The Allahabad High Court has recently upheld the order of the Family Court and rejected the petition of the man, directing him to pay Rs 3000 monthly interim maintenance to the wife till the divorce petition is pending.
The Division Bench of Justice Sunita Agarwal and Justice Krishan Pahal passed this order while hearing a petition filed by Gaurav Mishra. The appeal is directed against an order of grant of interim maintenance to the respondent wife to the tune of Rs 3,000 per month, which is payable by 10th of every month. In addition to the same, Rs 5,000 only as a lumpsum towards the cost of proceedings has been awarded to the wife.
In this case, for the arrears of monthly maintenance fixed by the Family Court, it was directed that the arrears payable with effect from the date of the application till the date of passing of the order shall be payable in four equal installments within a period of four months.
Challenging the order, the first contention of the counsel for the appellant is that a suit for grant of divorce by mutual consent under Section 13-B of Hindu Marriage Act had been filed by the parties, which was later withdrawn by the wife.
The appellant thereafter, had no option but to institute the divorce suit seeking divorce on the grounds available to him. In such a situation, in the proceedings drawn by the appellant husband, the wife is not entitled to seek maintenance.
It is further contended that the appellant is earning Rs 3,500 per month only which is evident from the salary certificate dated January 15, 2021 issued by his employer.
The Court noted that the respondent wife in her application under Section 24 of the Hindu Marriage Act had made a categorical statement that the appellant husband has a shop of saria, cement and tiles and is earning Rs 1,00,000 per month from the said business.
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The objection to the application under Section 24 of the Hindu Marriage Act filed by the husband before the court below has not been brought on record.
As regards the contention of withdrawal of the petition under Section 13-B of the Hindu Marriage Act, the Court found that the provisions of Section 23 of the Hindu Marriage Act which clearly provides that in case in any proceeding drawn under the said Act, whether defended or not, if the Court is satisfied that the divorce is sought on the ground of mutual consent but such consent is not obtained by force, fraud or undue influence and there is no other legal ground why relief should not be granted, then the Court shall decree such relief accordingly.
The Court said that, meaning thereby that in case in a petition seeking divorce on the ground of mutual consent, the Court is satisfied that the consent is not independent and has been obtained by any kind of force, fraud or undue influence, it can deny to grant decree by mutual consent, even if the consent on affidavit of both the parties is before it.
“In the case, however, the wife had withdrawn the petition under Section 13-B of the Hindu Marriage Act and the order in this regard had been passed on July 19, 2018, which records that the wife had withdrawn the petition before the second motion. In the said scenario, no adverse inference can be drawn against the wife for withdrawal of the petition under Section 13-B of the Hindu Marriage Act. In any case, the proceedings for divorce have been drawn by the husband. The wife is, thus, entitled to seek interim maintenance on the premise that she has no independent source of income and the Court may award the maintenance in order to prevent the wife from reaching the stage of destitution,”
-the Court observed.
“In the said scenario, the decision of the Family Court for granting interim maintenance to the wife rejecting the above noted objections of the husband cannot be said to suffer from any infirmity. No interference, thus, can be made. The appeal is dismissed at the admission stage itself,” the Court ordered.