Neha Agrawal @ Neha Khemka vs Sumit Agrawal
2025 Latest Caselaw 2629 Patna

Patna High Court

Neha Agrawal @ Neha Khemka vs Sumit Agrawal on 22 May, 2025

Author: Arun Kumar Jha

Bench: Arun Kumar Jha

    IN THE HIGH COURT OF JUDICATURE AT PATNA
       CIVIL MISCELLANEOUS JURISDICTION No.451 of 2019
======================================================
Neha Agrawal @ Neha Khemka wife of Sumit Agrawal, Daughter of Arun
Kumar Khemka, Currently Residing at 32, Baranashi Ghosh Street, P.S.-
Girish Park, District- Kolkata, West Bengal, PIn- 700007

                                                         ... ... Petitioner/s
                                 Versus
Sumit Agrawal Son of Late Ashok Agrawal, Resident of 202-203, Amba
Residency, East Boring Canal Road, P.S.- Buddha Colony, Patna.

                                          ... ... Respondent/s
======================================================
Appearance :
For the Petitioner/s   :      Mr.Neha Agrawal (In Person)
For the Respondent/s   :      Mr.Ranjeet Kumar, Advocate
======================================================
   CORAM: HONOURABLE MR. JUSTICE ARUN KUMAR JHA
                     CAV JUDGMENT
 Date : 22-05-2025

             The present civil miscellaneous petition has been filed

 seeking the following reliefs:-

                   "(I) For modifying the order dated
                   26.05.2018

passed by learned Additional Principal Judge, Family Court, Patna in Matrimonial Case No. 1044 of 2016 to the extent it grants ad-interim pendente lite alimony and litigation cost to the petitioner.

(II) For quashing the order dated 05.11.2018 passed by the learned Additional Principal Judge, Family Court, Patna in the aforesaid matrimonial case whereby and whereunder the learned trial court has rejected the application filed by the petitioner under Section 151 of the Code of Civil Procedure filed for reviewing the Order dated 26.05.2018."

02. Briefly stated, facts of the case, as it appears from

the record, are that the respondent has filed a Matrimonial Patna High Court C.Misc. No.451 of 2019 dt.22-05-2025

(Divorce) Case No. 1044 of 2016 under Section 27 of the

Special Marriage Act, 1954 before the Family Court at Patna

seeking dissolution of his marriage with the petitioner. The

petition for dissolution of marriage was filed on the ground of

desertion and cruelty. The opposite party/petitioner appeared

and filed a written statement denying the claim of the

petitioner/respondent. During pendency of the petition for

dissolution of marriage, the petitioner filed an application dated

22.09.2017 under Section 36 of the Special Marriage Act

seeking direction to the respondent to pay a sum of

Rs.3,50,000/- per month as interim maintenance and

Rs.1,50,000/- as litigation cost to the petitioner. The respondent

opposed the contention of the petitioner by filing rejoinder to

the applications. The learned Additional District Judge, Family

Court, Patna vide order dated 26.05.2018 on the application

dated 22.09.2017 allowed interim maintenance amount of

Rs.50,000/- per month to the petitioner and also directed the

respondent to pay Rs.50,000/- to the petitioner as litigation cost.

The petitioner filed an application dated 23.07.2018 under

Section 151 of the Code of Civil Procedure (hereinafter "the

Code") for calling the income tax return of the respondent

starting from the year 2014-15 and also seeking the Patna High Court C.Misc. No.451 of 2019 dt.22-05-2025

enhancement of the alimony pendente lite from the date of

application. The petition filed under Section 151 of the Code

was rejected by the learned Additional District Judge, Family

Court, Patna vide order dated 05.11.2018 holding that the

consideration of the application at the stage was not proper and

when the matter would be fixed for evidence and the parties

were able to bring evidence on this point, the petitioner could

move appropriate application which would be considered on its

merits. Being aggrieved by these two orders of the learned

Additional District Judge, Family Court, Patna, the petitioner

has preferred the instant civil miscellaneous petition.

03. The petitioner who appeared in person submitted

at the outset that the order of the learned trial court is improper,

illegal and passed without application of judicial mind. The

petitioner further assailed the orders on the ground that the

learned trial court has not considered the material available

before it and misconstrued the documents. Learned trial court

failed to appreciate that respondent has been earning an amount

of Rs. 1.64 crore per annum as shown in his income tax return

for financial year 2014-15 and the learned trial court went on to

grant interim maintenance to the tune of Rs. 50,000/- which is

grossly insufficient and is not fair. The learned trial court also Patna High Court C.Misc. No.451 of 2019 dt.22-05-2025

failed to appreciate the fact that in a matrimonial proceeding,

the burden of proof of income is on the husband in the light of

Section 106 of the Evidence Act as the income is especially

within the knowledge of the husband and if the husband fails to

prove the same, then an adverse inference should have been

drawn against him. If the husband did not produce any

document to revert the claim of the wife regarding the income,

than preponderance of the probabilities would lie in the favour

of the wife considering the income of the husband. Thus, the

learned trial court ought to have awarded maintenance to the

petitioner in terms of the income claimed by the petitioner and

not on the income admitted by the respondent. The petitioner is

also entitled to receive traveling expenses in terms of orders of

the Hon'ble Supreme Court in Transfer Petition(s) (Civil) No.(s)

000943 of 2017. The maintenance amount is so meager that it

would not even remotely help the petitioner to meet her day to

day needs and the litigation cost and would not help the

petitioner to contest the present case effectively but the learned

trial court did not consider these facts at all. Petitioner further

submitted that she, being a destitute and dependent on her

parents to fulfill her day to day needs, has made out a case to

receive her claimed maintenance amount from the Patna High Court C.Misc. No.451 of 2019 dt.22-05-2025

husband/respondent. The petitioner further submitted that the

learned trial court has not considered the fact that respondent

has furnished wrong information in his divorce petition. The

learned trial court also failed to take the fact into consideration

that the respondent failed to produce his income tax return to

substantiate his claim and the respondent also refused to file

affidavit in support of his income. The learned trial court has

also failed to take into consideration the credit card statement of

the respondent which shows the annual income of the

respondent is much higher than Rs.30 lakh. All these facts were

not considered by the learned trial court. The income of the

respondent was at much higher side prior to his marriage and it

appears it drastically fell down within a year of his marriage but

this fact was not considered by the learned trial court while

considering the prayer for interim maintenance. The learned trial

court ought to have called for the income tax return of the

respondent from the year 2014-15 onwards but it did not call for

the income tax returns and thus has passed orders without

having sufficient material before it. The petitioner further

submitted that the principles laid down in the recent case of

Rajnesh Vs. Neha & Anr. reported in 2021 2 SCC 324 needs to

be considered by this court. The petitioner next submitted that Patna High Court C.Misc. No.451 of 2019 dt.22-05-2025

since the impugned orders are not based on any substantive

material, the impugned orders could not be sustained.

04. Learned counsel for the respondent submitted that

there is no infirmity in the impugned orders and the present civil

miscellaneous petition is entirely misconceived. The learned

counsel for the respondent further submitted that the marriage

has been solemnized on 07.11.2014 and within two years of the

marriage, on 13.09.2016 the respondent was forced to file his

application for dissolution of marriage vide Matrimonial Case

No. 1044 of 2016. Learned counsel further submitted that

pursuant to the order dated 26.05.2018 the respondent has been

making payment of interim maintenance amount of Rs.50,000/-

per month to the petitioner. Apart from that, the respondent has

also been making payment of Rs.20,000/- per month to the

petitioner under a proceeding under Section 125 of the Cr.P.C.

and Rs. 30,000/- per month in a proceeding under Protection of

Women from Domestic Violence Act, 2005. In this manner, the

petitioner has been getting an amount of Rs. 1 lakh per month

from this respondent. The petitioner is herself a qualified lady

with professional education and she can take care of herself. The

petitioner should not be allowed to extort money from the

respondent and only one maintenance amount ought to be paid Patna High Court C.Misc. No.451 of 2019 dt.22-05-2025

to the petitioner. The petitioner, by all means, wants to extract

money from the respondent. Earlier the petitioner was engaged

to marry with some other person and she continued the litigation

with the said person even after solemnizing marriage with this

petitioner and ended the litigation after handsome settlement.

Learned counsel further submitted that from bare

perusal of the impugned orders it would be apparent that there is

no infirmity in the said orders. The learned trial court, on the

basis of the material available on record, awarded the interim

maintenance amount of Rs.50,000/- to the petitioner and this

Court under Article 227 of the Constitution of India is not

supposed to go into the appreciation of facts. There is no excess

of jurisdiction in passing the impugned orders by the learned

trial court which was competent to pass the orders challenged

before this Court. So no ground is made out for interference in

the impugned order. The learned counsel further submitted that

pursuant to the orders of the Hon'ble Division Bench in L.P.A.

No. 490 of 2024 dated 29.11.2024 the respondent has filed

income tax returns from the financial year 2015-2016 till date.

The learned counsel further submitted that the learned Division

Bench has further ordered for expeditious disposal of the

matrimonial case by directing the parties to produce their Patna High Court C.Misc. No.451 of 2019 dt.22-05-2025

witnesses in time bound manner but the petitioner is not

allowing the matrimonial case to be disposed of. The learned

counsel further submitted that the marriage between the parties

is irretrievably broken down and for this reason expeditious

disposal of the matrimonial case is in the interest of both the

parties.

Learned counsel referred to the decision of the

Hon'ble Supreme Court in the case of N. Anantha Reddy vs

Anshu Kathuria reported in 2013 (15) SCC 534 to stress that

review of the impugned order is not permissible by this Court as

the jurisdiction is extremely limited and unless there is mistake

apparent on the face of the record, the order should not be

reviewed. Review cannot be an appeal in disguise. On similar

proposition, the learned counsel referred to another decision of

the Hon'ble Supreme Court in the case of Parsion Devi and

Ors. Vs. Sumitri Devi and Ors. reported in (1997)8 SCC 715.

Thus, learned counsel submitted that the impugned orders are

proper and correct and hence the same should not be interfered

with by this Court in a proceeding under Article 227 of the

Constitution of India.

05. I have given my thoughtful consideration to the

rival submission of the parties and perused the record. Patna High Court C.Misc. No.451 of 2019 dt.22-05-2025

06. The short issue involved in the present lis is

whether the learned trial court committed any error of

jurisdiction in passing the impugned orders dated 26.05.2018

and 05.11.2018.

The main grievance of the petitioner as is reflected

from the voluminous pleadings brought on record by the

petitioner and also in response by the other side could not

obscure the fact that the dispute lies within a narrow compass

and the quantum of interim maintenance allowed by the learned

Additional District Judge, Family Court, Patna in Matrimonial

Case No. 1044 of 2016 is under challenge.

07. The power and jurisdiction under Article 227 has

been conferred on this Court for superintendence over all courts,

tribunals throughout its territory and the said power is to keep

the courts and tribunals within their bounds and to see that they

do not exceed their jurisdiction and this power is to be used very

sparingly and in order to promote the cause of justice and not to

thwart the same. Under its superintendence power, this Court

would not look into the disputed question of facts or re-

appreciate the facts to arrive at a different finding than the trial

court. Even the mere erroneous orders are not to be interfered

with in its supervisory jurisdiction under Article 227 of the Patna High Court C.Misc. No.451 of 2019 dt.22-05-2025

Constitution.

The power of jurisdiction of this Court under Article

227 has been discussed time and again by the Hon'ble Supreme

Court. In the case of Surya Dev Rai vs. Ram Chander Rai

reported in (2003) 6 SCC 675, the Hon'ble Supreme Court held

that supervisory jurisdiction under Article 227 of the

Constitution is exercised for keeping the subordinate courts

within the bounds of their jurisdiction. When a subordinate

court has assumed a jurisdiction which it does not have or has

failed to exercise a jurisdiction which it does have or the

jurisdiction though available is being exercised by the court in a

manner not permitted by law and failure of justice or grave

injustice has occasioned thereby, the High Court may step in to

exercise its supervisory jurisdiction.

08. The Hon'ble Supreme Court in the case of Jai

Singh & Ors. Vs. M.C.D. & Anr. reported in (2010) 9 SCC 385

observed that the High Courts cannot act like "bull in China

shop" and the exercise of jurisdiction must be within the well

recognized constraints. Unless there is some perversity apparent

on face of record or there is any error of jurisdiction requiring

any interference by this Court, this Court would be most

reluctant to interfere with any interlocutory order passed by the Patna High Court C.Misc. No.451 of 2019 dt.22-05-2025

learned trial court.

09. The Hon'ble Supreme Court in the case of

Sadhana Lodh vs. National Insurance Company Ltd. & Anr.

reported in AIR 2003 SC 1561 has held clearly held as follows:-

"The supervisory jurisdiction conferred on the High Courts under Article 227 of the Constitution is confined only to see whether an inferior court or Tribunal has proceeded within its parameters and not to correct an error apparent on the face of the record, much less of an error of law. In exercising the supervisory power under Article 227 of the Constitution, the High Court does not act as an Appellate Court or the Tribunal. It is also not permissible to a High Court on a petition filed under Article 227 of the Constitution to review or re-weigh the evidence upon which the inferior court or Tribunal purports to have passed the order or to correct errors of law in the decision."

10. The Hon'ble Supreme Court in the case of

Municpal Corporation of Greater Mumbai and Ors. vs. Vivek

V. Gawde reported in 2024 SCC OnLine SC3722 has held in

para 16 quoting para 85 and 86 of the case of Rajendra Diwan

Vs. Pradeep Kumar Ranibala reported in (2019) 20 SCC 143

as follows:

" 16. ...."85. The power of superintendence conferred by Article 227 is, however, supervisory and not appellate. It is settled law that this power of judicial superintendence must be exercised sparingly, to keep subordinate courts and tribunals within the limits of their authority. When a Tribunal has acted within its jurisdiction, the Patna High Court C.Misc. No.451 of 2019 dt.22-05-2025

High Court does not interfere in exercise of its extraordinary writ jurisdiction unless there is grave miscarriage of justice or flagrant violation of law. Jurisdiction under Article 227 cannot be exercised 'in the cloak of an appeal in disguise'.

86. In exercise of its extraordinary power of superintendence and/or judicial review under Articles 226 and 227 of the Constitution of India, the High Courts restrict interference to cases of patent error of law which go to the root of the decision; perversity; arbitrariness and/or unreasonableness; violation of principles of natural justice, lack of jurisdiction and usurpation of powers. The High Court does not re-assess or re-analyse the evidence and/or materials on record....The writ jurisdiction of the High Court cannot be converted into an alternative appellate forum, just because there is no other provision of appeal in the eye of the law."

(emphasis supplied)

11. Thus, in this background of legal position, the

matter needs to be examined. Perusal of the impugned orders

show the learned trial court proceeded on the basis of material

before it and has specifically noted that neither of the parties

produced the documents in their support and vide order dated

26.05.2018 the learned trial court allowed the interim

maintenance amount of Rs.50,000/- on the basis of admitted

income of the respondent stated to be Rs. 30 lakh per annum

and Rs. 50,000/- as litigation cost to the petitioner. If the

petitioner failed to produce documents in support of her

contention, she cannot fault the order of the learned trial court

for not allowing her interim maintenance amount to the tune of Patna High Court C.Misc. No.451 of 2019 dt.22-05-2025

Rs.3,50,000/- per month and Rs.15,00,000/- as litigation cost.

So far as order dated 05.11.2018 is concerned, the said order has

been passed on prayer of the petitioner seeking direction by the

learned trial court to the respondent to produce his income tax

returns for the year 2014-15 and enhance the amount of interim

maintenance. The learned trial court has noted this fact that

during the hearing of petition filed by the petitioner seeking

interim maintenance, no such prayer was made. The learned trial

court has further noted that if such applications are entertained

at the stage when the matter was pending for settlement of

issues, the trial would unduly get hampered. The learned trial

court has further observed that when the matter reaches at the

stage of evidence and the petitioner seeks production of income

tax return of the respondent, the Court would pass appropriate

orders and at that time, the petitioner would be at liberty to

move appropriate application.

12. Admittedly, the petitioner has been allowed

interim maintenance of Rs. 50,000/- per month by the Court of

Additional Principal Judge in Matrimonial Case No. 1044 of

2016, Rs. 20,000 as interim maintenance amount by the Court

of learned Family Court, Calcutta under a proceeding under

Section 125 of the Cr.P.C. and Rs.30,000/- per month in a Patna High Court C.Misc. No.451 of 2019 dt.22-05-2025

proceeding under Protection of Women from Domestic Violence

Act, 2005. Thus, the petitioner has been granted interim

maintenance amount of Rs. 1 lakh per month by different Court.

13. The Hon'ble Supreme Court in the case of

Rajnesh (supra), considering the claim of maintenance under

different statutes, held as under:-

"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 Cr.P.C., 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."

Therefore it is incumbent upon the Court which is

passing the subsequent order to take into consideration any sort

of maintenance allowed by the Court previously and it is also

the duty of the parties to bring to the notice of such Courts the

orders passed previously.

Patna High Court C.Misc. No.451 of 2019 dt.22-05-2025

14. I do not find any infirmity even in the order dated

05.11.2018 as reasoning adopted by the learned trial court is

proper and justified. Perusal of the impugned orders do no show

any perversity so as to require interference by this Court.

15. So far as, the judgments cited by the learned

counsel for the respondent are concerned, they are not relevant

for the purpose of disposal of the present petition as they pertain

to review of orders by the Court and are not concerned with the

jurisdictional powers of this Court under Article 227.

16. Since by order of Coordinate Bench of this Court

as well as the Hon'ble L.P.A. Bench, the income tax returns

from the Financial Year 2015-16 onwards have already been

brought on record, it would be proper to direct the petitioner to

approach the learned trial court seeking modification in the

order granting interim maintenance to the petitioner as under

Article 227 of the Constitution of India, this Court would not

enter into the disputed questions of facts and fix the quantum of

maintenance or change it or modify it.

17. In the light of the aforesaid discussion, I am of the

considered opinion that the impugned orders need no

interference by this Court and the said impugned orders dated

26.05.2018 and 05.11.2018 are affirmed.

Patna High Court C.Misc. No.451 of 2019 dt.22-05-2025

18. However, if the petitioner moves before the

learned trial court seeking modification in the order dated

26.05.2018 in the light of the documents brought before this

Court by the parties, the learned trial court would duly consider

the submission of the parties and pass appropriate orders strictly

in accordance with law. At the same time, the learned trial court

is directed to take note of the order dated 29.11.2024 by the

Hon'ble Division Bench in L.P.A. No. 490 of 2024 and try to

dispose of the Matrimonial Case No. 1044 of 2016 at the earliest

and any party obstructing the disposal would be dealt by the

learned trial court with stern hand.

19. Accordingly, the present petition stands dismissed.

20. Interlocutory Application, if any, stands disposed

of.

(Arun Kumar Jha, J) Anuradha/-

AFR/NAFR                NAFR
CAV DATE                18.03.2025
Uploading Date          23.05.2025
Transmission Date       N/A