Orissa High Court
Ananya Routray vs Dr. Nihar Ranjan Ray ... Opposite Party on 15 May, 2025
Author: G. Satapathy
Bench: G. Satapathy
IN THE HIGH COURT OF ORISSA AT CUTTACK
W.P.(C) No.31902 of 2024
(An application under Articles 226 & 227 of the
Constitution of India)
Ananya Routray ... Petitioner
-versus-
Dr. Nihar Ranjan Ray ... Opposite Party
For Petitioner : Mr. A.K. Mohanty,
Advocate
For Opposite Party : Mr. S. Dash, Advocate
CORAM:
HON'BLE MR. JUSTICE G. SATAPATHY
DATE OF HEARING :28.02.2025
DATE OF JUDGMENT:15.05.2025
G. Satapathy, J.
1. By means of this writ petition, the
petitioner-wife has invoked the extraordinary
jurisdiction of this Court under Articles 226 & 227 of
Constitution of India praying to quash the order dated
28.11.2024 passed by learned Judge, Family Court,
Cuttack in CMA No.1 of 2023 rejecting the claim of the
petitioner-wife for pendente lite maintenance and
litigation expenses in an application under Section 24 of
the Hindu Marriage Act, 1955 (in short, "the Act").
2. The undisputed facts in the present
litigation are that the petitioner and OP are admittedly
wife and husband and their marriage was solemnized
on 24.06.2010 and the opposite party was working as
Surveillance Medical Officer in World Health
Organization (WHO) at the relevant time of marriage
and both of them had stayed together as husband and
wife for some period and a girl child was born out of
their wedlock, but later on, when dissension arose
between them, they started living separately leading to
filing of many litigations against each other and one of
such litigation is in the present case for divorce under
Section 13 of Hindu Marriage Act in which the
petitioner-wife unsuccessfully approached the learned
trial Court for pendente lite maintenance and litigation
expenses which ultimately travelled to this Court.
3. In assailing the impugned order, Mr. Amiya
Kumar Mohanty, learned counsel for the petitioner has
submitted that the learned trial Court has erred in law
by rejecting the application of the petitioner-wife for
grant of pendente lite maintenance and litigation
expenses by erroneously observing that since the
petitioner and her daughter are getting ad interim
maintenance in IA No.52 of 2021 arising out of CP
No.468 of 2021 which is pending for adjudication, but
fact remains that the proceeding in CP No.468 of 2021
being brought under Section 18/20 of Hindu Adoption
and Maintenance Act (in short, "the HAMA") for grant of
maintenance to the petitioner and her daughter, the
same cannot be equated and considered for the interim
application filed under Section 24 of the Act in a
proceeding for divorce in CP No.340 of 2022 which is
instituted by the OP-husband against the petitioner-
wife. Mr. A.K. Mohanty, has also submitted that the
learned trial Court has further erred in not striking of
the defence/pleadings of the OP-husband for non-
compliance of filing of disclosure affidavit of assets &
liabilities within the time in terms of the law laid down
by Apex Court in Rajnesh vs. Neha and another;
(2021) 2 SCC 324, which prescribes for disclosure of
such affidavit by the respondent within a maximum
period of four weeks, but the learned trial Court
ignoring the mandate of law has allowed the opposite
party-husband in this case to file his disclosure affidavit
subsequently and refused to grant pendente lite
maintenance to the petitioner. In relying upon the
decision Rajnesh (supra), Mr. Mohanty has also
submitted that the petitioner-wife has definitely right to
claim maintenance under Section 24 of the Act and in
case, the Court is of the view that the petitioner is also
awarded with maintenance in any previously instituted
proceeding, it is under legal obligation to pass
appropriate order to grant maintenance by adjusting or
setting of the amount as directed to be paid to the
petitioner-wife in an earlier proceeding and therefore,
the impugned order being unsustainable is liable to be
set aside and the OP-husband may kindly be directed to
pay the petitioner-wife and their daughter a sum of
Rs.1,20,000/- per month as pendente lite maintenance
and a sum of Rs.20,000/- per month as litigation
expenses to the petitioner-wife.
In reply, Mr. Suryakant Dash, learned
counsel for OP while controverting the claim of the
petitioner has vehemently argued and submitted that
not only the petitioner and her daughter are getting
monthly maintenance of Rs.30,000/- from the OP, but
also has sought for relief under Section 12 of the
Protection of Women from Domestic Violence Act, 2005
(in short, "the PWDVAct") which include monetary relief
of maintenance and, therefore, the petitioner-wife is
not entitled to any pendente lite maintenance in the
present proceeding. He accordingly has prayed to
dismiss the writ Petition.
4. After having considered the rival
submissions upon perusal of record, it appears that the
parties in this case are in chronic matrimonial dispute
and both of them have instituted different proceedings
against each other and in some of the cases, the
litigation has travelled to this Court. Besides the
present case, which arises out of a divorce proceeding,
the petitioner-wife has admittedly filed two other
proceedings, out of which one in CP No.468 of 2021 is a
proceeding under Sections 18 and 20 of the HAMA for
grant of maintenance in which the petitioner has filed
an application for grant of interim maintenance in IA
No.52 of 2021, which was admittedly disposed of by
the learned trial Court granting interim maintenance to
the petitioner and her daughter for a sum of
Rs.35,000/- (Rs.25,000/- to petitioner and Rs.10,000/-
to the daughter), which was of course assailed by the
OP in W.P.(C) No.3864 of 2022 and this Court by an
order passed on 08.02.2023 confirmed the interim
maintenance of the daughter @ Rs.3000/- per month
and Rs.7,000/- per month as study expenses (total
Rs.10,000/-) while remitting the matter back to the
learned trial Court for fresh adjudication to decide the
quantum of interim maintenance to the petitioner-wife
and further directed to pay Rs.15,000/- per month to
the petitioner-wife till disposal of IA No.52 of 2021 as
interim arrangement. It is in fact not disputed that the
petitioner has also approached this Court in W.P.(C)
No.41413 of 2021 for enhancement of interim
maintenance as granted to her and her daughter in I.A.
No.52 2021 by the learned trial Court, but the said writ
petition was disposed of by this Court on 08.02.2023 by
reiterating the fact that the matter has already remitted
for fresh disposal in W.P.(C) No.3864 of 2022 with
regard to decide the quantum of maintenance to the
petitioner. However, the petitioner has admitted in the
writ petition that IA No.52 of 2021 arising out of CP
No.468 of 2021 has already been disposed of by the
learned trial Court quantifying the quantum of interim
maintenance to the petitioner @ Rs.20,000/- per month
and thereby, the total interim maintenance as
quantified to the petitioner and her daughter is
Rs.30,000/-.
5. The plea of petitioner is for grant of
pendente lite maintenance and litigation expenses in
the present proceeding in CMA No.01 of 2023 is over
and above the amount granted in IA No.52 of 2021
arising out of CP No.468 of 2021 and in support of such
claim, the petitioner has also relied upon the decision in
Rajnesh (supra), wherein the Apex Court at
paragraph Nos.60 & 61 has observed as under:-
"60. It is well settled that a wife can make a
claim for maintenance under different
statutes. For instance, there is no bar to seek
maintenance both under the D.V. Act and
Section 125 of the Code of Criminal
Procedure, or under H.M.A. It would,
however, be inequitable to direct the
husband to pay maintenance under each
of the proceedings, independent of the
relief granted in a previous proceeding. If
maintenance is awarded to the wife in a
previously instituted proceeding, she is under
a legal obligation to disclose the same in a
subsequent proceeding for maintenance,
which may be filed under another enactment.
While deciding the quantum of
maintenance in the subsequent
proceeding, the civil court/family court
shall take into account the maintenance
awarded in any previously instituted
proceeding, and determine the
maintenance payable to the claimant.
61. To overcome the issue of overlapping
jurisdiction, and avoid conflicting orders being
passed in different proceedings, we direct that
in a subsequent maintenance proceeding, the
Applicant shall disclose the previous
maintenance proceeding, and the orders
passed therein, so that the Court would take
into consideration the maintenance already
awarded in the previous proceeding, and
grant an adjustment or set-off of the said
amount. If the order passed in the
previous proceeding requires any
modification or variation, the party would
be required to move the concerned court
in the previous proceeding."
A careful reference to the observation of
the Apex Court as stated above, it appears that the
Apex Court is also quite conscious of the fact that
husband cannot be directed to pay maintenance under
each of the proceedings independent of the relief
granted in a previous proceeding which is apparent
from observation that it would be, however, inequitable
to direct the husband to pay maintenance under each
of the proceedings. At this stage, this Court considers it
appropriate to refer to the provision of Section 24 of
the Act which is couched in very plain language that
where in a proceeding under this Act, it appears to the
Court that either the wife or the husband, as the case
may be, has no independent income sufficient for
her or his support and the necessary expenses of
the proceeding, it may, on the application of the wife
or the husband order the respondent to pay the
petitioner the expenses of the proceeding and
monthly during the proceeding such as, having regard
to the petitioner's own income and the income of
the respondent, it may seems to the Court to be
reasonable xxx xxx xxx xxx.
It, therefore, very clear that the word
"pendente lite" used in this section itself refers to the
pendency of the proceeding and the grant of financial
support for sustenance of the party who has no
independent income sufficient for her support, but the
grant of pendente lite maintenance has to be
considered in the light of aforesaid to keywords as used
in the section. In this regard, this Court is also alived
with the principle as laid down in Manish Jain Vs.
Akanksha Jain; (2017) 15 SCC 801, wherein at
paragraph-15 and 16 the Apex Court has held as
under:-
"15. Section 24 of the HM Act empowers the
Court in any proceeding under the Act, if it
appears to the Court that either the wife or
the husband, as the case may be, has no
independent income sufficient for her or
his support and the necessary expenses
of the proceeding, it may, on the application
of any one of them order the other party to
pay to the petitioner the expenses of the
proceeding and monthly maintenance as may
seem to be reasonable during the proceeding,
having regard to also the income of both the
applicant and the respondent. Heading
of Section 24 of the Act is "Maintenance
pendente lite and expenses of
proceedings". The Section, however, does
not use the word "maintenance"; but the
word "support" can be interpreted to
mean as Section 24 is intended to provide for
maintenance pendente lite.
16. An order for maintenance pendente lite
or for costs of the proceedings is conditional
on the circumstance that the wife or
husband who makes a claim for the same has
no independent income sufficient for her
or his support or to meet the necessary
expenses of the proceeding. It is no answer
to a claim of maintenance that the wife is
educated and could support herself. Likewise,
the financial position of the wife's parents is
also immaterial. The Court must take into
consideration the status of the parties and the
capacity of the spouse to pay
maintenance and whether the applicant
has any independent income sufficient for
her or his support. Maintenance is always
dependent upon factual situation; the Court
should, therefore, mould the claim for
maintenance determining the quantum based
on various factors brought before the Court."
6. This Court, however, noted the submission
made for the petitioner for non-disposal of the
proceeding Under Section 24 of the Act within 60 days
as stated in the proviso to Section 24 of the Act, but
the word used therein "as far as possible" makes it
clear that endeavors should be made to dispose of the
application of the parties Under Section 24 of the Act as
expeditiously as possible, but the opposite party cannot
be penalized merely because the said proceeding has
been disposed of after 60 days, however, discretion is
with the Court if the parties neglects without sufficient
cause or plays dilatory tactics from disposing such
proceeding can proceed in the manner by striking out
defence or imposing costs to the party guilty of
negligence or any other mode permissible under law.
Be that as it may, in this case, it is not disputed that
the petitioner is getting Rs.20,000/- per month as
interim maintenance in CP No.468 of 2021 and her
daughter is getting Rs.3,000/- per month as
maintenance & Rs.7,000/- per month as study
expenses, which are sufficient in the present context of
the litigation between the parties. It is no doubt true
that in case the Court feels that the amount as ordered
in the earlier proceeding is not sufficient, it can grant
some more in another proceeding by adjusting or
taking into consideration the maintenance as granted in
the previous proceeding, but the grant of pendente lite
maintenance in Section 24 of the Act is based on the
principle of grant of such maintenance for the
sustenance of the party and for litigation expenses.
Further, it is relevant that the petitioner has not only
litigating with the OP in the present proceeding, but
also she has filed independent proceedings in CP
No.468 of 2021 and proceeding under DV Act and has
also approached this Court in different proceedings and,
therefore, the interim maintenance as granted in CP
No.468 of 2021 can be considered to be sufficient for
the sustenance of the petitioner and her daughter.
However, this Court considers that since the petitioner
was not aware of the present proceeding in CP No.340
of 2022 which is a proceeding instituted by OP, the
petitioner deserves some litigation expenses in terms of
the provision of Section 24 of the Act. It is no doubt
true that the petitioner has claimed litigation expenses
on monthly basis, but the litigation has already
travelled around three years in the meanwhile and
since the petitioner has approached this Court in many
proceedings, some litigation expenses should be
granted to her on lump sum.
7. The petitioner has of course relied upon the
decision in Partha Sakha Maity vs. Bijali Maity;
(2024) SCC Online, Calcutta 4389 to direct the
opposite party to pay monthly litigation expenses, but
Section 24 of the Act makes it very clear that the grant
of litigation expenses either of the spouse is within the
discretion of the Court. This Court firmly believes that
the grant of pendente lite maintenance and litigation
expenses would depend on the facts and circumstances
of individual case and it is not obligatory on the part of
the Court to grant monthly litigation expenses. It is of
course observed by the Calcutta High Court that it
would be reasonable to grant litigation expenses on
monthly basis, but the same is not binding on this
Court, rather it has got some persuasive value. Looking
at the claim as advanced by the petitioner and taking
into consideration the facts involved in this case, this
Court considers that a sum of Rs.25,000/- to the
petitioner for litigation expense would meet the ends of
justice. Accordingly, the petitioner is required to pay
only Rs.25,000/- towards lump sum litigation expenses,
but this Court, however, confirms the order passed by
the learned trial Court in rejecting the claim for grant of
pendente lite maintenance in view of the fact that the
petitioner and her daughter are being ordered to be
paid for a sum of Rs.30,000/- in toto towards interim
maintenance in CP No.468 of 2021.
8. In the result, the writ petition stands
allowed to the extent of paying of litigation expenses of
Rs.25,000/- which shall be payable within one week of
re-opening of the Court after vacation. Consequently,
the impugned order rejecting the claim for pendente
lite maintenance to the petitioner stands confirmed.
(G. SATAPATHY)
JUDGE
Orissa High Court, Cuttack,
Dated the 15th of May, 2025/Jayakrushna
Location: High Court of Orissa, Cuttack
