Indu Bala vs Kuldeep Singh and Another

Vinod K.Sharma, J.—This appeal by the appellant-wife is directed against the order dated 22.09.2008 passed by the learned District Judge, Jind, accepting the petition u/s 13(1)(i)(ia) of the Hindu Marriage Act for dissolution of marriage by way of decree of divorce.

The appellant along with the appeal filed C.M.No.M-135 of 2008 u/s 24 of the Hindu Marriage Act for grant of maintenance pendente lite. On the application, this Court on 04.05.2009 passed the following order:-

Along with the counter to the plea u/s 24 of the Hindu Marriage Act, the non-applicant/respondent - husband has filed Annexure R-1/1- salary certification. This pertains to the pre-revision period. Learned counsel for the non-applicant/respondent states that the post FAO revision salary certification shall be placed on record on the next date of hearing. He further informs that the applicant/appellant - wife is also in public employment as a Lab Technician. Learned counsel for the applicant/appellant - wife states that he would have instructions in the relevant behalf and if the averment is found to be correct, he would also place on record post revision salary certification.

As an interim measure, the non-applicant/respondent-husband shall keep on paying maintenance pendente lite @ Rs.2,500/- to the applicant/appellant - wife which was fixed at the trial by the learned Trial Court. The amount shall be payable with effect from the date of application. Besides it, the non-applicant/respondent - husband shall also pay interim litigation expenses quantified as Rs.5,500/-. The payment of arrears shall be made within one month from today. If the order is not complied with, the applicant/appellant - wife shall be entitled to make a mention thereof. List on 20.07.2009, the date already fixed for final disposal.

On 20.07.2009, in pursuance to the order dated 04.05.2009, respondent- husband paid a sum of Rs.5,000/- (Rupees five thousand only) as part payment of the amount due, and the case was adjourned for today for payment of the balance amount.

Instead of making the payment, respondent No.1 took a plea that the amount already stood paid, and in support thereof, he produced the order dated 12.08.2009 passed by the learned District Judge (Family Court), Bhiwani, showing payment of Rs. 10,000/- (Rupees ten thousand only) to the appellant-wife. The order passed by the learned District Judge (Family Court), Bhiwani, reads as under:-

Payment of Rs. 10000/- has been made by respondent to petitioner on account of maintenance. No PW is present. Adjournment is requested. Case is adjourned to 11.09.2009 for remaining payment and for PWs and for settlement. Parties are directed to appear in person on date fixed.

Respondent No. 1 also placed on record the order dated 20.01.2009 showing payment of Rs. 10,000/- (Rupees ten thousand only) in the Court of learned Additional Chief Judicial Magistrate, Bhiwani, to assert that the maintenance fixed by this Court stands paid.

Learned counsel appearing on behalf of respondent No.1 contends, that the reading of the order dated 04.05.2009 shows that the maintenance being paid by the respondent before the learned Matrimonial Court was allowed to be continued, it was in compliance with order passed by this Court that the payment referred to above was made by the respondent.

This contention of the learned counsel for the respondent is totally misconceived. The reading of the order would show that by way of interim measure, the maintenance pendente lite was fixed at Rs.2,500/- (Rupees two thousand five hundred only). Doubt, if any, sought to be raised by the respondent stood cleared by the words, "the amount shall be payable with effect from the date of application", meaning thereby that this was an independent order not concerned with the order passed by the learned Matrimonial Court in any way.

The respondent has not only failed to pay the maintenance fixed by this Court, but a deliberate wrong stand is taken to mis-lead this Court, by taking a plea that the amount stood already paid before the learned Matrimonial Court.

The respondent also took a stand that the total maintenance payable to the appellant was only Rs.2,500/- (Rupees two thousand five hundred only), the one fixed u/s 125 Cr.P.C. as no maintenance was fixed u/s 24 of the Hindu Marriage Act by the learned Matrimonial Court. This stand was taken to justify the submission that an amount of Rs. 10,000/- (Rupees ten thousand only) stood paid before the learned Additional Chief Judicial Magistrate u/s 125 Cr.P.C.

This stand is also false, as vide order dated 08.12.2006, the learned District Judge, Jind, had fixed the maintenance pendente lite at Rs.2,500/- (Rupees two thousand five hundred only), u/s 24 of the Hindu Marriage Act.

The payment of maintenance pendente lite has not been made, despite availing opportunity. In view of settled preposition of law, the husband having failed to pay the maintenance pendente lite and litigation expenses, as fixed by this Court, defence of the respondent-husband is liable to be struck of.

Ordered accordingly.

Consequently, this appeal is allowed and the petition filed by the respondent-husband u/s 13 of the Hindu Marriage Act is ordered to be dismissed with costs, which are assessed at Rs.11,000/- (Rupees eleven thousand only).