Allahabad High Court
Imran Ali vs Mohsina Bano on 17 February, 2023
Bench: Devendra Kumar Upadhyaya, Subhash Vidyarthi
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
?Court No. - 9
Case :- FIRST APPEAL No. - 93 of 2022
Appellant :- Imran Ali
Respondent :- Mohsina Bano
Counsel for Appellant :- Shrikant Mishra,Kumar Jaikrit
Counsel for Respondent :- Ravindra Shukla
Hon'ble Devendra Kumar Upadhyaya,J.
Hon'ble Subhash Vidyarthi,J.
1. Heard Mr. Hemant Tripathi holding brief of Mr. Shrikant Mishra, learned counsel for the appellant and Mr. Ravindra Shukla, learned counsel representing the respondent.
2. The instant appeal under Section 19 of the Family Courts Act, 1984 has been preferred challenging an order dated 18.08.2022, passed by Principal Judge, Family Court, Sultanpur, whereby the appellant has been directed to pay Rs.4,000/- per month as an interim maintenance and expenses of proceedings to the respondent.
3. Submission of learned counsel for the appellant primarily is that since the parties to this appeal are Muslims and under Muslim Law there is no such provision which permits the Family Court to pass an order directing payment of interim maintenance or expenses of the proceedings.
4. In support of his submission, he has relied upon a judgment of Hon'ble High Court of Madhya Pradesh at Jabalpur delivered on 06.07.2018 in Writ Petition No.17973 of 2016; Mohd. Hasan Vs. Kaneez Fatima.
5. It has been urged by learned counsel for the appellant on the strength of the aforesaid arguments that since the parties herein are Muslims, the order passed by learned Principal Judge, Family Court, Sultanpur is bad in law and without jurisdiction.
6. On the other hand, learned counsel representing the respondent has submitted that in the facts and circumstances of the case, the order passed by learned Principal Judge, Family Court, Sultanpur need not be interfered with.
7. So far as the submission made by learned counsel for the appellant that the parties being Muslims the order impugned in this appeal is bad in law is concerned, such argument reflects only half truth. The Hon'ble High Court of Madhya Pradesh, Jabalpur in the case of Mohd. Hasan (supra) was confronted with a situation where interim maintenance was granted by the court concerned under Section 24 of Hindu Marriage Act. Admittedly, in the said case as well the parties were not Hindus, rather Muslims and accordingly Section 24 of Hindu Marriage Act would have no applicability.
8. So far as the facts of the present case are concerned, the parties herein as well are Muslims and a suit for annulment of marriage/divorce has been filed by the appellant against the respondent before the Court of learned Principal Judge, Family Court, Sultanpur. In the pending suit an application was made by the respondent on 03.03.2021, praying therein that a direction may be issued to the appellant-plaintiff for payment of interim maintenance to the tune of Rs.20,000/- per month. It was further prayed that a direction may also be issued to pay Rs.5,000/- towards expenses of proceedings.
9. The learned Court below has thus allowed the application moved by the respondent by the impugned order directing that the appellant-plaintiff shall make payment of Rs.4,000/- per month towards interim maintenance and expenses for the proceedings to the respondent. It is to be noticed that the respondent while moving the application dated 03.03.2021 did not make mention as to under which provision the application was made. An objection before the learned Court below was taken by the appellant-plaintiff that under Section 24 of Hindu Marriage Act, the respondent being Muslim is not entitled to the interim maintenance. The said submission does not pose any question to the learned Court below to exercise its jurisdiction under Section 125 of Code of Criminal Procedure. Section 125 Cr.P.C. also permits payment of maintenance and even interim maintenance. The petitions under Section 125 Cr.P.C. are also tried and decided by the Courts created under the Family Courts Act.
10. So far as the jurisdiction of the Family Court for award of interim maintenance is concerned, in our opinion the courts are not barred from entertaining any such application, though such applications cannot be entertained under Section 24 of Hindu Marriage Act if parties to the proceedings before it are Muslims.
11. In view of the aforesaid, we are not in agreement with the submissions made by learned counsel for the appellant-plaintiff. However, what we notice in the impugned order is that the said order does not discuss as to the income of the appellant-plaintiff; even the respondent while making an application dated 03.03.2021 did not clearly state as to the amount of income of the appellant-plaintiff and its source.
12. Learned counsel for the appellant has stated that the appellant is a student and he does not have any independent source of income, however, in absence of pleadings before the learned Court below in respect of this issue, no finding by us can be returned in this appeal.
13. Accordingly, we are of the opinion that the matter requires reconsideration by the learned Principal Judge, Family Court. We thus allow the appeal and set aside the order dated 18.08.2022.
14. We permit the respondent to move another appropriate application under Section 125 of Cr.P.C. or any other relevant provision with prayer for grant of interim maintenance before the learned Court below, giving adequate and requisite details therein. Once any such application is moved. The appellant-plaintiff while filing his reply, shall also disclose clearly and categorically his sources of income and the amount of earning. In case any application under this order is preferred by the respondent before the Court below, the same shall be considered and decided with expedition, say, within a period of two months from the date such application is preferred.
15. We also direct that the parties to the proceedings before the learned Court below shall not be entitled to seek any adjournment which, however, may be granted only under exceptional circumstances, that too, under specific order to be passed by the Court concerned in this regard.
.
(Subhash Vidyarthi, J.) (Devendra Kumar Upadhyaya, J.)
Order Date :- 17.2.2023
Ram.
