Punjab-Haryana High Court
Udaivir vs Suman on 11 March, 2022
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FAO-3236 of 2017
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
(Proceedings through V.C.)
FAO-3236 of 2017
Date of Decision: 11.03.2022
Udaivir
...Appellant
Versus
Suman
....Respondent
CORAM: HON'BLE MS. JUSTICE RITU BAHRI
HON'BLE MR. JUSTICE ASHOK KUMAR VERMA
Present:- Mr. Vivek Salathia, Advocate, for the appellant.
Mr. A.S. Likhari, Advocate, for the respondent.
ASHOK KUMAR VERMA, J.
[1] Through this appeal, the appellant-husband has laid challenge to
the order dated 28.04.2016 passed by the District Judge, Family Court,
Gurgaon, whereby his petition filed under Section 13 of the Hindu
Marriage Act, 1955 (hereinafter referred to as the 'HMA') was dismissed
on account of non-payment of maintenance to the respondent and the
order dated 15.11.2016 of the District Judge, Family Court, Gurgaon, vide
which his application for restoration of the petition under Section 13 of
the HMA has been dismissed.
[2] Brief facts of the present case are that marriage of the appellant
and the respondent was solemnised according to the Hindu rites and
ceremonies on 16.02.2010. Out of their wedlock no child was born. Due
to temperamental difference, both the parties started living separately
since 01.04.2013. Thereafter, appellant-husband filed petition under
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Section 13 of the HMA for dissolution of marriage by a decree of divorce
on 01.11.2014 wherein respondent-wife appeared and contested the
petition by filing her written statement. During the pendency of the
aforesaid proceedings, respondent-wife filed an application under Section
24 of the HMA for maintenance pendente lite and litigation expenses.
The Family Court vide order dated 22.04.2015 granted maintenance to the
respondent-wife @ `25,000/- per month from the date of the filing the
application i.e. 21.03.2015. Aggrieved against the order of the Family
Court dated 22.04.2015, appellant filed Civil Revision No.3869 of 2015
before this Court. As the appellant failed to clear the arrears of
maintenance, Family Court vide impugned order dated 28.04.2016
dismissed the petition of the appellant filed under Section 13 of the HMA.
Hence, appellant's Civil Revision was also dismissed as infructuous.
Thereafter, appellant filed application (Annexure P-5) for restoration of
his petition. During the pendency of the said application, Family Court
directed the appellant to make payment of arrears of maintenance to the
respondent-wife. The appellant by way of cheque dated 24.10.2016 paid
`2,00,000/- to the respondent-wife. However, on account of delay,
application of the appellant for restoration of the petition under Section 13
of the HMA was dismissed by the Family Court vide impugned order
dated 15.11.2016. Subsequently, appellant challenged the order dated
28.04.2016 and order dated 15.11.2016 before this Court by way of Civil
Revision No.689 of 2017, which was dismissed as withdrawn on
07.03.2017 to file the present appeal.
[3] Learned counsel for the appellant contended that impugned
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orders passed by the Family Court are illegal and not sustainable in the
eyes of law. The appellant could not pay the arrears of maintenance due
to financial hardship. The Family Court failed to appreciate the fact that
the appellant-husband had already preferred Civil Revision before this
Court challenging the grant of maintenance to the respondent-wife.
Hence, the impugned order passed by the Family Court dismissing his
petition, has virtually deprived of the appellant his right to challenge the
orders of maintenance especially when the respondent-wife was an
earning lady having reasonable resources. The Family Court has
dismissed the application of the appellant for restoration of his petition by
adopting hyper-technical approach despite the fact that the appellant had
paid the maintenance amount to the respondent-wife. In support of his
contentions, learned counsel for the appellant has placed reliance on the
judgments of the Patna High Court in Bajrang Rai and others v. Ismail
Mian and others, 1978 AIR (Patna) 339 and Tarlochan Singh and others
v. Union Bank of India and other, 2012(57) R.C.R.(Civil) 107.
[4] Per contra, learned counsel for the respondent contended that
the application filed by the appellant was barred by limitation. Therefore,
present appeal is liable to be dismissed.
[5] We have heard the learned counsel for the parties and perused
the paperbook.
[6] From the perusal of the record it is evident that the appellant
had filed petition for dissolution of marriage by way of decree of divorce
under Section 13 of the HMA. Respondent-wife put in appearance and
filed her written statement. She also preferred application under Section
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24 of the HMA seeking maintenance pendente lite and litigation expenses,
which was allowed on 22.04.2015 awarding her maintenance @ `25,000/-
per month from the date of filing of the application besides litigation
expenses to the tune of `2200/-. However, due to financial hardship,
appellant could not clear the arrears of maintenance in time. Lateron, the
appellant paid `2,00,000/- to the respondent-wife by way of cheque dated
24.10.2016 and her statement accepting the said cheque had also been
recorded separately. The Family Court dismissed the application of the
appellant for restoration of his petition under Section 13 of the HMA only
on the ground that there had been unjustified delay of almost two months
on the part of the appellant, which was deliberate and intentional. It is
further seen that appellant filed Civil Revision No.689 of 2017
challenging the impugned orders, which was dismissed as withdrawn with
liberty to avail alternate remedy, if available vide order dated 07.03.2017
(Annexure P-10).
[7] From the sequence of events mentioned above, it is axiomatic
that the appellant could not pay the maintenance due to financial hardship.
However, he had paid the entire arrears of maintenance amounting to
`2,00,000/- through cheque dated 24.10.2016, which was duly received by
the respondent-wife. After paying the arrears of maintenance he
immediately moved application for restoration of his petition under
Section 13 of the HMA, which was dismissed by the Family Court solely
on the ground of delay by adopting hyper-technical approach by ignoring
the fact that the appellant had already cleared the arrears of maintenance.
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[8] For the reasons mentioned above, present appeal is allowed.
Impugned orders of the Family Court dated 28.04.2016 and 15.11.2016
are set aside and the petition filed by the appellant under Section 13 of the
HMA is restored to its original number.
(Ritu Bahri) (Ashok Kumar Verma)
Judge Judge
March 11, 2022
R.S.
Whether speaking/reasoned Yes/No
Whether Reportable Yes/No
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