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2023 DIGILAW 346 (KAR)

Sulochana v. Nandhakumar Azhagaraja

2023-03-01

PRADEEP SINGH YERUR

body2023
JUDGMENT/ORDER 1. This petition is filed by the wife seeking to set aside the order dtd. 16/11/2019 passed in the matrimonial proceedings initiated by the respondent-husband under Sec. 13(i)(a) of the Hindu Marriage Act, 1955 (for short 'the Act') in MC.No.4560/2017 passed by II Additional Principal Judge, Family Court, Bengaluru and to direct the Family Court at Bengaluru to dispose of the application filed by the petitionerwife under Sec. 24 of the Act for maintenance and litigation expenses. 2. Learned counsel for petitioner, during the course of arguments, submits that he would not press prayer (b) made in the writ petition and the same is placed on record. 3. It is an admitted fact that the petitioner is the wife of the respondent, their marriage having solemnized on 17/3/2006, due to the misunderstanding, differences have cropped up between the couple, a divorce petition came to be filed by the respondent-husband before the Family Court at Bengaluru in MC.No.4560/2017. 4. On appearance, the petitioner filed an application under Sec. 24 of the Act on 30/10/2018 before the Family Court seeking to grant an interim maintenance of Rs.1, 50, 000.00 per month to herself and her son Advik from July, 2017 and also to pay the litigation expenses of Rs.1, 00, 000.00. Pursuant to filing of the said application by the petitioner-wife, the matter was adjourned to file objections and thereafter, objections to the said application was not filed and the same was taken as not filed by the Family Court and posted the matter for hearing on the said application, during which time i.e. on 14/3/2019, the respondent-husband filed an application to recall the order and permit him to file objections to the said application and the same was allowed by the Family Court and objections to IA was accepted by the Family Court. 5. On 24/6/2019, the petitioner's counsel submitted his arguments on the application under Sec. 24 of the Act and the matter was posted to hear the arguments of the respondent-husband, as no arguments were addressed by the respondent-husband and the matter was posted for evidence. On 20/7/2019, the respondent filed his evidence by way of affidavit and the same was accepted by the Family Court and the matter was adjourned thereafter for cross-examination of PW.1 therein. 6. On 20/7/2019, the respondent filed his evidence by way of affidavit and the same was accepted by the Family Court and the matter was adjourned thereafter for cross-examination of PW.1 therein. 6. This being the state of affairs, the petitioner-wife filed an application seeking permission to file objections to the main petition and accordingly, the same was filed and accepted by the Family Court. Thereafter, the petitioner-wife filed another application before the Family Court at Bengaluru praying to consider and dispose of the application filed by the petitionerwife under Sec. 24 of the Act before proceeding further in the matter. 7. Despite the said application being filed to consider and dispose of the application under Sec. 24 of the Act, the learned Family Judge has disallowed the application vide order dtd. 16/11/2019 stating that 'However, it is noticed that there is no any provision under law that IA U/s.24 of Hindu Marriage Act has to be disposed off before proceeding further, which was filed on 30/10/2018'. Pursuant to this order, a memo came to filed by the petitioner to dispose of IA.No.7 intending to challenge the order dtd. 16/11/2019 before the Family Court and same also came to be rejected and thereafter, the evidence of the petitioner-wife herein/respondent therein came to be taken as 'Nil' and the matter was posted for arguments on the main. Hence, the petitioner is before this Court. 8. By virtue of an interim order, stay of proceedings has been granted by this Court and nothing is proceeded thereafter. 9. The factual aspects of the matter, which are discussed above are not disputed by both learned counsel. Learned counsel for respondent contends that if the petitioner had filed statement of objections earlier and argued the matter and cross-examine PW.1 on 20/7/2019 or thereafter, he could have still continued with his arguments on the application under Sec. 24 of the Act and the Family Court could have disposed of the same. However, the fact remains that the Family Court has not disposed of the application i.e. IA.No.3 filed under Sec. 24 of the Act within the period stipulated under the provisions of Sec. 24 of the Act. Proviso to Sec. 24 of the Act prescribes time limit for disposal of the application filed under Sec. 24 of the Act. Sec. 24 and proviso to sec. 24 of the Act reads as under: "24. Proviso to Sec. 24 of the Act prescribes time limit for disposal of the application filed under Sec. 24 of the Act. Sec. 24 and proviso to sec. 24 of the Act reads as under: "24. Maintenance pendente lite and expenses of proceedings.-Where in any proceeding under this Act 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 the wife or the husband, order the respondent to pay to the petitioner the expenses of the proceeding, and monthly during the proceeding such sum as, having regard to the petitioner's own income and the income of the respondent, it may seem to the court to be reasonable: Provided that the application for the payment of the expenses of the proceeding and such monthly sum during the proceeding, shall, as far as possible, be disposed of within sixty days from the date of service of notice on the wife or the husband, as the case may be." 10. On perusal of Sec. 24 of the Act, there is no ambiguity and same is not in dispute by both learned counsel on record. Proviso to Sec. 24 of the Act very clear says that the application filed under Sec. 24 of the Act shall be disposed of, 'as far as possible within a period of 60 days from the date of service of notice on the wife or the husband, as the case may be'. 11. In the present case on hand, the application having been filed on 30/10/2018 and learned counsel for petitionerwife having argued the application for maintenance on 24/6/2019 and no reply having been addressed by learned counsel for respondent-husband, no orders came to be passed by learned Family Judge. However, the matter was taken up for evidence on 20/7/2019 by allowing the respondent to lead his evidence as he had traveled all the way from Riyadh. 12. It is the duty cast upon the Family Court to dispose of the application under Sec. 24 of the Act within a period of 60 days from the date of service of notice on the respondent. 12. It is the duty cast upon the Family Court to dispose of the application under Sec. 24 of the Act within a period of 60 days from the date of service of notice on the respondent. For whatever reason, if the same is not disposed of within 60 days, the Family Court shall endeavour to dispose of the application within a reasonable amount of time before proceeding to lead evidence, which would be the next stage of proceedings. In the circumstances, in the present case where the respondent travelled from outside the country, adduced his evidence on 20/7/2019, the least, the Family Court could have done was pursuant to recording of evidence, ought to have disposed of the application filed under Sec. 24 of the Act. The same is also not done in the present case. The purpose of enactment of Sec. 24 of the Act is to benefit the person seeking maintenance to sustain herself or himself and for meeting the litigation expenses during the pendency of the proceedings initiated by the petitioner. Hence, in all probability and in all circumstances, the duty is cast upon the Family Court to dispose of the application within a period of 60 days or as soon as possible thereafter and not later than recording of evidence of either of the parties, as it would frustrate the very purpose of enactment of Sec. 24 of the Act. The purpose of Sec. 24 of the Act is to provide monetary assistance to the petitioner/applicant to maintain herself and minor child, if any during the pendency of the proceedings so that he/she is not driven to penury or to the streets. Therefore, the order of the Family Court in rejecting the application of the petitioner to dispose of the application under Sec. 24 of the Act filed in IA.No.3 is illegal and perverse and same deserves to be setaside. 13. It is made clear and a direction is issued to all the Family Courts/other Courts in the State of Karnataka to dispose of the application filed under Sec. 24 of the Act or applications for interim maintenance under other enactments 'as for as possible within 60 days from the date of receipt of service of notice from the Court. The Courts dealing in such interim applications for maintenance shall endeavor to dispose of the said applications before recording the evidence on the main matter. The Courts dealing in such interim applications for maintenance shall endeavor to dispose of the said applications before recording the evidence on the main matter. 14. In view of the discussions made above, I proceed to pass the following: ORDER i) The petition is allowed; ii) The order dtd. 16/11/2019 passed by II Additional Principal Judge, Family Court, Bengaluru in MC.No.4560/2017 is set aside; iii) The II Additional Principal Judge, Family Court, Bengaluru shall dispose of the application filed under Sec. 24 of the Act in IA.No.3 after hearing both parties, within a period of one month from the date of receipt of a copy of this order; iv) It is also made clear that after disposing of the application in IA.No.3 filed under Sec. 24 of the Act, the learned Family Judge shall provide an opportunity to the petitioner to crossexamine the witness, PW.1 and proceed further in the matter in accordance with law; v) No observation is made with regard to merits of the matter and the Family Court is at liberty to deal with the same in accordance with law.