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2019 DIGILAW 446 (ALL)

Priyanka Srivastava v. Vipin Bihari Lal

2019-02-20

PRADEEP KUMAR SRIVASTAVA, SHASHI KANT GUPTA

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JUDGMENT : Pradeep Kumar Srivastava, J. 1. This appeal has been preferred against the judgment and order dated 05.10.2018 passed by Additional Family Judge/F.T.C. Family Court, Ballia in Divorce Petition No. 55 of 2013 (Vipin Bihari Lal Vs. Priyanka Srivastava) whereby the application of the appellant under Section 24 of the Hindu Marriage Act was rejected. 2. The brief facts are that the appellant/opposite party filed application 66-C and 69-C for interim maintenance stating that she has no source of income and she has 12 year-old school going son. She has also stated that the respondent/applicant deserted her on account of non-fulfilment of dowry demand. She has also filed an application for maintenance under Section 125 Cr.P.C. In Misc. Case No. 25/1990 in which she was awarded interim maintenance of Rs. 3,000/- per month by order dated 05.12.2012 passed by Family Court, Sasaram, Bihar. The same is not being regularly paid by the respondent. The respondent is earning Rs. 81,056/- per month as per his pay slip filed by the appellant and she has demanded at least 1/3rd of the total salary by way of maintenance and she has also demanded enhancement of litigation expenses from Rs. 1000/- to Rs. 2000/-. By application 69-C filed on 07.12.2017 the appellant also pointed out before the learned Court below that Hon'ble High Court passed an order dated 10.08.2017 for recovery of maintenance pending the petition along with the litigation expenses. 3. Against the application the respondent/applicant filed objection stating that he has filed the divorce petition and the respondent want to anyhow delay the disposal. Appellant filed an application under Section 24 of Hindu Marriage Act which was disposed of on merit on 20.12.2014 and she was provided Rs. 1000/- litigation expense and against that order she did not file any appeal etc. That order became final and, therefore, second application is not maintainable. 4. After hearing both the parties and going through the record the learned Court below rejected both the applications by order dated 05.10.2018. Aggrieved by that order this appeal has been filed. 5. The appellant has challenged the impugned order on the ground that the appellant has no source of income to maintain herself and her child. The respondent has sufficient income. The appellant has pointed out approximately a sum of Rs. 7,500/- to Rs. 10,000/- per month towards education of the child and other activities. 5. The appellant has challenged the impugned order on the ground that the appellant has no source of income to maintain herself and her child. The respondent has sufficient income. The appellant has pointed out approximately a sum of Rs. 7,500/- to Rs. 10,000/- per month towards education of the child and other activities. By the order dated 20.12.2014, the Court had directed the respondent-husband to make payment of Rs. 1,000/- on each date to make the expenditure towards counsel fees and travelling expense and the same cannot be a ground for rejecting for the application under Section 24 of Hindu Marriage Act. In earlier application, the appellant only demanded the litigation expense and in that application there was no demand for interim maintenance. It was the duty of the Court below to see that her son is entitled to obtain proper education along with the routine comforts in life. The impugned judgment and order is against the pleading and material on record and the Court below failed to appreciate the facts and circumstances of the case. The learned Court below should have appreciated the matter on merits instead of rejecting the application on the basis of technicality. The impugned order, being arbitrary and illegal, is liable to be set aside. 6. Heard learned counsel for both the parties and perused the annexed copies of the relevant record and impugned order with this appeal. 7. The learned counsel of the respondent/applicant has argued that the earlier application of the appellant/opposite party was disposed of on merits on 20.12.2014 by the learned Court below awarding Rs. 1,000/- on every date fixed in the case against fees of the counsel and travel. In that application she did not demand interim maintenance. That order became final between the parties and the present application is barred by principles of constructive res-judicata. 8. On the contrary, the learned counsel for the appellant argued that in earlier application the appellant did not demand any interim maintenance and, therefore, the principles of res-judicata will not be applicable. 9. Before coming to the facts, it is pertinent to observe that res-judicata is a principle of judicial administration and is based on the common law maxim of public policy to achieve finality of litigation and preventing a litigation from being tried twice over on the same issue. 9. Before coming to the facts, it is pertinent to observe that res-judicata is a principle of judicial administration and is based on the common law maxim of public policy to achieve finality of litigation and preventing a litigation from being tried twice over on the same issue. Section 21 of the Hindu Marriage Act provides that all proceedings under this Act shall be regulated as far as may be by the Code of Civil Procedure, 1908. A similar provision has been made in Section 10 of the Family Court's Act, 1984. Section 11 of the Civil Procedure Code bars a Court from trying any suit in which the matter directly and substantially in issue in a suit between the same parties in a Court and has been heard and finally decided by such Court which is competent to try such subsequent suit or the suit in which such issue has been subsequently raised. The principles of constructive res-judicata incorporated in explanation IV of Section 11 of the Civil Procedure Code lays down that any matter which might and ought to have been made ground of defence or attack in such former suit shall be deemed to have been matter directly and substantially in issue in such suit. Meaning thereby, even if a particular ground of defence or attack was not actually taken in the earlier suit, if it was capable of being taken in the earlier suit, it became a bar in regard to the said issue being taken in the second suit in view of the principles of constructive res-judicata. It deals with ground of attack or defence which ought to have been raised but not raised. A similar principle finds mention in Order 2 Rule 2 of the Code of Civil Procedure which provides that the relief which ought to have been claimed on the same cause of action if not claimed, the same shall be barred in a subsequent action. There is no doubt that it has been a settled principle of law that res-judicata applies to all issues raised in the same suit or proceeding at any interlocutory stage. 10. There is no doubt that it has been a settled principle of law that res-judicata applies to all issues raised in the same suit or proceeding at any interlocutory stage. 10. Having said so the main issue in this present case is whether the application under Section 24 of the Hindu Marriage Act for claiming interim maintenance is barred by principles of constructive res-judicata as an application under Section 24 of Hindu Marriage Act was already disposed of by the trial Court by order dated 20.12.2014 by which expenses for the fees of the counsel and travelling was given to the applicant to the tune of Rs. 1,000/- on every date so fixed in the case. There is no doubt that in the earlier application the appellant never sought interim maintenance for her or for her child. Therefore, the right to claim interim maintenance available to the wife from the husband for herself and for her children was never in issue before the learned Court below. But the argument is that the same ought to have been claimed in the earlier application and if not claimed the second application will be barred. A number of judicial pronouncement have been referred on the point of principles of res-judicata. The principles of law so far as the doctrine of the constructive res-judicata is concerned cannot be disputed but the issue in this present appeal is of wider connotation. 11. This cannot be disputed that right of interim maintenance is legally vested right of a wife during the course of matrimonial proceeding if she has no independent source of income. The purpose of such law is very different and in order to protect the wife from being exploited or put to any short of destitution and also that she/he cannot be deprived of the right to pursue legal remedies for want of financial support. It cannot be disputed that the husband is under obligation to provide maintenance to the wife in matrimonial proceeding. It can also be not disputed that so far in the present appeal the husband has not given any amount nor he has been asked to give any amount against maintenance to the wife. It is pertinent to mention that a matrimonial dispute is not just a legal dispute. It can also be not disputed that so far in the present appeal the husband has not given any amount nor he has been asked to give any amount against maintenance to the wife. It is pertinent to mention that a matrimonial dispute is not just a legal dispute. It is a family problem and social concerned, and therefore, matrimonial dispute should not be viewed from the glasses of legal technicalities. It should be appreciated keeping in view the human consideration, being a conflict between husband and wife. Such matter should be dealt with sensitively rather than mechanically keeping in view the object of achieving gender justice as envisaged by our Constitution. 12. We are of the firm view that not providing maintenance by husband to a deserving and needy wife without financial support is a violation of her legal right and so long as such maintenance is not provided, this legal right continues to be violated. Every such violation gives a fresh cause of action and it cannot be adjudicated keeping in view the technicalities of the procedure. Applying the principles of res-judicata and principles of constructive res-judicata to frustrate the maintenance right of a deserving wife is too harsh and have an affect of depriving such wife from her right to life and right to live with dignity. Instead of laying emphasis on the just claim of a wife, using the procedural law to frustrate the same is not at all warranted in the scheme of the Family Courts Act and the Family Courts have been given special power to evolve tools to do justice. Without a maintenance amount there is always a possibility that the claimant side may be deprived of his or her opportunity of fair hearing in absence of such financial support. Moreover, the appellant has a minor child and it was the duty of the learned court below to protect the interest and welfare of the child which cannot be overlooked on the basis of technicalities. Such authority is specifically conferred on the Family Courts under section 26 of the Hindu Marriage Act. 13. From the bare perusal of the application of the applicant, it is clear that she has shown a financial stress as she has to undergo life with her small child without any independent source of income. Such authority is specifically conferred on the Family Courts under section 26 of the Hindu Marriage Act. 13. From the bare perusal of the application of the applicant, it is clear that she has shown a financial stress as she has to undergo life with her small child without any independent source of income. She has also stated that amount which was directed towards maintenance in the proceedings under Section 125 Cr.P.C. is only of Rs. 3,000/-, it is 1/27% of the present income of the husband which is Rs. 81,056/- per month. She has no income for her support. She is living separately being deserted and the amount so granted is not sufficient for her support and to meet the bare necessities of her and her child's life. 14. On the basis of above discussion, we find that learned Court below has passed the impugned order on technicalities without caring the legal and constitutional mandate of equal justice and the purpose for which section 24 has been incorporated in the Act. The impugned order suffers from illegality and perversity and is liable to be set aside with the direction to the learned Court below to dispose of the application a fresh keeping in view the observation made in the body of this judgment. 15. Accordingly, the appeal is disposed of.