Allahabad High Court

Pramod Kumar Yadav vs Smt Kiran Devi on 25 November, 2024

Bench: Saumitra Dayal Singh, Yogendra Kumar Srivastava





HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


?Neutral Citation No. - 2024:AHC:184310-DB
 
Court No. - 39
 

 
Case :- FIRST APPEAL DEFECTIVE No. - 730 of 2024
 

 
Appellant :- Pramod Kumar Yadav
 
Respondent :- Smt Kiran Devi
 
Counsel for Appellant :- Pradeep Yadav,Vandana Singh
 

 
Hon'ble Saumitra Dayal Singh,J.

Hon'ble Dr. Yogendra Kumar Srivastava,J.

Re: Civil Misc. Delay Condonation Application No. 2 of 2024

1. Present appeal has been filed with some delay.

2. Earlier, the appeals were reported in time upto 90 days. However, upon order dated 11.07.2024 passed by a coordinate bench in First Appeal No. 129 of 2024 (Abhinav Shukla Vs. Neha Dixit), the limitation to file such appeal has been declared to be 30 days.

3. In view of the facts note above, the present appeal has been reported to be beyond time by 69 days.

4. Cause shown is sufficient. Delay in filing the present appeal is condoned. Delay condonation application is allowed. Office to allot regular number to the appeal.

Order on Appeal

5. Present appeal has been filed against the order dated 30.07.2024 passed by the learned Additional Principal Judge, Family Court, Court No. 3, Deoria in Matrimonial Case No. 1210 of 2022 (Pramod Kumar Yadav Vs. Kiran) whereby the learned court below has provided for date expense and miscellaneous expense @ Rs. 4,000/- per month to the respondent during pendency of the divorce suit instituted by the appellant.

6. Submission is, prior to the impugned order being passed, on another application moved by the respondent, under Section 125 Cr.P.C. in Case No. 71 of 2023 (Kiran Devi Vs. Pramod Kumar Yadav), Additional Principal Judge, Family Court, Court No.1, Deoria, vide his order dated 16.01.2024 has provided for interim maintenance allowance to the respondent @ Rs. 4,000/- per month. According to the appellant that amount is being paid regularly to the respondent.

7. Only to cause deep harassment to the appellant, the respondent filed an application under Section 24 of the Hindu Marriage Act, 1955 that has given rise to the impugned order. Despite specific objection raised by the appellant with respect to the order passed under Section 125 Cr.P.C. and full compliance being made by the appellant of that order, the learned court below has erroneously provided for monthly maintenance allowance @ Rs. 4,000/- per month to the respondent. Merely because the said amount has not been described as maintenance allowance and the impugned order has described it as travelling and other expense, the same may not change the nature of the award. Once the learned court below had made award of maintenance allowance @ Rs. 4,000/- per month, there survived no occasion to make another order for the same amount or lesser amount. In any case, the award of Rs. 4,000/- per month by way of date expense and miscellaneous expense is wholly excessive and arbitrary.

8. Keeping in mind the fact that both parties are residing at Deoria and the cases have been instituted at Deoria itself, the principle in law requires no elaboration. A coordinate bench of this Court in Niraj Kumar Dhakre Alias Pintu Vs. Smt. Karishma; Neutral Citation - 2024:AHC:152463-DB has taken note of the binding law declared in Rajnesh Vs. Neha & Anr., (2021) 2 SCC 324 where it has been observed as below :

"VI. Final Directions

127.In view of the foregoing discussion as contained in Part B ? I to V of this judgment, we deem it appropriate to pass the following directions in exercise of our powers under Article 142 of the Constitution of India.

(a) Issue of overlapping jurisdiction

128. To overcome the issue of overlapping jurisdiction, and avoid conflicting orders being passed in different proceedings, it has become necessary to issue directions in this regard, so that there is uniformity in the practice followed by the Family Courts/District Courts/Magistrate Courts throughout the country. We direct that:

128.1. (i) Where successive claims for maintenance are made by a party under different statutes, the court would consider an adjustment or set-off, of the amount awarded in the previous proceeding(s), while determining whether any further amount is to be awarded in the subsequent proceeding.

128.2. (ii) It is made mandatory for the applicant to disclose the previous proceeding and the orders passed therein, in the subsequent proceeding.

128.3.(iii) If the order passed in the previous proceeding(s) requires any modification or variation, it would be required to be done in the same proceeding.

(b) Payment of Interim Maintenance

129.The Affidavit of Disclosure of Assets and Liabilities annexed as Enclosures I, II and III of this judgment, as may be applicable, shall be filed by both parties in all maintenance proceedings, including pending proceedings before the Family Court/District Court/Magistrates Court concerned, as the case may be, throughout the country.

130.For determining the quantum of maintenance payable to an applicant, the court shall take into account the criteria enumerated in Part B ? III of the judgment. The aforesaid factors are however not exhaustive, and the court concerned may exercise its discretion to consider any other factor(s) which may be necessary or of relevance in the facts and circumstances of a case.

(d) Date from which maintenance is to be awarded

131. We make it clear that maintenance in all cases will be awarded from the date of filing the application for maintenance, as held in Part B ? IV above."

9. Thus, by way of principle in law, it cannot be disputed that repeated award for same or lesser amount by way of maintenance allowance cannot be executed separately. Once the higher amount awarded under an earlier order is being complied, any other order for equal or lesser amount of maintenance allowance would be deemed to have been satisfied.

10. Here, the appellant claims that he is paying Rs. 4,000/- per month under Section 125 Cr.P.C. w.e.f. January, 2024. While we may not record any fact finding in that regard, we do recognise, subject to such compliance being made, he may not be saddled with further payment of Rs. 4,000/- per month towards maintenance allowance under any other order.

11. Insofar as the impugned order is concerned, though it does not provide for award of monthly maintenance allowance, it cannot be disputed that the appellant had taken the objection and it has been clearly recorded by the learned court below that the appellant is required to pay maintenance allowance @ Rs. 4,000/- per month under Section 125 Cr.P.C.

12. Seen in that light, once the learned court below had in parallel proceeding reached a conclusion considering the social and financial status of the parties and awarded Rs. 4,000/- per month to the respondent, it defies logic and common sense that the learned court below has reached a conclusion that the respondent would require or is in need of additional amount @ Rs. 4,000/- for travelling and other expenses. Once monthly maintenance allowance has been quantified @ Rs. 4,000/- per month, travelling and other expense, if at all may have been awarded wholly commensurate and consistent to the monthly maintenance allowance awarded.

13. Whichever way we look at the matter, the award of Rs. 4,000/- does not appear to be sustainable towards travelling and other expense.

14. In view of the above, we are of the opinion, the matter requires reconsideration by the learned court below. In view of that satisfaction reached, we further find no useful purpose may be served in issuing notice to the respondent as that may only had to waste of precious time. Accordingly, the impugned order is set aside with the following conditions :

(i) The appellant shall continue to pay monthly maintenance allowance as awarded by the order dated 16.01.2024 in proceeding under Section 125 Cr.P.C. being Case No. 71 of 2023 (Kiran Devi Vs. Pramod Kumar Yadav). Any arrears in that regard be cleared on or before 15.12.2024.

(ii) The appellant shall continue to provide for travelling and date expense @ Rs. 1,000/- per month from the date of the impugned order (30.07.2024) onwards. Any arrears in that regard be cleared on or before 15.12.2024.

(iii) Subject to the above conditions being complied, the learned court below may rehear the parties and pass a fresh order with respect to order passed under Section 24 of the Hindu Marriage Act, 1955 being Case No. 1210 of 2022 (Pramod Kumar Yadav Vs. Kiran), as expeditiously as possible, preferably within a period of three months from the date of full compliance of this order made by the appellant.

15. Keeping in mind the observations made above, it is further made clear, if the petitioner fails to comply with the terms of this order, the present order may not be given effect and the impugned order would be deemed to have attained finality from that date.

16. With the aforesaid observation, present appeal is disposed of.

Order Date :- 25.11.2024

Abhilash

(Dr. Y. K. Srivastava, J.) (S. D. Singh, J.)