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Allahabad HC says divorced woman entitled to maintenance even if she hasn’t accepted alimony

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The Allahabad High Court has held that a divorced woman who is not accepting permanent alimony is entitled to maintenance even if an order for maintenance allowance has been passed by the Family Court under the Hindu Marriage Act.

A single-judge bench of Justice Syed Aftab Husain Rizvi passed this order while hearing a Criminal Revision filed by Tarun Pandit.

The criminal revision is directed against the order dated March 4, 2021 passed by Additional Special Judge, Family Court, Gautam Budh Nagar.

By the order, the court below has allowed the maintenance application U/s 125 CrPC of Opposite Party No 2 (Sneha Pandit) and has awarded Rs 25,000 per month as maintenance to her from the date of filing of the application.

The facts of the case are that Sneha Pandit moved an application for maintenance U/s 125 CrPC against revisionist Tarun Pandit with the allegations that her marriage was solemnized with the opposite party on 22.11.2009 and she performed her marital obligations after the marriage. After sometime, the behaviour of opposite party was not cordial with her and he started to mentally and physically torture her. Making certain other allegations, it was further stated that the opposite party has left her at her maternal house and since 30.11.2013 she is living with her father. The opposite party is ignoring her and not maintaining her and is not ready to keep her with him and has deserted her.

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She has no source of income while the opposite party is Squadron Leader in the Indian Air Force and his salary is Rs 80,000 per month. On the aforesaid ground, Shena Pandit claimed a maintenance allowance of Rs 40,000 per month.

The revisionist (opposite party) filed his reply in which he admitted the marriage but denied rest of the allegations and further submitted that the applicant herself without any just cause is living separately from her husband and it is she who has deserted him. The revisionist has also made certain allegations against the applicant and stated that she is responsible for the whole affair and she does not want to live with the opposite party.

It is further alleged that the applicant has falsely shown her address of Noida Gautam Budh Nagar. In fact, the applicant and her parents live at house Saket Colony, District Meerut and that is their permanent address. The address mentioned in the application is false. The applicant has filed the application with false facts concealing the real facts and has not come with clean hands. The court below after taking evidence and hearing arguments of the parties by the order has allowed the application and awarded the maintenance allowance.

One of the grounds on which the order has been challenged is that the revisionist (opposite party) has taken specific objections regarding jurisdiction of the court at Gautam Budh Nagar but the court below has not recorded any finding regarding jurisdiction of the court at Gautam Budh Nagar.

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The counsel for the revisionist contended that the objections filed by the opposite party are specific objections and it is alleged that O.P No 2 was living with her parents in their house at Saket Colony, Meerut and not at Gautam Budh Nagar. This objection has also found support from the order dated 29.8.2016 passed by the Additional Principal Judge, Family Court, Meerut in proceeding U/s 24 of the Hindu Marriage Act filed by the opposite party No 2. The court below recorded the specific finding that opposite party No 2 was residing at Saket Colony, Meerut and not at Gautam Budh Nagar. The said finding has never been challenged by the opposite party No 2 before any higher authority and the same has attained finality.

Therefore, the court at Gautam Budh Nagar has no jurisdiction to entertain the petition U/s 125 CrPC and the judgment and order is without jurisdiction, illegal and deserves to be set aside.

Counsel also contended that entire criminal proceedings were also initiated by opposite party No 2 at Meerut and not at Gautam Budh Nagar. This clearly shows that opposite party 2 was residing permanently at Meerut and not at Gautam Budh Nagar but just to harass and pressurize the revisionist and his family members proceeding U/s 125 CrPC was deliberately initiated at Gautam Budh Nagar.

Counsel for the opposite party no 2 submitted that a perusal of the objections filed by the revisionist against the application U/s 125 CrPC would reflect that no precise objection was taken before the court below that the application U/s 125 CrPC is not maintainable at District Gautam Budh Nagar as it lacks jurisdiction.

Counsel further contended that the counter affidavit the respondent has mentioned in detail and brought on record the material to demonstrate that she has been residing at district Gautam Budh Nagar. In fact, the respondent was undergoing a course in J.P Institute of Information Technology at District Gautam Budh Nagar.

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Counsel further submitted that the finding of the trial court in proceeding U/s 24 of the Hindu Marriage Act dated 29.8.2016 is based on a medical certificate issued by the doctor in District Meerut. In fact, on a visit to District Meerut for a date in the case the respondent fell ill and she had to consult a doctor there. On the basis of the same the court mentioned about her residence which is un-consequential. There was no occasion to arrive at a conclusion that the respondent was residing in District Meerut and the respondent has already brought on record a number of documents to demonstrate otherwise. From the perusal of the objections of revisionists (opposite party) filed against the application U/s 125 CrPC it appears that there is no specific plea that the court at Gautam Budh Nagar lacks jurisdiction.

Another ground on which the order has been challenged is that Family Court, Meerut which is the competent court in divorce petition U/s 13 of Hindu Marriage Act has granted divorce decree in favour of the revisionist and has also awarded Rs. 25 lacs as permanent alimony U/s 25 of the Hindu Marriage Act while passing the decree of divorce and hence, no maintenance U/s 125 CrPC can be awarded and application is not maintainable.

Counsel for the revisionist vehemently contended that in divorce petition U/s 13 of Hindu Marriage Act the competent court has passed the divorce decree dated 21.2.2016 and while passing the decree has also awarded permanent alimony of Rs 25 lacs, which has duly been deposited by the revisionist in the court on 20.3.2018.

Thus opposite party no 2 has Rs 25 lacs at her disposal and cannot be said to be without financial resources and her condition is not of a destitute. There is no question of non-sustenance. The court below has not considered it. Though the appeal against divorce decree is pending, the said order has not been stayed. The court below lost its sight in not considering the legal preposition that a divorced wife can claim maintenance U/s 25 of the Hindu Marriage Act and not U/s 125 CrPC.

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When a divorce decree U/s 13 of the Hindu Marriage Act is passed the wife of such annulled married can claim maintenance U/s 25 of Hindu Marriage Act. It is only such court which passed the divorce decree who is alone competent to grant maintenance U/s 25 of the Hindu Marriage Act. Hence, the order is absolutely illegal, arbitrary and against the said principle of law.

“Applying the aforesaid preposition of law on the set of facts it is clear that as O.P No 2 (wife) has not accepted the amount of alimony as she has challenged the divorce decree in appeal and appeal is pending and in that circumstances she cannot accept the amount of alimony. So it can not be said that she has sufficient financial resources as permanent alimony has been awarded to her.”

“At present, she has no source of income and financial support to maintain her and comes in the category of destitute. The trial court has dealt with the aforesaid point in its judgment and has categorically recorded the finding that applicant (O.P. No. 2) has no source of income and is unable to maintain herself and has been awarded the maintenance allowance. Hence, the impugned order does not suffer from any illegality or infirmity. There is no perversity in the impugned order,”

-the Court held.

“Another ground on the basis of which the order has been challenged is that the court below has directed the revisionist to pay maintenance from the date of filing of application i.e since 30.10.2013. In doing so the court below has completely lost its sight to the admitted fact that O.P No 2 had been paid Rs 18,900 as maintenance from the salary of revisionists by his department, the Indian Air Force.

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Counsel contended that the court below has not given any reason for award of maintenance from the date of filing of application. Once the O.P No 2 had been paid maintenance @ Rs 18,900 per month from the salary of revisionist up to March 2018 there was no justification for the court below to award maintenance from the date of application i.e since 30.10.2013. Counsel submitted that on this ground the order of court below is perverse, illegal and not sustainable. This argument has also no force,” the Court said.

The Court said that, in the order it is provided that if any amount of maintenance has been paid by the opposite party to the applicant the same shall be adjusted and the rest amount will be paid in two months. It is undisputed that O.P No 2 has been paid Rs 18,900 as maintenance from the salary of revisionists up to March 2018. After passing of divorce decree, the revisionist has deposited the amount of permanent alimony in the trial court and the amount of maintenance which was being paid from the salary of the revisionist, has been stopped. The O.P No 2 has not withdrawn the amount of alimony and it is lying deposited in the court below as the O.P No 2 has challenged the decree of divorce in appeal which is pending. After March 2018, no amount of maintenance is being paid by the revisionist. The trial court has already made provision of adjustment of the amount of maintenance earlier paid. So there is no illegality or infirmity on this count also.

“From the above discussion it is clear that the order does not suffer from any infirmity or illegality. It is also not perverse. There is no sufficient ground to set aside the impugned order. The revision is liable to be dismissed,”

-the Court observed while dismissing the petition.

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