Rana Ram vs Payal
2021 Latest Caselaw 6505 Raj

                                        (1 of 6)                    [CMA-1160/2019]


     HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
                      JODHPUR
              D.B. Civil Misc. Appeal No. 1160/2019
Rana Ram S/o Shri Teja Ram, Aged About 34 Years, B/c Sain,
R/o Village Pochhina, Tehsil And District Jaisalmer, At Present R/o
Cpl Rana Ram, M.t. Section, 1 T.a.c. , Indian Air Force, Opposite
D.i.g. Residence , Mal Road, Jalandha Cant Punjab.
                                                                    ----Appellant
                                   Versus
Payal D/o Shri Girdhari Lal, B/c Sain, R/o 18/620, Chopasani
Housing Board, Jodhpur.
                                                                  ----Respondent


For Appellant(s)         :     Mr. N.L. Joshi with
                               Ms. Kirti Pareek
For Respondent(s)        :     Mr. Shailendra Kala with
                               Mr. Anuj Kala


          HON'BLE MR. JUSTICE SANGEET LODHA
          HON'BLE MR. JUSTICE RAMESHWAR VYAS
                                Judgment
04/03/2021
BY THE COURT: (PER HON'BLE VYAS, J.)

This appeal has been filed by the appellant-husband against

the order dated 27.03.2019 passed by Family Court No.1, Jodhpur

in Civil Original Case No. 271/2018, whereby, the petition under

Section 13 of the Hindu Marriage Act, 1955 ('afterwards referred

as 'HM Act') filed by the appellant-husband has been dismissed on

the ground of alleged non-compliance of the order passed under

Sections 24 and 26 of the HM Act.

Brief facts of the case are that during the pendency of the

petition under Section 13 of the HM Act filed by appellant-husband

against respondent-wife, an order dated 16.10.2014 under Section

24 read with Section 26 of the HM Act was passed in favour of

respondent-wife awarding Rs.5,000/- per month as interim

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maintenance, Rs.3,000/- as legal expenses and

Rs.2,500/- as advocate fees. An application was preferred by

respondent-wife for dismissal of petition under Section 13 of the

HM Act on the ground that out of Rs. 2,25,000/- outstanding

towards the interim maintenance, only Rs.2,000/- has been paid

upto 18.08.2017. On the said application, the appellant-husband

was directed to pay remaining arrears within a period of three

months from the date of order i.e. 20.07.2017; it was further

directed by the Court that on failure of paying the arrears within

the stipulated period, the divorce petition under Section 13 of the

HM Act shall be dismissed. On 24.10.2018 three cheques of

Rs.30,000/-, Rs.40,000/- & Rs.35,000/- were given to

respondent-wife and proceedings were adjourned for payment of

rest of the arrears. On 27.03.2019 the divorce petition was

dismissed on account of non-compliance of order passed under

Section 24 read with Section 26 of the HM Act.

Being aggrieved by the impugned order this appeal has been

filed by the appellant-husband.

Learned counsel for the appellant submitted that admittedly,

the maintenance amount of Rs.5,000/- was awarded to the

respondent by the Family Court vide order dated 16.10.14 under

Section 24 of the HM Act. Later, vide order dated 24.10.17 passed

in proceedings under Section 125 Cr.P.C., the amount of

maintenance payable to the respondent and her daughter was

determined as Rs.10,000/- per month and Rs.5,000/- per month

respectively. The amount to be paid under any other proceedings

has been specifically directed to be adjusted against the amount

of maintenance awarded in proceedings under Section 125 Cr.P.C.

Learned counsel submitted that the appellant has already paid an

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amount of Rs.4,64,000/- to the respondent by way of cash,

cheque and compulsory deduction from his salary and as per the

order passed by the Court, a sum of Rs.20,000/- is being

recovered from the appellant's monthly salary till this date. It is

submitted that in view of the recovery already made, no amount

of maintenance is due against the appellant under Section 24 of

the HM Act.

Learned counsel for the appellant while relying on the

judgment of this Court passed in D.B. Civil Misc. Appeal

No.551/2017 : Amandeep Soni v. Smt. Monika Soni, decided on

13.07.2018 submitted that for non-compliance of the direction

made in the application under Section 24 of the HM Act, a petition

seeking divorce cannot be dismissed and thus, the order under

appeal deserves to be set aside.

On the contrary, learned counsel for the respondent-wife

contended that for non-compliance of the order passed under

Section 24 of the HM Act divorce petition can be dismissed.

Counsel for the respondent has produced statement of payment

made by the appellant under Section 24 of the HM Act and Section

125 Cr.P.C., according to which, a total sum of Rs. 4,64,000/- has

been paid and now upto March, 2021 Rs.3,36,500/- are due

against the appellant-husband. It is submitted that unless and

until this amount is paid, appellant is not entitled to proceed under

Section 13 of the HM Act.

Learned counsel for the respondent-wife relied on the

following judgments:-

(i) Jai Shanker v. Chandresh : 1980 WLN (UC) 82 (Raj.).

(ii) Pinki v. Jwala Prasad : 2013 (2) CCC 335 (Raj.).

(iii) Hirachand Srinivas Managaonkar v. Sunanda : 2001 (4) SCC

125.

(iv) Muraleedharan v. Jincy : 2019 (1) CCC 262 (Kerala).

(4 of 6) [CMA-1160/2019]

(v) Jayan v. Suja : 2017 Supreme (Ker.) 490.

Heard learned counsel for the parties and perused the

material available on record.

In the case of Amandeep Soni (supra), relied on by learned

counsel for the appellant, the Division Bench of this Court held

that for non-compliance of the direction by the appellant in the

application under Section 24 of the Hindu Marriage Act, a petition

seeking divorce cannot be dismissed. At best it can be adjourned

sine die. If the appellant pays maintenance to the wife and gives

proof to the Court, proceedings can be revived on filing the

application.

In the case of Jai Shanker (supra) relied on by learned

counsel for the respondent this Court while granting last

opportunity to the appellant to comply with the order of the Court

awarding maintenance under Section 24 of the HM Act, directed

that on failure to deposit the amount, the appeal shall stand

dismissed.

In the case of Pinki (supra) the writ petition was disposed of

with the direction to the husband to deposit all arrears by

05.02.2013, at the same time it was held that if the amount is not

deposited by husband within the prescribed period as directed, his

petition for dissolution of marriage be dismissed forthwith.

In the case of Muraleedharan (supra) Kerala High Court held

that when the husband willfully makes default in complying with

the order passed by a competent court under Section 125 Cr.P.C.

granting maintenance to the wife and children, the defence of

such person in any proceedings instituted against him by wife in

connection with or in relation to matrimonial issues between them,

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can be struck off by Court by invoking the power under Section

151 of the Code.

In the case of Jayan (supra) Kerala High Court held that to

prevent the abuse of process of court, the court below was

justified to strike off the defence, even if, there is no such

provision in the Hindu Marriage Act.

After considering the judgments relied on by counsel for the

parties, we are in agreement with the view taken by the Division

Bench of this Court in the case of Amandeep Soni (supra) that for

non-compliance of the direction by the appellant in the application

under Section 24 of the HM Act, a petition seeking divorce cannot

be dismissed. At best it can be adjourned sine die.

It is true that the Court has inherent power under Section

151 CPC to prevent the abuse of process of the law and for that

the Court can strike off the defence but above situation is not

there in the present case. The appellant has already paid a

substantial amount of maintenance to the respondent and against

the arrear and the future payment of maintenance, a sum of

Rs.20,000/- is being deducted from the salary of the appellant,

which would obviously take care of the arrears of the maintenance

as also the future liability of the maintenance payable in terms of

the order passed by the Family Court as aforesaid.

In view of the above factual and legal position, the impugned

order passed by learned Family Court No.1, Jodhpur deserves to

be set aside.

Consequently, this appeal is allowed. The impugned order

dated 27.03.2019 passed by Family Court No.1, Jodhpur is set

aside. The petition under Section 13 of the HM Act dismissed by

the impugned order shall be restored forthwith. It is made clear

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that after revival of the petition under Section 13 of the HM Act

the respondent shall be entitled to get Rs. 5,000/- per month

under Section 24 of the HM Act from the date of restoration of

petition under Section 13 of the HM Act, however, the amount

payable in terms of the order in proceeding under Section 24 of

the HM Act shall be adjustable against the amount of maintenance

awarded in proceedings under Section 125 Cr.P.C. which is being

recovered by way of deduction from the appellant's salary.

It is made clear that the appellant shall be at liberty to make

an appropriate application for varying the order passed by the

Family Court regarding deduction from salary once the arrear of

maintenance stands satisfied. Further, the disposal of the present

appeal shall not preclude the appellant in any manner from

questioning the legality of the order passed by the Family Court in

proceedings under Section 125 Cr.P.C. and if the order passed by

the Family Court in proceedings under Section 125 Cr.P.C. is varied

by the order of the court of competent jurisdiction, the appellant

shall be at liberty to make an appropriate application before the

Family Court regarding the adjustment of the amount of

maintenance paid in excess if any.

                                    (RAMESHWAR VYAS),J                                    (SANGEET LODHA),J

                                    AK Chouhan/-









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