Poonam Bhardwaj vs Ashish Abrol
2018 Latest Caselaw 5717 Del

       IN THE HIGH COURT OF DELHI AT NEW DELHI

                             Judgment reserved on: September 14, 2018
                             Judgment delivered on: September 20, 2018

     + MAT. APP. (F.C.) 61/2016
      POONAM BHARDWAJ
                                                          ..... Petitioner

                             Through:   Mr. Jawahar Raja and
                                        Mr. Abhey Narula, Advs.

                    versus



      ASHISH ABROL
                                                        ..... Respondent

                             Through:   Mr. Sharat Kapoor, Mr. Shrey
                                        Kumar, and Ms. Heena
                                        Panchoori, Advs. with
                                        respondent in person.
      CORAM:
      HON'BLE MS. JUSTICE HIMA KOHLI
      HON'BLE MR. JUSTICE V. KAMESWAR RAO

                                JUDGMENT

V. KAMESWAR RAO, J

REV. PET. 249/2017

1. This Review Petition has been filed by Poonam Bharadwaj, (appellant

in the MAT Appeal (FC) 61/2016), seeking review of the order dated

February 27, 2017, passed on an application filed by the respondent, being

CM. No. 7725/2017. The MAT Appeal was directed against the order of

interim maintenance dated March 18, 2016, passed by the learned Family

Court, Saket on an application under Section 24 of the Hindu Marriage Act,

filed by the appellant / petitioner herein awarding an interim maintenance at

`25,000/- per month from the date of the order. It is the case of the appellant

/ petitioner that the appeal was filed both, on the quantum of maintenance

awarded and also challenging the decision to grant maintenance from the date

of passing of the order instead of the date of moving the application. The

appeal was taken up for the first time on April 27, 2016 when this Court had

directed the respondent to remain present on the next date of hearing, i.e., on

May 2, 2016.

2. On May 2, 2016, this Court had passed a detail order, paras 3 to 5

whereof reads as under:

"3. It is trite that orders of maintenance are normally passed w.e.f. the date of making of the application unless the court finds that the applicant was employed or not needing the maintenance for any period during the pendency of the application. There is no such finding in the present case. Therefore, the maintenance payable to the appellant was required to have been directed to be paid w.e.f. the date of the application. Without opining on the merits of the appellant's prayer for enhancement of the maintenance awarded, if computed on the basis of the amount awarded w.e.f. the date of the application, i.e. for the period between January, 2014 to 18th March, 2016 (both months inclusive), the maintenance is liable to be paid for a period of 27 months which comes to a total of Rs. 6,75,000/-.

4. The maintenance for the months of April, 2016 and May, 2016 is also due and payable.

5. Before proceeding in the matter any further, we direct as follows:

(i) The appellant would be entitled to payment of maintenance w.e.f. the date of her Section 24 application under the Hindu Marriage Act, 1955.

(ii) For the time being, without prejudice to the respective rights and contentions of the parties on the aspect of quantum, the respondent is directed to pay the amount of Rs. 6,75,000/- (as computed in para 3 above) within a period of two weeks from today.

(iii) The appellant shall pay the maintenance for the month of April, 2016 and May, 2016 by RTGS mode of transfer into the Saving Bank A/c No.52310137027 maintained by the appellant in Standard Chartered Bank within a period of seven days from today.

(iv) The litigation expenses awarded by the Family Court shall also be paid by the same mode within one week from today.

(v) The payment and acceptance of the above amounts are without prejudice to the respective rights and contentions of both sides.

List on 11th May, 2016 at 3:00 pm when the parties shall also remain present."

3. It may be noted that even the respondent herein had preferred an appeal

against the order of the learned Family Court dated March 18, 2016,

registered as MAT Appeal (F.C.) No. 73/2016 on the ground that the

appellant / petitioner is not entitled to any maintenance. The respondent had

also filed a Review Petition being 234/2016 against the captioned order dated

May 2, 2016, alleging therein that the said order was improper, was legally

untenable and had been passed without application of mind. The said Review

Petition was subsequently withdrawn by the respondent on May 11, 2016. On

the same day itself, notice was issued on MAT. Appeal (FC) 61/2016, filed by

the appellant / petitioner. The respondent had sought leave of the court to pay

the arrears of maintenance to the appellant / petitioner in six equal monthly

installments, which we have been told has not been complied with till date.

4. On August 17, 2016, both the Appeals filed by the appellant / petitioner

& respondent were dismissed and it was held that there was no reason to

interfere with the impugned order passed by the learned Family Court

granting interim maintenance of `25,000/- per month to the appellant /

petitioner. It is the case of the appellant / petitioner that while passing the

order dated August 17, 2016, the court did not take note of the order dated

May 2, 2016 inasmuch as the maintenance should have been awarded from

the date of moving the application. It is also the case of the appellant /

petitioner that the order dated August 17, 2016, was passed without

appreciating the documents / pleadings and the grounds raised by her in the

Appeal, including the ground that the maintenance had wrongly been granted

from the date of order, without considering the ground raised by the appellant

/ petitioner to the effect that the same was payable from the date of filing of

the application.

5. It has been averred by the appellant / petitioner in the Review Petition

that without prejudice to her right to assail the order dated August 17, 2016,

she had filed an application, being CM. No. 36960/2016 submitting inter alia

that the order dated August 17, 2016 had failed to note the earlier order dated

May 2, 2016 and accordingly, a clarification was sought vide the said

application that the order dated August 17, 2016 be clarified to the extent that

the interim maintenance @ `25,000/- per month shall be payable from the

date of the application. The said CM was disposed of by this Court on

October 5, 2016 by stating as under:

"In view of the order dated May 2, 2016, which has attained finality, no clarification is warranted. The amount determined under Section 24 of the Hindu Marriage Act, 1955 shall be payable as per the said order dated May 2, 2016."

6. It is noted that on February 22, 2017, the respondent filed an

application being CM. No. 7725/2017 under Section 152, read with Sections

153 and 151 of the CPC for amendment of the order dated October 5, 2016.

It was the case of the respondent that the order dated October 5, 2016 was

passed in his absence. The said application filed by the respondent was

taken up for hearing on February 27, 2017, when this Court had dismissed

CM. No. 36960/2016 moved by the appellant and in CM. No. 7725/2017,

the order dated October 5, 2016 was corrected, by stating as under:

"In view of the order dated March 18, 2016, which has attained finality, no clarification is warranted. The amount determined under Section 24 of the Hindu Marriage Act, 1955 shall be payable as per the said order dated March 18, 2016.

7. Being aggrieved by the aforesaid orders dated August 17, 2016 and

February 27, 2017, the appellant/petitioner filed an SLP (Civil) No.

7829/2017 before the Supreme Court. Vide order dated April 17,2017, the

Supreme Court did not entertain the SLP but at the request of the learned

counsel for the appellant / petitioner asking for leave to file a review

application, the Supreme Court granted leave.

8. It is the submission of Mr. Jawahar Raja, learned counsel for the

appellant / petitioner that this Court has erred in upholding the order of the

learned Family Court granting maintenance at `25,000/- per month from the

date of passing of the order, by overlooking the settled position of law that

maintenance has to be granted from the date of the application unless, the

appellant / petitioner was found to be working / earning at the relevant time.

According to him, the impugned order dated February 27, 2017 is erroneous

as the Court had dismissed CM. No. 36960/2016 when the same had already

been considered and an order passed on October 5, 2016.

9. Learned counsel for the appellant / petitioner further stated that the

Court had erred while considering the application of the respondent being

CM. No. 7725/2017 and holding that the order dated October 5, 2016 required

correction. According to Mr. Raja, the earlier order dated May 2, 2016

holding that the appellant/petitioner is entitled to maintenance, had become

final between the parties as no ground had been shown by the respondent to

disentitle her from the said relief and the said order in any event, was not

challenged / appealed against by the respondent. He thus justified the order

passed by this Court on October 5, 2016. According to Mr. Raja, there is no

finding by this Court in the order dated August 17, 2016, on the aspect as to

whether the appellant / petitioner is not entitled to maintenance from the date

of the application. In the absence of any finding, the appellant / petitioner had

to file CM. No. 36960/2016 on which an order was rightly passed on October

5, 2016. Otherwise, the grievance of the appellant / petitioner in her appeal

would have remained unaddressed as apart from the quantum of maintenance,

it was her plea that she was entitled to maintenance from the date of the

application. Learned counsel would rely upon the judgments of the Supreme

Court in the case of the Jaiminiben Hirenbhai Vyas v. Hirenbhai

Rameshchandra Vyas (2015) 2 SCC 385 and Vinod Kumar Jolly v. Sunita

Jolly and Anr. I (2008) DMC 371 to justify the above submission.

10. On the other hand, Mr. Sharat Kapoor, learned counsel appearing for

the respondent would justify the order dated February 27, 2017. He submitted

that the application for review filed by the appellant/petitioner is not

maintainable as it is hopelessly time barred and not tenable in law. He also

stated that the review petition seeking recall of the order dated February 27,

2017 shall only be maintainable if there is an error apparent on the face of the

record. He states that Order XLVII Rule 1 of the CPC provides that a review

is maintainable only if there is a discovery of new and important matter or

evidence which, after the exercise of due diligence, was not within the

knowledge of the aggrieved or could not be produced by him at the time when

the decree was passed, which is not the case here. Even otherwise, it was

argued that the order dated March 18, 2016 passed by the learned Family

Court having attained finality on the passing of the order dated August 17,

2016 in MAT. Appeal (F.C.) 61/2016 and MAT. Appeal (F.C.) 73/2016, as

such, the review petition is liable to dismissed.

11. On merits, it was contended on behalf of respondent that there are

circumstances which justified the grant of maintenance only from the date of

passing of the order as the appellant / petitioner had been working before the

marriage on a handsome salary and during the period when the parties had

lived together as husband and wife as also after their separation. He

submitted that there is evidence on the record of her earnings and expenditure

in these tenures, thus evidencing her income during the period of the

separation and during the pendency of the Divorce Petition and her

application for maintenance. Learned counsel thus seeks dismissal of the

review petition. He relied upon the judgment of the Supreme Court in the

case of Smt. Jasbir Kaur Sehgal v. the District Judge Dehradun and Ors.

1997 (5) SCALE in support of his submissions.

12. Having heard the learned counsel for the parties and on noting the

aforesaid facts, the only issue which arises for our consideration is whether

the order dated February 27, 2017 needs to be reviewed.

13. First of all, we shall deal with the submission of Mr. Kapoor, learned

counsel for the respondent that the Review Petition is barred by time. Suffice

it to state, that the Review Petition has been filed by the appellant / petitioner

on May 17, 2017 pursuant to the liberty granted to her by the Supreme Court

on April 17, 2017. The liberty granted was unconditional. Therefore, the

issue of limitation would not arise. On merits, there is no dispute that the two

appeals filed by the parties herein against the grant of interim maintenance by

the learned Family Court vide order dated February 27, 2017 were dismissed

by the Division Bench. One of the grounds of challenge by the appellant /

petitioner to the order dated March 18, 2016 was that the interim maintenance

granted by the Family Court must relate back to the date of the application. It

is not denied by Mr. Kapoor that there is no finding in the order dated August

17, 2016 passed by this court in that regard. In the absence of any finding,

surely, the appellant herein had a cause to seek clarification of the order dated

August 17, 2016, which she did by filing CM. No. 36960/2016.

14. The captioned application was considered by this Court on October 5,

2016, when it was clarified that the amount under Section 24 of the Hindu

Marriage Act, 1955 shall be payable as per the order dated May 2, 2016, the

effect of which is that the interim maintenance granted by the Family Court

shall relate back to the date of moving the application. In fact, the said order

had the effect of disposing of CM. No. 36960/2016. Be that as it may, in the

interregnum, the respondent had also filed CM. No. 7725/2017. Both the said

applications, i.e. CM No. 36960/2016 and CM No. 7725/2017 were

considered by the Court on February 27, 2017, on which date, CM. No.

36960/2016 was dismissed.

15. In so far as CM. No. 7725/2017 is concerned, the Court passed an order

correcting its earlier order dated October 5, 2016 stating that the amount as

determined under Section 24 of the Hindu Marriage Act, 1955 shall be

payable as per the order dated March 18, 2016, which in effect means that the

order of the learned Family Court would determine the interim maintenance,

i.e., at `25,000/- per month payable from the date of the order. As a matter of

fact, this order is at variance with the earlier order passed by this court on

October 5, 2016. No doubt, the appellant/petitioner had filed an SLP

challenging the orders dated February 27, 2017 and August 17, 2016 which

was dismissed, but at the same time, Supreme Court had granted her liberty to

approach the High Court for filing a review application. It is in view of the

liberty granted by the Supreme Court, that the present review application has

been filed. The relief prayed for in the review application is to a limited

extent, i.e., for reviewing the order dated February 27, 2017.

16. The question which arises for our consideration is whether this Court

could have corrected the earlier order dated October 5, 2016 by passing an

order dated February 27, 2016, holding that the maintenance payable to the

appellant/petitioner shall be regulated by the order dated March 18, 2016. To

answer that question, it would be important to note that one of the grounds

raised by the appellant / petitioner while challenging the order dated March

18, 2016, was that the interim maintenance must relate back to the date of the

application. Though Mr. Kapoor, learned counsel for the respondent had

relied upon para 17 of the order dated August 17, 2016, but he conceded that

there is no finding in the said order rejecting the ground taken by the appellant

/ petitioner to the effect that the interim maintenance must relate back to the

date of the application under Section 24 of the Hindu Marriage Act, 1955. If

that be so, surely the appellant / petitioner had a grievance for which she filed

an application, CM No. 36960/2017, seeking clarification of the order dated

August 17, 2016 which order was clarified by this court on October 5, 2016.

17. We have no doubt that this court had fallen in an error while correcting

the order dated October 5, 2016, on the basis of the application filed by the

respondent. In effect, the order October 5, 2016 is in conformity with the law

laid down by the Supreme Court in Jaiminiben Hirenbhai Vyas (supra),

wherein the following was held:-

" 8. In Shail Kumari Devi v. Krishan Bhagwan Pathak, ([2008] 9 SCC 632), this Court dealt with the question as to from which date a Magistrate may order payment of maintenance to wife, children or parents. In Shail Kumar Devi, this Court considered a catena of decisions by the various High Courts, before arriving at the conclusion that it was incorrect to hold that, as a normal rule, the Magistrate should grant maintenance only from the date of the order and not from the date of the application for maintenance. It is, therefore, open to the Magistrate to award maintenance from the date of application. The Court held, and we agree, that if the Magistrate intends to pass such an order, he is required to record reasons in support of such Order. Thus, such maintenance can be awarded from the date of the Order, or, if so ordered, from the date of the application for maintenance, as the case may be. For awarding maintenance from the date of the application, express order is necessary.

9. In the case before us, the High Court has not given any reason for not granting maintenance from the date of the application. We are of the view that the circumstances eminently justified grant of maintenance with effect from the date of the application in view of the finding that the Appellant had worked before marriage and had not done so during her marriage. There was no evidence of her income during the period the parties lived as man and wife. We, therefore reverse the Order of the High Court in this regard and direct that the respondent shall pay the amount of maintenance found payable from the date of the application for maintenance. As far as maintenance granted under

Section 24 of the H.M. Act by the Courts below is concerned, it shall remain unaltered". (emphasis added)

18. In Vinod Kumar Jolly (supra), the High Court had held as under:-

"16. Insofar as other appeal filed by the wife and child of the appellant is concerned, we find from the impugned judgment that no reasons are given by the learned ADJ as to why the direction is given to pay maintenance from the date of the order only and not from the date of filing of the petition. The normal rule is that the maintenance is to be allowed from the date of filing of the petition. If this rule is to be deviated, there has to be special reasons for adopting such course. We find none. Therefore, second appeal has to be allowed. The judgment dated 4.11.2006 is modified to the extent that maintenance @ Rs. 2500/- to the respondent No. 2 and Rs. 1500/- per month to the respondent No. 1 shall be paid by the appellant to them w.e.f. 21.2.1995. The appellant, however, shall be entitled to seek adjustment of the amounts of maintenance which the appellant had paid to the respondents in the proceedings in divorce petition which he was ordered to pay under Section 24 of the Hindu Marriage Act. Adjustment of only that amount which was paid after 21.2.1995 shall be given. Arrears of maintenance shall be calculated and paid by the appellant to the respondents within two months. In case appellant wants to pay the arrears in Installments, he shall be at liberty to approach the Trial Court for this purpose and such a request, if any, shall be considered by the Trial Court on its own merits." (emphasis added)

19. In so far as the judgment in the case of Smt. Jasbir Kaur Sehgal

(supra) relied upon by learned counsel for the respondent is concerned, in the

said judgment, it is noted that the concerned court had awarded the wife

maintenance of `1,000/- per month. Her revision petition before the District

Judge was dismissed. Thereafter, she had filed a writ petition under Article

227 of the Constitution of India, whereby the High Court had granted her

maintenance @ `1,500/- per month. The Supreme Court enhanced the

maintenance pendent lite at `5,000/- per month. The question that arose

before the Supreme Court was as to what should be date from which the wife

would be entitled to claim enhanced amount of maintenance, pendent lite. In

para 9 of the said decision, the Supreme Court held as under:

"9. The question then arises as to from which date the wife would be entitled to claim the enhanced amount of maintenance pendente lite. If wife has no source of income it is the obligation of the husband to maintain her and also children of the marriage on the basis of the provision contained in the Hindu Adoption and Maintenance Act, 1956. Her right to claim maintenance fructifies on the date of the filing of the petition for divorce under the Act. Having thus fixed the date as the filing of the petition for divorce it is not always that the court has to grant the maintenance from that date. The court has discretion in the matter as to from which date maintenance under Section 24 of the Act should be granted. The discretion of the court would depend upon multiple circumstance which are to be kept in view. These could be the time taken to serve the respondent in the petition the date of filing of the application under Section 241 of the Act; conduct of the parties in the proceedings; averments made in the application and the reply there to; the tendency of the wife to inflate the income out of all proportion and that of the husband to suppress the same; and the like. There has to be honesty of purpose for both the parties which unfortunately we find lacking in this case. We are therefore of the opinion that ends of justice would be met if we direct that maintenance pendente lite as fixed by this judgment to be payable from the date of impugned order of

the High Court which is October 16, 1996. We order accordingly. The impugned judgment of the High Court shall stand modified to that extent. All arrears of maintenance shall be paid within a period of two months from today and then regularly every month." (emphasis added)

20. It is thus apparent that the abovesaid judgment of the Supreme Court

was passed only to meet the ends of justice. The Supreme Court had directed

that maintenance, pendente lite shall be payable from the date of the

impugned order of the High Court.

21. In the case in hand, the reasons given by this Court in its order dated

May 2, 2016, holding that the appellant/petitioner shall be entitled to

payment of maintenance from the date of the application, has already been

reproduced above. Suffice it is to state that in para 3 of the order, this court

has held that normally, the order of maintenance has to be passed w.e.f from

the date of the application, unless the court finds that the applicant was

employed or not needing the maintenance for any period during the pendency

of the application. The conclusion of the Court was that there is no finding in

the order dated March 18, 2016 passed by the learned Family Court in that

regard. Therefore, the maintenance payable to the appellant / petitioner was

required to have been directed to be paid w.e.f the date of the application, i.e.

w.e.f April, 2014.

22. No doubt, in the order dated May 11, 2016, this court had stated that

the directions issued on May 2, 2016 and those issued on May 11, 2016 were

not a final view of the matter and the maintenance had been computed

without prejudice to the rights and contentions, but at the same time, we also

note that the learned Family Court had given a finding that the appellant /

petitioner is earning an amount of `1 lakh per month and the respondent

herein, about `2 lakh per month. Despite that, the learned Family Court had

granted an amount of `25,000/- per month as maintenance to the appellant /

petitioner. Having granted the appellant / petitioner maintenance @ `25,000/-

per month, no reasoning has been given by the learned Family Court as to

why the said amount must be given from the date of the order and not from

the date when the application was filed by her. Contrary to the submission

made by the learned counsel for the respondent, no evidence has come on

record to demonstrate that the appellant / petitioner was employed during the

pendency of the application under Section 24 of the Hindu Marriage Act,

1955 or the facts and circumstances of this case are such, that the maintenance

needs to be granted from the date of the order.

23. Accordingly, the Review Petition is allowed. The order dated February

27, 2017 is reviewed and resultantly, the order dated October 05, 2016 is

revived. In other words, the amount determined under Section 24 of the

Hindu Marriage Act is held to be payable by the respondent to the appellant /

petitioner as per the order dated May 02, 2016 from the date of moving the

application, w.e.f April, 2014. Review Petition is disposed of.

V. KAMESWAR RAO, J

HIMA KOHLI, J

SEPTEMBER 20, 2018/jg