Vill.- Sripurdeor vs Kuldip Lahkar
2024 Latest Caselaw 3006 Gua

Gauhati High Court

Vill.- Sripurdeor vs Kuldip Lahkar on 3 May, 2024

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GAHC010211042023




                       THE GAUHATI HIGH COURT
  (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

                         Case No. : I.A.(Civil)/1205/2024


         SANGITA ROY
         D/O SRI HARAKANTA ROY

         VILL.- SRIPURDEOR
         P.O.- ADALBARI
         P.S.- MUSHALPUR
         DIST.-BAKSA
         ASSAM- 781372.


          VERSUS

         KULDIP LAHKAR

         SON OF SRI CHAKRAPANI LAHKAR
         P.O. ADALBARI
         P.S.MUSHALPUR
         DISTRICT BAKSA
         ASSAM
         PIN 781372.


         ------------
         Advocate for : MR G N SAHEWALLA
         Advocate for : MR. R MAZUMDAR appearing for KULDIP LAHKAR
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                         BEFORE
          HONOURABLE MRS. JUSTICE MITALI THAKURIA
                                    ORDER

Date : 03.05.2024

Heard Mr. H. K. Sarma, learned counsel for the applicant. Also heard Mr. K. M. Hassan, learned counsel appearing on behalf of the respondent.

2. This interlocutory application has been filed under Article 226 of the Constitution of the India praying for a direction to the respondent to pay Rs. 9,000/- per month towards the maintenance to the applicant, which was directed to be paid vide order dated 09.12.2021, passed by the learned District Judge, Baksa in Misc. (J) Case No. 02/2021 in connection with T.S.(M) No. 08/2020, on the application filed by the present applicant under Section 24 of the Hindu Marriage Act claiming maintenance and cost of the proceeding.

3. It is submitted by Mr. Sarma, learned counsel for the applicant, that in the said Misc. (J) Case No. 02/2021, the learned District Judge, Baksa passed an order for payment of Rs. 9,000/-, i.e. Rs. 3,000/- towards the maintenance of the child and Rs. 6,000/- towards the maintenance of the applicant, per month. But, vide order dated 20.09.2023, passed in I.A.(Civil) No. 2838/2023, this Court had stayed the operation of judgment and decree dated 16.08.2023, passed by the learned District Judge, Baksa in T.S.(M) No. 08/2020, and after the said judgment and decree, the respondent did not pay the maintenance of Rs. 9,000/- as per order dated 09.12.2021, passed in Misc. (J) Case No. 02/2021 in connection with T.S. (M) No. 08/2020, and accordingly, the present application has been filed for a direction to the respondent to pay Rs. 9,000/-

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per month as maintenance to the applicant in pursuant to order dated 09.12.2021, passed in Misc. (J) Case No. 02/2021.

4. In this context, Mr. K. M. Hassan, learned counsel appearing on behalf of the respondent, has submitted that at the time of passing the decree of divorce, a permanent alimony to the tune of Rs. 5 Lakhs was awarded and they have already deposited the said amount, but the same has not been withdrawn by the present applicant as the order of decree has been put to challenge vide the connected appeal, being Mat. App. No. 55/2023. Further he submitted that the petition under Section 24 of the Hindu Marriage Act is maintainable only during the pendency of the suit as it is a provision by which the maintenance as well as the cost of proceeding can be awarded during the pendency of the suit. But, here in the instant case, the suit is already disposed of and the decree of divorce has been passed and the permanent alimony to the tune of Rs. 5 Lakhs has been awarded. However, there was no other order for any monthly maintenance passed by the learned District Judge, Baksa while disposing the divorce suit. Further, he submitted that the respondent is still paying Rs. 3,000/- per month as per the order passed in MR Case No. 19/2020 and the applicant has the other remedy for enhancement of the said maintenance allowance by filing an appropriate application under Section 127 Cr.P.C., but no relief or remedy can be availed by filing the present application under Article 226 of the Constitution of India, which is not at all maintainable.

5. Considering the submissions made by the learned counsels for both sides, it is seen that the applicant has filed the connected appeal, being Mat App. No. 55/2023, challenging the order dated 16.08.2023, passed by the learned District Page No.# 4/4

Judge, Baksa in T.S. (M) No. 08/2020 and by filing the connected interlocutory application, which is numbered as I.A.(Civil) No. 2838/2023, the execution of the divorce decree is also stayed vide order dated 20.02.2023. More so, from the submission made by the learned counsel for the respondent, it is seen that the respondent is still paying the maintenance in MR Case No. 19/2020 @ Rs. 3,000/- per month and it is rightly submitted by the learned counsel for the respondent that they have the option to file a petition under Section 127 Cr.P.C. for enhancement of the said maintenance allowance. However, it is seen that the petition under Section 24 of the Hindu Marriage Act is not maintainable after the disposal of the suit, though the learned District Judge, Baksa awarded an amount of Rs. 9,000/- per month towards the maintenance pendent lite.

6. In view of above, I find that the present application filed under Article 226 of the Constitution of India is not at all maintainable and hence, the same stands dismissed. However, the applicant is at liberty to file appropriate application before the learned Court below for enhancement of the monthly maintenance amount.

7. In terms of above, the present interlocutory application stands disposed of.

JUDGE

Comparing Assistant