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2017 DIGILAW 1224 (RAJ)

JAGDEEP SINGH v. MANPRIT KAUR

2017-05-12

M.N.BHANDARI

body2017
JUDGMENT : M.N. Bhandari, J. By this writ petition, a challenge is made to the order dated 17th February, 2010 passed by the Family Court, No.2, Jaipur. The order aforesaid was passed on the application under Section 151 CPC to seek recall of the order for payment of due amount of maintenance under Section 24 of the Hindu Marriage Act, 1955 (for short "the Act of 1955"). 2. Learned counsel submits that petitioner preferred a divorce petition under Section 13 of the Act of 1955. During pendency of the aforesaid petition, an order on the application under Section 24 of the Act of 1955 was passed. The amount of maintenance was not paid thus non-petitioner filed an application to dismiss the divorce petition. The Family Court allowed the application vide order dated 7th March, 2005. The divorce petition under Section 13 of the Act of 1955 was dismissed, however, it was with the liberty to seek revival of the petition if interim maintenance under Section 24 of the Act of 1955 is paid. It is submitted that after dismissal of the divorce petition under Section 13 of the Act of 1955, order under Section 24 of the Act of 1955 no more remains enforceable. The application under Section 24 remains alive during currency of the divorce petition under Section 13 of the Act of 1955. In view of above, impugned order dated 17th February, 2010 deserves to be set aside. 3. It is also stated that an order under Section 24 of the Act of 1955 is not a decree so as to be enforced but ignoring the aforesaid also, direction for enforce maintenance under Section 24 of the Act of 1955 has been given. 4. I have considered the submissions made by learned counsel for petitioner and perused the record. 5. It is a case where the petitioner maintained a divorce petition under Section 13 of the Act of 1955. During pendency of the said petition, an application under Section 24 of the Act of 1955 was filed by the non-petitioner-wife. It was allowed by the Family Court vide order dated 20th February, 2004. As per order aforesaid, interim maintenance of Rs.6,000/- per month was allowed from 9th July, 2003 till 7th March, 2005. It is apart from the cost of litigation and expenses to attend the court. The amount aforesaid was not paid. It was allowed by the Family Court vide order dated 20th February, 2004. As per order aforesaid, interim maintenance of Rs.6,000/- per month was allowed from 9th July, 2003 till 7th March, 2005. It is apart from the cost of litigation and expenses to attend the court. The amount aforesaid was not paid. The non-petitioner made an application to dismiss the divorce petition in view of default in making payment of interim maintenance. The court below dismissed the divorce petition for want of compliance of the order passed under Section 24 of the Act of 1955. It was, however, with liberty to seek revival of the petition, if application for interim maintenance is made. 6. The first argument of the learned counsel for petitioner is that when divorce petition under Section 13 of the Act of 1955 was dismissed, the order under Section 24 of the Act of 1955 cannot survive because interim order goes with the main petition itself. 7. I have considered the aforesaid argument and find that maintenance under Section 24 remains payable till the petition is disposed of. The benefit of interim maintenance cannot be given for a period subsequent to the disposal of the petition. It does not mean that one would not be entitled to get the benefit for the earlier period when divorce petition was alive. The dismissal of the main petition resulted in denial of benefit under Section 24 of the Act of 1955 for the subsequent period. It is not that if a party failed to comply the order passed under Section 24 and subsequently divorce petition is allowed or dismissed, he is absolved from the liability. The order pertaining to the period earlier to the dismissal of main petition remain alive and can be enforced thus first argument raised by learned counsel for petitioner cannot be accepted. 8. The other issue is about nature of the order under Section 24 of the Act of 1955. It is said to be not a decree thus cannot be enforced. If the argument aforesaid is accepted then any order passed under Section 24 of the Act of 1955 would remain unenforceable. The very purpose of Section 24 of the Act of 1955 would frustrate. Accordingly, second argument raised by learned counsel for petitioner cannot be accepted. 9. It is said to be not a decree thus cannot be enforced. If the argument aforesaid is accepted then any order passed under Section 24 of the Act of 1955 would remain unenforceable. The very purpose of Section 24 of the Act of 1955 would frustrate. Accordingly, second argument raised by learned counsel for petitioner cannot be accepted. 9. It is true that an application moved by the non-petitioner to dismiss the divorce petition under Section 13 of the Act of 1955 was allowed but perusal of order dated 7th March, 2005 reveals that if payment is made, the petitioner would be at liberty to seek revival of the petition. In any case, dismissal of the main petition under Section 13 of the Act of 1955 does not absolve petitioner from the liability under Section 24 i.e. for the period till application under Section 13 of the Act of 1955 was pending. The only benefit to the petitioner is that after dismissal of the petition on 7th March, 2005, the non-petitioner cannot seek benefit of interfere maintenance for subsequent period. 10. It is otherwise a fact that order for execution was passed on 5th November, 2008 and said order has not been challenged by the petitioner. What has been challenged is an order of application to question the execution order. The main order for execution has not been challenged herein. 11. In view of discussion made above, I do not find any merit in the writ petition. It is accordingly dismissed.