Sadhana Deepak Naik vs Deepak Laxman Naik

S.G. Mutalik, J.—Rule. Taken on the Board for Goal hearing with consent of the parties. The present applicant is the respondent in HMP No. 77 of 1991 filed by the non-applicant and it is pending in the Court of Civil Judge, Senior Division, Buldhana. The non-applicant has asked for divorce against the applicant on (he ground of cruelly-physical and mental as well as desertion. In Hindu Marriage Petition No. 77/1991, it is contended that the applicant is residing at Pathak Galli, Amalner, District Jalgaon.

After service of the notice, the applicant filed (be application u/s 24 of the Hindu Marriage Act (for short "the H.M. Act") for alimony pendente lite and cost of the litigation. The trial Judge by his order dated 4-9-1991 awarded the amount of maintenance at the rate of Rs. 150/- p.m. from the date of the application ie. 5-8-1991. On 28-1-1992 , the non-applicant deposited an amount of Rs. 750/- p.m. in the Court. However, thereafter, be failed to deposit the amount. It is contended that the applicant is a poor lady and she was unable to attend the Court at Buldhana on 2-7-1992 because the non-applicant did not deposit the amount of maintenance for about six months. On 2-7-1992 when the matter was fixed for evidence her Advocate preferred an application for stay of the petition and in the alterative he prayed that direction should be given to the non-applicant to deposit the arrears. He further Bled the application for adjournment on the ground (bat the applicant could not remain present in the Court on account of non-receipt of the amount of maintenance. In application Ex. 31, filed on behalf of the present applicant, it is contended by her Advocate that the applicant could not remain present on each and every date of hearing for want of money and he received such message. Her Advocate further contended (hat he did not think that in her absence, to prosecute the matter for want of instructions and hence he prayed for adjournment for 15 days. The Advocate for the present non-applicant opposed the application by mentioning "that the application is opposed".

The trial Judge rejected the application and observed that the non-applicant deposited the amount of maintenance of Rs. 750/- on 28-1-1992 and even today i.e. on 2-7-1992 he has deposited the amount of maintenance of Rs. 750/-. It is further observed that the non-applicant was prolonging the matter on one ground or the other.

Subsequent application Ex. 33 filed on behalf of the applicant was also rejected by the trial Judge, in view of the order passed below Ex. 31.

Being aggrieved, the said impugned order is challenged in the present civil revision application.

It is submitted by Shri R.L. Khapre learned counsel, for the applicant that the trial Judge awarded the maintenance pendentelite at the rate of Rs. 150/- p.m, only and even it is difficult for the applicant to maintain herself within the said paltry amount. He further submitted that in the application Ex. 33, it is specifically contended by the applicant that she is required, to travel a distance of about 500 to 550 kms. from Amalner to Buldhana and as she had no funds to pay for travelling charges, she was unable to come. This particular difficulty put forth by the applicant is not at all considered by the trial Judge. Shri P.B Patil learned counsel for the non-applicant submitted that the non-applicant deposited the amount of Rs. 750/- in the Court on 28-1-1992 and, thereafter, on 2-7-1992 i.e. on the date when the matter was fixed for hearing and thus there was no difficulty for the applicant to attend the Court at Buldhana and to give instructions to her Advocate.

After the order is passed u/s 24 of the H.M. Act, it appears that for the first time, the non-applicant deposited the amount of Rs. 750/- on 28-1-1992. However, there is no explanation given by the non-applicant, as to why he did not deposit the subsequent amount regularly at the rate of Rs. 150/- p.m. Only on 2-7-1992 he deposited arrears of Rs. 750/- in the Court. Thus the fact remains that the applicant did not receive the amount of maintenance in every month from January or February, 1992. If at all she had withdrawn the amount of Rs. 750/- deposited by the non-applicant on 28-1-1992, there is every reason to believe that the said amount must have been spent by her for her maintenance. Thus she was without any funds and was unable to travel such a long distance of about 500 to 550 kms. from Amalner to Buldhana and attend the Court. The non-applicant husband has deposited the arrears of Rs. 750/- in the Court on 2-7-1992 and this amount, is yet to be received by the applicant. The trial Judge has totally forgotten this aspect of the case and wrongly rejected her application for adjournment.

Apart from the amount of maintenance awarded by the trial Judge at the rate of Rs. 150/- p.m. it is not known as to whether the trial Judge has awarded any separate amount for the costs of the litigation. The cost of the litigation shall also include what is spent by (be applicant for travelling a distance from place of her residence to the Court. In the present case the applicant is residing at Amalner which is admittedly at a distance of about 500 to 550 kms. from Buldhana. Even now a days it is not possible for a woman to undertake such a long and tedious journey and certainly she requires help of a male person to accompany with her. If that is the case, it is necessary that the non-applicant-husband should pay separately the costs of travelling of the wife and any person who will be accompanying her and also to pay some additional charges for their dear-ness allowance. The trial Judge has certainly lost sight of this particular aspect of the case. However, henceforth direction is given to the trial Judge that he shall direct the non-applicant-husband to pay the additional amount as stated above to the applicant-wife. However, in case if the adjournment is sought by the wife or her Advocate on any ground, in that case she will not be entitled to get the said amount of expenses from the husband. This particular amount will be in addition to (he amount of the costs of the litigation, if the same is ordered by the Court.

In the circumstances the impugned order passed by the trial Judge below Exs. 31 and 33 is hereby set aside. The parties are directed to remain present in the trial Court on 21st September, 1992. Thereafter, the trial Judge shall give suitable date to the parties and shall start recording the evidence-day to day till the arguments are heard. Adjournment may be granted to the parties only on exceptional grounds.

The trial Judge is directed to dispose of the case by the end of December, 1992. The non-applicant shall pay costs of the application and shall deposit the same in the trial Court on or before the date of hearing.