Man Singh vs Hari Devi

Deepak Gupta, J.—This petition under Article 227 of the Constitution of India is directed against the order of the learned Additional District Judge, Shimla dated 3rd December, 2010 whereby he awarded Rs. 10,000/- as litigation expenses and Rs. 5,000/-per month as maintenance pendentelite to the Respondent-wife to be paid by the present Petitioner.

2 Briefly stated the facts of the case are that the husband filed a petition for divorce against the wife. In this petition the wife filed an application u/s 24 of the Hindu Marriage Act, 1955 wherein she prayed that she has No. source of income and is unable to defend her case and requires money to defend her case before the Court. The prayer was that the application be allowed and the non-applicant (husband) be directed to pay a sum of Rs. 20,000/- as expenses of the proceedings. Though there was a general prayer that any other order just and proper be passed a perusal of the application clearly shows that there was neither any averment nor any prayer for grant of maintenance pendentelite.

The Respondent-husband filed a reply and stated that he had No. other income except pension of Rs. 2480/-He also stated that in proceedings u/s 125 Code of Criminal Procedure instituted by the wife for grant of maintenance a settlement had been arrived at and a sum of Rs. 4,50,000/- had been paid in full and final payment. Alongwith the reply a copy of the statement of the wife and order of the learned Judicial Magistrate were annexed, which show that the matter had been settled. According to this settlement, a sum of Rs. 3,75,000/- had been paid. Without going into the question whether another sum of Rs. 75,000/- was paid or not it is obvious that the wife has been paid a substantial amount for maintenance in lumpsum and she had, therefore, withdrawn her case u/s 125 Code of Criminal Procedure

It is urged by Shri V.D. Khidta, learned Counsel for the Respondent, that proceedings u/s 125 of the Code of Criminal Procedure are totally different from a petition u/s 13 of the Hindu Marriage Act. That may be so, but even while granting maintenance pendentelite under the Hindu Marriage Act the Court is bound to consider the factor whether adequate provision has been made for the maintenance of the wife by the husband in other proceedings. I am constrained to observe that the learned trial Court did not even care to go through the reply of the husband or the documents filed by him. The learned Presiding Officer did not even care to read the application where No. prayer for grant of maintenance pendentelite had been made and awarded the same @ of Rs. 5,000/- per month. In the teeth of the specific averment that the husband was only a pensioner and drawing pension of Rs. 2,480 per month how could maintenance at the rate of Rs. 5000/- per month be granted? The learned trial Court did not even refer to the settlement arrived at in the proceedings u/s 125 Code of Criminal Procedure wherein a huge amount was paid to her.

Therefore, I have No. other option but to setaside the order of the learned trial Court in so far as it relates to the grant of maintenance pendentelite. The award in relation to the payment of Rs. 10,000/- as litigation expenses passed by the learned trial Court is upheld. In view of the settlement arrived at between the wife and the husband in criminal proceedings and the fact that she had in fact not claimed any maintenance pendentelite, the order of the learned trial Court is set-aside to this extent. No. costs.