Jagannath Prasad Kushwaha vs District Judge, Unnao and Others

B.B. Agarwal, J.—Heard Sri Shiv Nath Tilhari from the petitioner and Ms. Manju Gupta from the side of the respondents.

This petition has been moved to quash the judgment and orders dated 28.8.2001 (Annexure No.1), 4.2.2002 (Annexure No.2) and 14.8.2003 (Annexure No.3), passed by Civil Judge, Senior Division, Unnao in case No.199 of 2000, Jagannath Prasad Kushwaha v. Smt. Kiran Kushwaha and judgment and order dated 3.12.2003, passed by District Judge, Unnao, in revision No.42 of 2003 (Annexure No.4).

Annexure No.1 is the order, which goes to show that litigation expenses were claimed by respondent No.1 from the petitioner under Section 24 of the Hindu Marriage Act besides the maintenance for herself and also of her minor children. The Court on this application passed the impugned order whereby no litigation expenses were awarded but only maintenance allowance to the tune of Rs.1000/ has been awarded for the maintenance of both the minor children.

Annexure No.2 is the order regarding rejection of the application No.23Ga which was moved for recall of the order, contained in Annexure No.1 to the petition dated 28.8.2001 passed regarding awarding of interim maintenance allowance to the minor children.

Annexure No.3 is the order by which divorce petition was dismissed and the application 62C which was moved by the respondent No.1 for dismissal of the case due to non compliance of the order dated 28.8.2001 passed for interim maintenance was not complied with. Annexure No.4 is the order of the revisional Court passed in the revision which was preferred against the order of dismissal of the divorce petition.

It appears that a petition under Section 13 of the Hindu Marriage Act was moved by the petitioner against respondent No.3 in the Court of Civil Judge (Junior Division), Unnao. The notice of the application was sent to respondent No.3 Kiran, who put in appearance and moved an application under Section 24 of the Hindu Marriage Act for interim maintenance allowance for herself and her minor children respondent Nos.4 and 5 as well as for awarding of the litigation expenses and this application was partly allowed by the learned Civil Judge to the extent that interim maintenance allowance at the rate of Rs.1000/ was awarded to the respondent No.3 for maintenance of her two minor children. Neither any interim maintenance allowance was awarded to the respondent No.3 nor any amount was awarded towards litigation expenses. Admittedly, the awarded amount has not been paid by the petitioner to the respondents.

It is argued that several applications for execution of the recovery of the awarded amount were moved but every time the Court did not proceed in the matter due to pendency of this writ petition. One application 62C was moved by the respondent No.3 in the Court of Civil Judge for dismissal of the divorce petition as the amount of interim maintenance was not being paid by the petitioner to the respondent No.3. Objections were filed or that application by the petitioner. After hearing both the parties the learned Trial Court (Civil Judge, Senior Division, Unnao) allowed the application 62C and dismissed the suit filed for decree of divorce by the petitioner due to non compliance of the order of interim maintenance allowance dated 28.8.2001 by the petitioner. A revision was preferred against that order and that revision was also dismissed.

It is argued on behalf of the counsel for the petitioner that the respondents No.3 to 5 were awarded maintenance allowance on the application moved by them under Section 125 Cr. P.C. by the competent Court and in that case an amount of Rs.500/ was awarded to each of the respondents No.3 to 5 as maintenance allowance. Subsequently the petition under Section 24 for interim maintenance was moved and in that case an amount of Rs.1000/ was awarded for maintenance of respondents No.4 and 5 only. It is argued that the respondents are claiming maintenance awarded under Section 24 of the Hindu Marriage Act in addition to the amount which has been awarded under Section 125 Cr.P.C. but during the course of argument it is conceded by the counsel for respondents No.3 to 5 that the amount of maintenance allowance awarded in both the petitions shall be adjustable and calculated and separate maintenance allowance cannot be claimed. Therefore, it is admitted fact that respondents No.3 to 5 in view of both the orders passed under Section 125 Cr.P.C. and 24 of Hindu Marriage Act are entitled to claim maintenance allowance at the rate of Rs.500/ to each of the claimants. The petitioner is ready to pay this amount to the claimants and he has undertaken to pay the entire arrears of amount within one month to the respondents No.3 to 5. The amount already deposited towards the maintenance allowance shall be adjusted in the arrears. The respondent has no objection in it.

Therefore, so far as the reliefs regarding quashing of the order dated 28.8.2001 and dated 4.2.2002 are concerned, these order shall be disposed of in the light of the observations made above.

So far as orders contained in Annexures 3 and 4 are concerned, learned trial Court appears to have rejected the petition moved under Section 13 of the Hindu Marriage Act simply on the ground that the petitioners has not complied with the order of the Court dated 28.8.2001. In my opinion, since there was no order for payment of any litigation expenses to the respondent No.3 in the order dated 28.8.2001 and for recovery of the maintenance allowance, separate applications for execution have already been moved and in view of the provisions of Section 28A of the Hindu Marriage Act such orders can be enforced by moving execution application in the concerned Court. Therefore, in my opinion dismissal of the divorce petition on the ground of non payment of maintenance allowance is not legal and no proper order. The amount of maintenance can be recovered by the respondent by filing execution application but due to the non compliance of the said order the petition for divorce cannot be dismissed summarily. The divorce petition in my opinion should be disposed of after considering all other grounds which were taken for claiming divorce on merits. The revisional Court has also not considered this aspect of the case that the petition of divorce should be disposed of on merits after considering all the grounds which was taken for divorce in the said petition. Since the revisional petition has also been dismissed simply on the ground that the petitioner did not comply with the order of the Court regarding payment of interim maintenance allowance, therefore, the revisional order is also bad in law and it requires to be quashed and deserves to be quashed.

Under the circumstances writ petition deserves to be allowed and the order dated 4.8.2003 passed by the trial Court in regular suit No.199 of 2000 Janaggath Prasad v. Smt. Kiran Kuschhwha and the order dated 3.12.2003 passed by the revisional Court in revision No.42 of 2003 are hereby quashed. In that view of the matter the petition is allowed partly. Orders dated 14.8.2003 and 3.12.2003 contained in Annexures 3 and 4 are hereby quashed and orders dated 28.8.2001 and 4.2.2002 are modified as observed in the body of the judgment.

With the above observations petition is disposed of finally.

(Petition allowed)