Mrs. Anupam Chaudhary vs Raveen Mohan Chaudhary

A.L. Bahri, J.—This order will dispose of an application tiled u/s 24 of the Hindu Marriage Act. Some of the facts which are not disputed are as under.

Divorce was granted by the trial Court on an petition u/s 13B of the Hindu Marriage Act. The said petition was supported by affidavits filed by both the parties and thereafter the Court also recorded statements of the parties In the statement of the wife Smt. Anupam Chaudhary it was specifically admitted that she will have no further claim for maintenance.

Appeal stands admitted on the ground that consent for the divorce was obtained by fraud. It is not necessary at this stage to refer to the merits of the appeal. Only a petition u/s 24 of the Hindu Marriage Act is under consideration at this stage. It is asserted on behalf of the husband that when the matter was settled a sum of Rs. 1,00,000/- was paid the wife Smt. Anupam Chaudhary. This fact is denied. There is no mention in the proceedings of trial Court regarding payment of this amount. Section 24 of the Hindu Marriage Act reads as under : -

"24 Maintenance pendente lite and expenses of proceedings:- Where in any proceedings 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 teem to the court to be reasonable."

If one of the spouses is not having any independent income sufficient for her or his support on the application, the other party can be asked to pay the same i.e. the maintenance or the litigation expeses. A preliminary objection has been raised on behalf the husband that in view of the statement of Smt. Anupam Chaudhary recorded by the trial Court she cannot get any maintenance. On merits also it is asserted that Smt. Anupam Chaudhary is a teacher and is an earning hand May be for some time she is not paid salary by the school as during vacations normally services of the teachers are dispensed with and they re join after opening of toe school The second preliminary point urged is that after grant of the divorce on mutual consent and after expiry of the requisite period the husband has re-married and he has to maintain his new wife. As far as the second point is concerned, no doubt, the fact that the husband has re married, can be taken into consideration while fixing maintenance, if any, payable to the petitioner but that per se is no ground to hold that the petitioner who is challenging the divorce cannot claim any maintenance.

However, as far as first preliminary objection is concerned, I find force that till the statement is validly recalled, that would be binding on the petitioner In the present case the statement that she would not claim maintenance in future has not so far been set aside. May be the entire statement is under consideration during the appeal. However, as it stands, the petitioner is not entitled to any maintenance or litigation expanses in this petition.

As already stated above, the wife-Smt. Anupam Chaudhary has been employed as a teacher and if during vacations she was not employed that will not show that she has not sufficient funds for maintenance. It is admitted that she was getting Rs. 900/- per month as salary in all. It is, therefore, not necessary to refer to the salary certificate produced on behalf of the husband indicating that his salary is Rs. 3,325/- and further argument that after deductions he has to maintain his second wife also. In the circumstances this civil miscellaneous application for grant of maintenance and litigation expenses is dismissed.

Taking into consideration the nature of litigation, it is considered necessary that the main appeal should be listed for hearing at a very early date. Let the appeal be listed for final hearing on August 20, 1990 high-up in the list.