Ramesh Kumar vs Sunita Sharma

Mehinder Singh Sullar, J.—Shorn off unnecessary details, the brief facts, relevant for disposal of the present revision petition and emanating from the record, are that Ramesh Kumar-Petitioner husband filed a petition against his wife Sunita Sharma-Respondent, for dissolution of their marriage, by a decree of divorce, as contemplated u/s 13 of the Hindu Marriage Act, 1955(hereinafter to be referred as "the Act"). During the course of pendency of the divorce petition, the Respondent-wife moved an application for maintenance pendente lite and expenses of the proceedings, invoking the provisions of Section 24 of the Act.

The Petitioner-husband contested her claim and filed the reply. The trial Court accepted the application of the Respondent-wife and directed him (Petitioner-husband) to pay a sum of Rs. 3,000/-per month as maintenance pendente lite and Rs. 1500/-per month as litigation expenses, over and above, the amount of maintenance of Rs. 3200/-per month, granted to her in the main suit under Hindu Adoption and Maintenance Act, 1956, as per judgment and decree dated 28.02.2007, by way of impugned order dated 17.09.2008.

The Petitioner-husband did not feel satisfied with the impugned order and preferred the instant revision petition, which came up for hearing before a Co-ordinate Bench of this Court (T.P.S. Mann, J.) and the following order was passed on October 23, 2008:

On the last date of hearing, the Petitioner was directed to produce his pay/salary slip. Learned Counsel for the Petitioner has produced photocopy of the salary slip of the Petitioner for the months of October and November, 2002, which is already part of the proceedings under Hindu Adoption and Maintenance Act as Ex.D6. A perusal of the same shows that the Petitioner had received net pay of Rs. 8232/-for each of the aforementioned months. It is submitted that the Petitioner is also required to pay Rs. 3200/-per month to the Respondent u/s 18 of the Hindu Adoption and Maintenance Act, which he is already paying. Therefore, no case was made out for the grant of another sum of Rs. 3,000/-per month as maintenance pendente lite on the application filed by the Respondent u/s 24 of the Hindu Marriage Act.

Notice of motion for 23.1.2009.

In the meantime, operation of the impugned order shall remain stayed.

After hearing the learned Counsel for the parties, going through the record with their valuable assistance and after considering the entire matter deeply, to my mind, the instant revision petition deserves to be accepted in this regard.

What is not disputed here is that the regular Civil Suit No. 40-C of 2006 titled as Sunita v. Ramesh Kumar, filed by the Respondent-wife, under the provisions of Hindu Adoption and Maintenance Act, has already been decreed, much prior to the passing of the impugned order by the Civil Court, by virtue of judgment and decree dated 28.02.2007, which in substance is, as under:

As a sequel to my findings returned on the above said issues, the suit of the Plaintiff succeeds and is hereby decreed with costs. Resultantly, a decree of recovery of maintenance allowance from 1.2.97 to 11.11.2002 @ Rs. 2400/-p.m. and from the period from 12.11.02 onwards till the life time of the Plaintiff @ Rs. 3200/-p.m. is hereby passed. The Plaintiff shall pay the ad valorem court fee on the arrears of one year of the maintenance starting from the day of filing of the present suit, within two months from today, failing which, her suit shall be deemed to be dismissed.

It is not a matter of dispute that the indicated decree has already been upheld by the first Appellate Court, as well as by this Court. Once, the decree in the regular suit under Hindu Adoption and Maintenance Act, has already attained the finality, then to me, the trial Judge slipped into legal error in summarily allowing the application u/s 24 of the Act, completely ignoring the civil court decree in a regular suit with impunity. Therefore, to my mind, the trial Judge has committed the patent illegality and material irregularity in this relevant connection and the impugned order cannot legally be sustained in the eyes of law.

In the light of aforesaid reasons and without commenting further anything on merits, lest it may prejudice the case of either side during the course of subsequent proceedings between the parties, the revision petition is accepted. The impugned order dated 17.09.2008 is hereby set aside, in the obtaining circumstances of the case.

Needless to mention that, the Petitioner-husband would continue paying the maintenance amount of Rs. 3200/-per month to the Respondent-wife, as directed by the civil court in a regular suit, as indicated hereinabove.