1 W.P.No.1404 of 2013 W.P.No.1404 o”
24. 6.2013 Dr. Anuvad Shrivastav, counsel for the petitioner. Shri S.P.Tripathi, counsel for the respondent. The petitioner/ defendant (wife) has filed this petition being aggrieved by the order dated 30.7.12 passed by the Ist Addl. Principal Judge, Family Court, Bhopal in RCS No.271-A/2012 whereby her application filed under section 24 of the Hindu Marrige Act for the sum of interim alimony, in the proceedings instituted by the respondent/ plaintiff ( husband) under section 13 of the Hindu Marriage Act, in part till the extent of traveling expenses, the remaining part of the same for grant of interim monthly alimony as maintenance, has been refused.
2. Counsel for the parties are heard at length.
3. The petitioner's counsel after taking me through the papers placed on the record said that there is no any order of the competent forum or the court to show that at any point of time the petitioner after taking some lump-some amount has relinquished her right to get the maintenance from the respondent. But the trial court taking into consideration the basis of some agreement, as alleged, signed by the parties by holding that the petitioner has already taken Rs.3 lacs in lump-some from the respondent for her future maintenance, and in such premises, the aforesaid prayer of the interim monthly alimony has been rejected. Such findings being based on such agreement, is not sustainable. He also said that in any case the trial court before dismissing such part of the application should have extended the opportunity of cross-examination of the respondent on the aforesaid agreement to the petitioner. With these submissions he prayed for allowing her application for remaining part also with a direction to the respondent to pay the monthly maintenance/ alimony as prayed in the application by admitting and allowing this petition.
4. On the other hand, respondent's counsel by referring the averments of the impugned order said that the trial court has not committed 2 W.P.No.1404 of 2013 any error in passing the impugned order by relying on the alleged agreement which has taken place between the parties before filing the petition. In addition he said that after taking Rs.3 lacs lump-some, under the agreement the petitioner did not have any right to claim the interim alimony in the impugned matrimonial case. He further said that besides this, the petitioner has also initiated the proceedings against the respondent under section 23 of Protection of Women from Domestic Violence Act,2005 (in short `the Act') in the Court of JMFC Jabalpur and on consideration of some interlocutory application in such case, the respondent has been directed to pay Rs.3000/- per month to the petitioner as maintenance. He also argued that earlier the respondent was working in some institution of electronic media, namely Bansal news at the salary of Rs.6000/- per month but due to matrimonial dispute the respondent was not in a position to perform his work in such service in regular course consequently such institution has removed him from the service and not he is not having any regular source of income to pay the interim alimony to the petitioner and prayed for dismissal of this petition.
5. Having heard, keeping in view the arguments advanced by the counsel, I have carefully gone through the petition and the return along with the papers annexed with them.
6. It is apparent that the impugned order has been passed taking into consideration the aforesaid agreement projected by the respondent/ plaintiff , as alleged, the same is signed by the parties. According to such agreement in the alleged settlement Rs.3 lacs in lump-some has been taken by the petitioner from the respondent and pursuant to that the petitioner is not having any authority to claim the interim alimony or the sum of maintenance from the respondent. But it is also apparent that such agreement has neither been produced before any court not considered in any litigation and in such premises there is no any finding on such agreement either of the Family Court or the other court either in the matrimonial proceeding or in some other proceedings relating to maintenance. I have No.3 W.P.No.1404 of 2013 been apprised by the respondent counsel with any document from the record that in which manner such agreement was considered by the JMFC while dealing with the aforesaid proceeding of the Act. I am of the considered view that unless the right of maintenance has been left by petitioner herself and such version has been approved and recognized by any of the court of law, mere such alleged agreement could not be a ground to refuse the interim alimony during pendency of the matrimonial litigation, if the wife like the petitioner is not having any source of income. The alleged agreement is the subject matter of evidence in the impugned matrimonial case as well as in other pending cases which is yet to be considered by the concerning court after recording the evidence of the parties.
7. The intention of the legislature in enacting the section 24 of the Hindu Marriage Act is that the party of the litigation should survive and contest the matter under her right till its adjudication and if such alimony is not paid to the wife like the petitioner who is not having any source of earning then she would not be in a position to contest the matter effectively and, in such premises, the trial court has committed error in not awarding the sum of monthly interim alimony for the maintenance to the petitioner.
8. True it is that the aforesaid JMFC Court under the provisions of the Act has directed the respondent to pay Rs.3000/- per month as maintenance to the petitioner. Such fact is also not been disputed by the petitioner's counsel but respondent's counsel has fairly submitted that till today inspite of such direction no such sum has been paid to the petitioner.
9. Law is well settled on the question where there the wife has got some order of maintenance and pursuant to that is getting sum of maintenance in any of the proceedings then such sum of maintenance received in such case should be adjusted in the other cases and, in such premises, if the respondent has been directed to pay Rs.3000/- per month to the petitioner in the proceedings of the Act by the JMFC then even after passing the order in the present matter under section 24 of the Hindu Marriage Act, the trial court as well as of the court are bound to give 4 W.P.No.1404 of 2013 direction to adjust such sum in the sum awarded by JMFC. In such premises, it is held that under the order of interim alimony which is being passed in this petition in favor of the petitioner, she will get such sum if she did not get the ordered sum in other matter and if she is getting more than the ordered sum in said other case then the sum of maintenance which is being directed in the present matter shall be adjusted in the sum which has been awarded by the JMFC in aforesaid case of the Act.
10. So far the income of the petitioner is concerned, if the husband like the respondent is able bodied and healthy person then non-earning or lesser earning could not be a ground to reject the petitioner's application for interim alimony because the husband like the respondent is bound to pay the maintenance for her livelihood. So, the argument of the respondent's counsel in this regard has not appealed me.
11. In view of the aforesaid discussion, by allowing this petition, the impugned order till the extent of dismissing part of the impugned application of the petitioner, is hereby set aside and such application of the petitioner is allowed for that part also. Pursuant to it, the respondent is directed to pay Rs.2000/- per month as interim alimony to the petitioner till disposal of the impugned case. It is made clear that if the sum awarded by the JMFC in the proceedings under the aforesaid Act is received by the petitioner then the respondent shall have a right to adjust the same. If for any reason such amount is not paid by the respondent under the proceedings of the Act then the petitioner shall be at liberty to recover the sum of the interim alimony on the basis of this order from the respondent.
12. Petition is allowed as indicated above. (U.C.Maheshwari) Judge MKL