Shevata Choudhary vs Neeraj Choudhary

The present petition has been filed by the petitioner under Article 227 of the Constitution of India against order dated 20.04.2018 passed by the learned Additional District Judge (Matrimonial Cases) Udhampur (hereinafter to be referred as the trial court) in file No. 46/HM Act, titled, Shavata Choudhary vs Neeraj Choudhary, with a prayer for issuing a direction to the respondent to pay an amount of Rs. 20,000/- per month to the petitioner as maintenance from the date of filing of the application under section 30 of Hindu Marriage Act before the trial court i.e. with effect from

20.12.2012.

Briefly stated, the present petition has been filed primarily on the ground that the maintenance was required to be granted from the date when the aforesaid application was filed and the learned trial court has wrongly awarded the same from the date of the decision. It is further stated in the petition that the deed of disinheritance was got executed just to deprive the petitioner of her rights, which were available to her under the Hindu Marriage Act and laws governing for grant of maintenance.

Response stands filed by the respondent, in which it is stated that the petitioner herself claimed Rs. 5000/- per month as maintenance pendente lite and Rs. 10,000/- as litigation expenses and the same has been granted to her by the learned trial court. Now the petitioner cannot seek maintenance at enhanced rate through the medium of the present petition. It is further stated that the petitioner filed the petition under section 30 of the Hindu Marriage Act before the trial court on 20.12.2012 and she deliberately delayed the proceedings of the case on one pretext or the other in order to frustrate the proceedings of the divorce and because of the delaying tactics of the petitioner, she was not entitled to maintenance from the date of filing of the petition. It is further stated that the litigating parties are private parties and not the State functionaries, so this petition is not maintainable. It is also stated that this Court cannot interfere to correct mere errors of law or fact or just because another view taken by the Tribunal or courts subordinate to it is a possible view. It is also stated that the petitioner has not stated in her application that she be granted maintenance from the date of filing of the application. It is further stated that the petitioner is getting maintenance from the respondent under section 488 Cr.P.C. and the said petition was finally disposed of on 22.12.2018 by virtue of which a sum of Rs. 8,000/- per month has been granted to the petitioner and the minor from the date of order. On these grounds only, the respondent has prayed for dismissal of the present petition.

Mr. Anil Sethi, learned counsel for the petitioner, during the course of arguments, has restricted his claim only to the extent that the petitioner be awarded the maintenance from the date of filing of the application and has placed reliance on the judgment of the Apex Court in case, titled, Rajnesh v Neha and others, MANU/SC/0833/2020.

On the contrary, Ms. Monika Kohli, learned counsel for the respondent, has vehemently argued that the present petition under Article 227 of the Constitution of India, is not maintainable when the dispute is between the private parties and she has also laid much stress that the petitioner was responsible for delay.

Heard learned counsel for the parties and perused the record.

Vide order dated 20.04.2018, the learned trial court has categorically returned a finding in paragraph No. 18 that the petitioner has succeeded in proving her claim in this petition and as such, she is entitled to the relief and finally a sum of Rs. 5,000/- per month was granted to the petitioner and further a sum of Rs. 10,000/- as litigation charges was also granted to the petitioner. A perusal of the order reveals that the learned trial court has ordered payment of the maintenance from the date of order only.

The first contention raised by the learned counsel appearing for the respondent that the petition under Article 227 of the Constitution of India is not maintainable between the private parties is misconceived. Law is well settled in Radhey Shyam and another v Chhabi Nath and others, (2015) 5 SCC

Relevant paragraphs Nos. 26 and 27 reads as under:

“26. The Bench in Surya Dev Rai also observed in para 25 of its judgment that distinction between Articles 226 and 227 stood almost obliterated.

In para 24 of the said judgment distinction in the two articles has been noted. In view thereof, observation that scope of Article 226 and 227 was obliterated was not correct as rightly observed by the referring Bench in Para 32 quoted above. We make it clear that though despite the curtailment of revisional jurisdiction under Section 115 CPC by Act 46 of 1999, jurisdiction of the High Court under Article 227 remains unaffected, it has been wrongly assumed in certain quarters that the said jurisdiction has been expanded. Scope of Article 227 has been explained in several decisions including Waryam Singh and another vs. Amarnath and anothers, Ouseph Mathai vs. M. Abdul Khadir, Shalini Shyam Shetty vs. Rajendra Shankar Patil and Sameer Suresh Gupta vs. Rahul Kumar Agarwal. In Shalini Shyam Shetty, this Court observed :

However, this Court unfortunately discerns that of late there is a growing trend amongst several High Courts to entertain writ petition in cases of pure property disputes. Disputes relating to partition suits, matters relating to execution of a decree, in cases of dispute between landlord and tenant and also in a case of money decree and in various other cases where disputed questions of property are involved, writ courts are entertaining such disputes. In some cases the High Courts, in a routine manner, entertain petitions under Article 227 over such disputes and such petitions are treated as writ petitions.

We would like to make it clear that in view of the law referred to above in cases of property rights and in disputes between private individuals writ court should not interfere unless there is any infraction of statute or it can be shown that a private individual is acting in collusion with a statutory authority.

We may also observe that in some High Courts there is a tendency of entertaining petitions under Article 227 of the Constitution by terming them as writ petitions. This is sought to be justified on an erroneous appreciation of the ratio in Surya Dev and in view of the recent amendment to Section 115 of the Civil Procedure Code by the Civil Procedure Code (Amendment) Act, 1999. It is urged that as a result of the amendment, scope of Section

115 CPC has been curtailed. In our view, even if the scope of Section 115 CPC is curtailed that has not resulted in expanding the High Court's power of superintendence. It is too well known to be reiterated that in exercising its jurisdiction, High Court must follow the regime of law.

As a result of frequent interference by the Hon'ble High Court either under Article 226 or 227 of the Constitution with pending civil and at times criminal cases, the disposal of cases by the civil and criminal courts gets further impeded and thus causing serious problems in the administration of justice. This Court hopes and trusts that in exercising its power either under Article 226 or 227, the Hon'ble High Court will follow the time honoured principles discussed above. Those principles have been formulated by this Court for ends of justice and the High Courts as the highest courts of justice within their jurisdiction will adhere to them strictly.

(emphasis added)

Thus, we are of the view that judicial orders of civil courts are not amenable to a writ of certiorari under Article 226. We are also in agreement with the view of the referring Bench that a writ of mandamus does not lie against a private person not discharging any public duty. Scope of Article 227 is different from Article 226.”

Thus, the contention that the petition under Article 227 of the Constitution of India is not maintainable qua the dispute between the private parties is misconceived and the same is rejected, particularly in view of the settled position of law that the judicial orders of the civil courts are not amenable to a writ of certiorari under Article 226 of the Constitution of India. So far as the Article 227 of the Constitution of India is concerned, it stands on different footing.

The next contention raised by the respondent is that the petitioner is not entitled to the maintenance from the date of petition as it is the petitioner, who had delayed the disposal of the petition under section 30 of the Jammu and Kashmir Hindu Marriage Act. The present controversy is with regard to the maintenance pendente lite. The duration for the payment of maintenance under section 30 of the Jammu and Kashmir Hindu Marriage Act is coterminous with the pendency of the main petition, either for grant of divorce or for restitution of the conjugal rights. It is not the case of the respondent that because of the proceedings under section 30 of the Jammu and Kashmir Hindu Marriage Act, the proceedings of the divorce petition were stayed by the trial court, rather the proceedings in the main divorce petition as well as the proceedings under section 30 of the Jammu and Kashmir Hindu Marriage Act were being conducted simultaneously so the mere fact that there was delay on the part of the petitioner for conclusion of the proceedings under section 30 of the Jammu and Kashmir Hindu Marriage Act is of no consequence as the proceedings in the main petition were being continued by the learned trial court regularly and were not stalled.

A perusal of the order impugned reveals that no reasons have been assigned by the learned trial court while granting maintenance to the petitioner from the date of order. In a latest pronouncement, in case, titled, Rajnesh v Neha and others, MANU/SC/0833/2020, the Apex Court, while considering the issue as to whether the maintenance awarded under section 12 of the Domestic Violence Act or Hindu Adoption and Maintenance Act or section 24 of the Hindu Marriage Act, is to be granted from the date of order or from the date of application, in paragraph No. 93 has held as under:

“93. It has therefore become necessary to issue directions to bring about uniformity and consistency in the Orders passed by all Courts, by directing that maintenance be awarded from the date on which the application was made before the concerned Court. The right to claim maintenance must date back to the date of filing the application, since the period during which the maintenance proceedings remained pending is not within the control of the applicant.”

The further contention of the respondent is that the power under section 227 of the Constitution of India cannot be exercised to correct the legal or factual error committed by the trial court. There is no dispute with regard to the said proposition of law but the very purpose of section 30 of the Jammu and Kashmir Hindu Marriage Act is to provide the maintenance to either of the spouse during the currency of the main proceedings so that they are in a position to live a life of dignity and to defend the proceedings initiated against them. This Court is of the considered opinion that this is the jurisdictional error that has been committed by the learned trial court as it had failed to exercise its power to grant maintenance to the petitioner pendente lite from the date of filing of the petition, particularly when the learned trial court was of the opinion that the petitioner is entitled to maintenance and in case the petitioner was entitled to maintenance from the date of order, the learned trial court was expected to assign the reasons for the same. This Court deems it proper to exercise its power under section 227 of the Constitution of India to modify the order impugned and by exercising this power, this Court is not correcting either any error of law or fact but has merely corrected the jurisdictional error committed by the trial court.

In view of what has been discussed above, the order impugned dated 20.04.2018 is modified to the extent that the petitioner shall be entitled to the maintenance of Rs. 5,000/- per month from the date of filing of application. The respondent shall be at liberty to liquidate the arrears within a period of eighteen months from today.

Disposed of.