter filed but he did not disclose his actual monthly income. The existence of the irrigated agriculture land and the house at Purani Abadi, Sriganganagar was not disputed, however, the stand taken was that the same are ancestral properties. Learned Single Judge confirmed the findings recorded by the Family Court that on overall consideration of the matter, the interim maintenance of Rs.5,000/- each for applicant wife and her child as determined by the Family Court is just and adequate and by no stretch of imagination, it can be said to be excessive in these days of high inflation. 3. Learned Single Judge did not agree with the contention of learned counsel appearing for the husband that amount of maintenance could have been awarded from the date of the order and not from the date of filing of the application. Learned Judge held that the purpose behind Section 24 of the Act is to provide necessary financial assistance during the proceedings to the party to the matrimonial dispute who has no sufficient means to maintain himself/herself or to bear the expenses of the proceedings. The expression “during the proceedings” in Section 24 cannot be given a narrow and restrictive meaning. Learned Judge held that the purpose behind Section 24 of the Act is to provide necessary financial assistance during the proceedings to the party to the matrimonial dispute who has no sufficient means to maintain himself/herself or to bear the expenses of the proceedings. The expression “during the proceedings” in Section 24 cannot be given a narrow and restrictive meaning. Even as per provisions of Section 24 of the Act, the application preferred for payment of expenses of the proceedings and such monthly sum during the proceedings, as far as possible shall be disposed of by the Court within 60 days from the date of service of notice on the wife or the husband, as the case may be. Thus, the harmonious construction of the provisions contained in Section 24 of the Act makes it abundantly clear that ordinarily the maintenance has to be allowed from the date of the application and not from the date of the order. 4. In the special appeal filed by appellant – wife, notices were issued on 21.08.2014. On 15.09.2014 Shri Ashok Kumar – husband desired to pay a sum of Rs.2,50,000/- against the due maintenance to Smt.Manju – wife. The amount was brought by him in cash. The amount was directed to be deposited with the Accounts Section of this Court, which will pay through a negotiable instrument, by a banker’s cheque or demand draft to Smt.Manju – wife. It is admitted that the amount of Rs.2,50,000/- has been paid to Smt. Manju – wife. 5. On 26.11.2014 Shri Ashok Kumar – husband was directed to pay a sum of Rs.1,00,000/- on or before 08.12.2014 and to make payment of maintenance pendente lite month by month. 6. It is stated by learned counsel appearing for the appellant – wife that as of now according to the calculation of the amount as awarded by the Family Court, a sum of Rs.5,78,000/- is due towards maintenance for her and her son who has passed 12th standard and has to undertake higher studies. 7. Learned counsel appearing for the appellant – husband has submitted that his client is willing to settle the matter with his wife. It is stated that he has always been willing to keep her as legally wedded wife and to take care of her. 8. 7. Learned counsel appearing for the appellant – husband has submitted that his client is willing to settle the matter with his wife. It is stated that he has always been willing to keep her as legally wedded wife and to take care of her. 8. After going through the record, we find that it was Shri Ashok Kumar – husband in connected special appeal who had filed the divorce petition under Section 13(1) (ia) (ib) of the Act on the ground of cruelty. His conduct during the proceedings of the petition does not entitle him to take a plea that he is willing to settle the matter inasmuch as he did not pay the interim maintenance until directions were sought to be issued by this Court. In the appeal filed by wife – Smt.Manju, the amount of Rs.2,50,000/- was paid for the first time on 15.09.2014. We are informed by learned counsel appearing for the husband that amount of Rs.1,00,000/- has been paid to the respondent – wife. He, however, is not in a position to inform as to in what manner and on what date the amount was actually paid to her. 9. During the pendency of these special appeals, the husband sought to nullify the orders of interim maintenance by withdrawing the divorce petition by way of application which was moved by him on 28.11.2014. Subsequently, having become wiser, he filed an application on 02.12.2014 to withdraw the application for withdrawing the divorce petition. In these circumstances, we do not find that Shri Ashok Kumar – husband is entitled to any relief from this Court. 10. We also do not find any error in the assessment of the evidence of the Family Court or in the findings of learned Single Judge upholding and restricting the maintenance of Rs.5,000/-to wife and further Rs.5,000/- to son. 11. On the aforesaid discussions, both the special appeals are dismissed with the observation that the Family Court, on an application filed by Smt.Manju – wife, will initiate the process for recovery of remaining amount of Rs.5,78,000/- without any delay and for that purpose since parties are served, coercive process may be considered to be issued. 11. On the aforesaid discussions, both the special appeals are dismissed with the observation that the Family Court, on an application filed by Smt.Manju – wife, will initiate the process for recovery of remaining amount of Rs.5,78,000/- without any delay and for that purpose since parties are served, coercive process may be considered to be issued. In case, the husband does not pay remaining amount within a period of 45 days from today, the Family Court will issue process of warrant for arrest and detention of the husband until entire amount is paid by him. A copy of this order be placed in SAW No.236/2014.