Delhi High Court
Pallavi Deva & Anr vs Vinay Saxena on 10 May, 2023
2023:DHC:3271-DB
$~5
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment delivered on: 10.05.2023
+ MAT APP. (F.C.) 157/2019
PALLAVI DEVA & ANR. .... APPELLANT
versus
VIJAY SAXENA ..... RESPONDENT
Advocates who appeared in this case:
For the Appellant: Mr. Sonal Sinha, Advocate.
For the Respondent: Rajeev Saxena, Advocate.
CORAM:-
HON'BLE MR JUSTICE SANJEEV SACHDEVA
HON'BLE MR. JUSTICE MANOJ JAIN
JUDGMENT
SANJEEV SACHDEVA, J. (ORAL)
1. Appellant impugns order dated 24.04.2019, whereby the Family
Court has directed that an amount of Rs.1,60,000/- received by the
appellant, pursuant to the settlement dated 03.12.2016, be adjusted.
2. Learned counsel for the appellant submits that said amount
could not have been adjusted as the amount was for a period prior to
Signature Not Verified
Digitally Signed
By:RASHIM KAPOOR
Signing Date:12.05.2023
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the date of filing of the application seeking maintenance. He further
submits that said amount was towards the maintenance of the child
and could not have thus been adjusted on account of any alleged
conduct/misconduct of the appellant.
3. Learned counsel further submits that the Family Court has erred
in not awarding interim maintenance from the date of the application
i.e., 31.01.2018 and has erred in granting the same from the date of
the order i.e., 16.08.2018.
4. Learned counsel appearing for the respondent submits that the
Family Court has correctly adjusted the amount of Rs. 1,60,000/- for
the reason that the there was a holistic settlement between the parties,
whereunder the respondent had agreed to pay the said amount as
maintenance and the parties had agreed to obtain divorce by mutual
consent. He submits that since appellant breached the terms of the
settlement, she was disentitled to the said amount and consequently,
the same was liable to be adjusted and has correctly been adjusted by
the Family Court.
5. We are unable to accept the contention of the learned counsel
for the respondent. Settlement agreement dated 03.12.2016, though
records that parties have agreed to dissolution of marriage by mutual
consent, however, with regard to the payment of maintenance it
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Digitally Signed
By:RASHIM KAPOOR
Signing Date:12.05.2023
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records that the respondent had agreed to deposit a sum of Rs.40,000/-
per month in the account of the appellant as maintenance for the child
with effect from December, 2016 till he attains the age of 25 years.
6. It is not in dispute that the child is a special needs child. The
amount of maintenance that was agreed to be paid was with regard to
the maintenance of the child.
7. Pursuant to the said settlement, respondent paid an amount of
Rs.1,60,000/- which was sent alongwith a legal notice dated
25.03.2017. Said legal notice sent by the advocate of the Respondent
also reiterated that the said amount of Rs.1,60,000/- was being paid
towards the maintenance for the child with effect from December,
2016 till March, 2017.
8. Since the agreement between the parties was that the amount
shall be paid towards the maintenance of the child and the amount was
also tendered towards maintenance of the child for the period from
December, 2016 till March, 2017, there was no reason for the Family
Court to adjust the said amount on account of any alleged
conduct/misconduct of the appellant.
9. The amount having been paid towards maintenance of the child
also could not have been adjusted towards a future claim of
maintenance of the child.
Signature Not Verified
Digitally Signed
By:RASHIM KAPOOR
Signing Date:12.05.2023
11:37:19
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10. Appellant had filed a petition on 31.01.2018 under Section 125
of the Code of Criminal Procedure Code, seeking maintenance for
herself and the child.
11. On the said petition, an interim order was passed on
16.08.2018, directing payment of interim maintenance of Rs.25,000/-
for the child, which was subsequently enhanced to Rs.30,000/- on
05.08.2022.
12. Said order dated 16.08.2018 granted interim maintenance to the
appellant from the date of passing of the order and subsequently, the
enhancement to Rs.30,000/- on 05.08.2022 was also from the date of
the order dated 16.08.2018.
13. There is no reason apparent from the order dated 16.08.2018 as
to why the maintenance has been awarded only from the date of the
order and not from the date of the application.
14. Since the child is a special need child, we are of the view that it
is a fit case where powers should be exercised under Order XLI Rule
33 Code of Civil Procedure to award interim maintenance at the rate
fixed the Family Court i.e., Rs.30,000/- per month with effect from
the date of the application i.e., 31.01.2018.
15. In view of the above, the appeal is allowed. The impugned
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Digitally Signed
By:RASHIM KAPOOR
Signing Date:12.05.2023
11:37:19
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order dated 24.04.2019 is set aside and consequently, it is held that the
respondent is held not entitled to adjust the said amount of
Rs.1,60,000/-. Respondent is also directed to pay interim maintenance
at the rate of Rs.30,000/- per month with effect from 31.01.2018 till
16.08.2018.
16. It is clarified that this order would be without prejudice to the
prayer of the appellant seeking maintenance at a higher amount which
is still pending consideration before the Family Court and the defence
thereto of the respondent.
17. Appeal is allowed in the above terms.
18. Dasti under signature of the Court Master.
SANJEEV SACHDEVA, J
MAY 10, 2023 MANOJ JAIN, J
NA
Signature Not Verified
Digitally Signed
By:RASHIM KAPOOR
Signing Date:12.05.2023
11:37:19
