Sri Amit Kumar Bisoi vs Mrs. Krishna Bhukta
2023 Latest Caselaw 1862 Ori

            IN THE HIGH COURT OF ORISSA AT CUTTACK
                         MATA No. 125 of 2019
            Sri Amit Kumar Bisoi             ....                 Appellant
                                                   Ms. S. Mishra, Advocate
                                 -versus-
            Mrs. Krishna Bhukta              ....             Respondent
                                              Mr. U.C. Mohanty, Advocate


                         CORAM:
                         JUSTICE S. TALAPATRA
                         JUSTICE SAVITRI RATHO
                                 ORDER

28.02.2023

Order No.

09. 1. This matter is taken up through hybrid mode.

2. Heard Ms. S. Mishra, learned counsel appearing for the Appellant and also Mr. U.C. Mohanty, learned counsel appearing for the Respondent.

3. By means of this appeal under Section 19(1) of the Family Courts Act, the Appellant (the husband) has challenged the order dated 20.08.2019 delivered in C.P. No.157 of 2019 by the Judge, Family Court, Angul. There is no dispute or controversy as regards the facts.

4. The Appellant filed one matrimonial suit seeking judicial separation under Section 10 of the Hindu Marriage Act. But subsequently, he had decided to withdraw the suit. Accordingly, an application under Order 23 Rule 1 of the CPC was filed. By the impugned order, the Appellant was allowed to withdraw the suit. During pendency of the said civil

proceeding, the Respondent herein filed one application under Section 24 of the Hindu Marriage Act, seeking maintenance pendente lite and expenses for the litigation. While disposing the said application by the same order by which the suit was allowed to be withdrawn, the Family Judge has inter alia observed as follows:

"Accordingly, the case is dismissed on being withdrawn by the petitioner. In the facts and circumstances of the case and keeping in view the respective cases of the parties, their financial status and also their standing in the society the O.P. is hereby directed to pay a monthly maintenance of Rs.5,000/- (five thousand) to the petitioner till she is alive together with Rs.1,000/- towards litigation expenses. The order of monthly maintenance shall be effective from the date of its passing i.e. today."

5. Ms. Mishra, learned counsel has stated that the said order is without jurisdiction, as under Section 24 of the Hindu Marriage Act, no court is authorized to pass any order for maintenance after the proceeding is over. Section 24 of the Hindu Marriage Act provides authority to grant maintenance during the life of the suit and not thereafter. Therefore, on the face of the record, the order passed by the Judge, Family Court is illegal and unsustainable.

6. Mr. Mohanty, learned counsel appearing for the Respondent has submitted that there is a mistake in the order dated 20.08.2019. The order of maintenance should have been

given effect from the date of filing of the suit, but in the order, it has been recorded that the said order will be effective from the date of passing of the order. So far as the order relating to the litigation expenses is concerned, that part of the order cannot be held illegal or unsustainable.

7. Having regard to the entire gamut of the facts, we are of the view that the Judge, Family Court has exceeded his jurisdiction so far as his authority as conferred by Section 24 of the Hindu Marriage Act is concerned. Under Section 24 of the Hindu Marriage Act, no spouse can be granted the maintenance allowance for the life time. As such, we have persuaded to intervene the order. Accordingly, so far as the order of payment of monthly maintenance is concerned, is set aside. However, we will not intervene with the order of litigation expenses as awarded by the impugned judgment/order.

8. Before we part with the records, we would like to record that the Appellant has already filed a civil proceeding seeking divorce.

9. Mr. Mohanty, learned counsel has apprised that the Respondent has already appeared in that proceeding. As such, the Respondent is entitled to file a fresh application under Section 24 of the Hindu Marriage Act seeking maintenance pendente lite and the litigation expenses.

10. We make it absolutely clear that, the decision as rendered by the Judge, Family Court by the impugned order will in no manner preclude the Respondent from seeking

reliefs under Section 24 of the Hindu Marriage Act in the proceeding for divorce.

11. The Appeal is, therefore, partly allowed.

12. Registry is directed to prepare the decree accordingly.

13. LCRs, if lying with the Registry, shall be returned

forthwith.

(S. Talapatra) Judge

(Savitri Ratho) Judge

Murmu