Hon'ble Dr. Vijay Laxmi,J.
(Delivered by Hon'ble Satyendra Singh Chauhan, J.) This is an application for release of amount of pendente lite maintenance.
This application has been moved with the prayer that the entire amount of pendente lite maintenance of the applicant-appellant may be released in pursuance to the order dated 4.12.2012 passed by this Court and confirmed vide order dated 15.4.2014 passed by the Hon'ble Supreme Court.
The applicant-appellant filed First Appeal No.91 of 2006 and the said appeal came to be decided in her favour vide order dated 6.11.2015 and it is stated that when the appeal was decided, the pendente lite amount which was directed to be deposited by this Court could not be released in favour of the applicant-appellant due to the fact that the matter went up to the Hon'ble Supreme Court against the order passed by this Court wherein the applicant-appellant pressed for release of the amount, which was refused by this Court and later on, the Hon'ble Supreme Court affirmed that order. During the course of hearing of the appeal, again an application was moved for release of the amount, which was rejected by this Court vide order dated 13.8.2015. Thereafter, the appeal was heard and allowed. While allowing the appeal, this Court could not take into consideration the request of the applicant-appellant for releasing the pendente lite maintenance deposited before this Court.
It has been submitted by the learned counsel for the applicant-appellant that the applicant-appellant is facing long drawn litigation and she has to engage various lawyers before this Court as well as before the Hon'ble Supreme Court where the SLP is now pending and the judgment of this Court has been stayed. Learned counsel submits that for engaging the Advocate in the Hon'ble Supreme Court and also for pursuing the appeal in the Hon'ble Supreme Court, she is in the need of amount and she cannot face the litigation from her salary, which is being paid to her, in this scenario of inflation. It is submitted that the husband of the applicant-appellant is a Doctor and running a hospital and is having a huge income as compared to the income of the applicant-appellant. The applicant-appellant is facing financial hardship in this long drawn litigation and hence, she is entitled for release of the pendente lite maintenance, which has been deposited in this Court. He has relied upon the judgment rendered in the case of Pratima Yadav v. Vinod Kumar Yadav, 2013 (5) ALJ 48 and the cases relied upon in the said judgement i.e. Vinod Kumar Kejriwal v. Usha Vinod Kejriwal, AIR 1993 Bombay 160, Chitra Sengupta v. Dhruba Jyoti Sengupta, AIR 1988 Calcutta 98, Sohan Lal v. Smt. Kamlesh, AIR 1984 Punjab and Haryana 332, Amrik Singh v. Smt. Narinder Kaur, AIR 1979 Punj & Hary 211 and N. Subramanyam v. Mrs. M. G. Saraswathi, AIR 1964 Mys 38.
Learned counsel for the respondent has filed an objection and refuted the argument of the learned counsel for the applicant-appellant and has submitted that once the Court has decided the appeal, it has become functus officio and cannot pass any order. If the amount has been deposited, then the same cannot be released by this Court after the final judgment is passed. He has relied upon the judgments rendered in the case of Dwaraka Das v. State of M.P. and another, (1999) 3 SCC 500, State of Rajasthan v. Teja Ram and others, (1999) 3 SCC 507, Jayalakshmi Coelho v. Oswald Joseph Coelho, (2001) 4 SCC 181, State of Punjab v. Darshan Singh, (2004) 1 SCC 328, Dy. Director, Land Acquisition v. Malla Atchinaidu and others, (2006) 12 SCC 87 and State Bank of India and others v. S.N. Goyal, (2008) 8 SCC 92.
The question before this Court is as to whether the Court has become functus officio after decision of the appeal or still has right to release pendente lite maintenance, which still lies with the Court without any order. What should be the provisions in matrimonial matters?
In matrimonial matters, this Court has already taken a view in the case of Pratima Yadav (supra) wherein it was held that if the suit for divorce is dismissed as withdrawn, termination of proceedings cannot be treated as bar for providing interim maintenance and the trial court failed to implement the order of the revisional court granting ad interim maintenance at the time of withdrawing suit and this Court after relying upon various judgments of various High Courts in paragraphs-7, 8, 9, 10 & 11 held as under:-
"7. A Division Bench of Punjab and Haryana High Court in the case of Sohan Lal v. Smt. Kamlesh, AIR 1984 Punjab and Haryana 332, has held as under:-
"From a reading of the section, it is evident that the Court, during the pendency of the proceedings under the Act, viz., for restitution of conjugal rights, judicial separation, divorce or nullity of marriage, can grant to a spouse having no sufficient income to maintain himself/herself and to meet the necessary expenses of the proceeding, maintenance pendente lite and litigation expenses. The object of enacting the section is that an indigent spouse should not suffer during the pendency of the proceedings because of his/her poverty. It is the duty of the Court to decide such an application expeditiously so that the indigent spouse is not handicapped because of want of funds. However, if the application under S. 24 is not decided during the pendency of the main petition on account of dilatory tactics of the other spouse or for some unforeseen circumstances, the whole purpose of the section stands frustrated in case it is dismissed on the ground that after the decision of main petition it does not survive. Therefore, we are of the view that even if the main petition is decided finally, the application under Section 24 which is pending decision can continue. Similarly, a revision petition filed against an order under Section 24 can continue in spite of disposal of the main petition. In the above view, we are fortified by the following observations of D. S. Tewatia, J. in Amrik Singh v. Smt. Narinder Kaur, AIR 1979 Punj & Hary 211:--
"If the view is that the provisions of Section 24 of the Act were intended by the legislature to enable the indigent spouse to secure wherewithal to defend the proceedings against oneself and to maintain oneself during the pendency of the proceedings, then it is incumbent upon the Courts to take an immediate decision upon the petition under Section 24 of the Act, otherwise the delay would defeat the very purpose. Otherwise in a case where the Court delays the decision on the application till the fag-end of the trial of the main case, right to maintenance and litigation expenses would be denied to the applicant on the specious argument that she had been able to prosecute the litigation for all that long period and had survived and so she was not entitled to favourable order on her application, for the litigation expenses and the interim maintenance under Section 24 of the Act was intended merely to meet the contingency of an indigent spouse not being able to prosecute the case and survive during the pendency of the proceedings which contingency would no longer exist when the proceedings had reached the stage of conclusion though not finally concluded."
8. It was further held:-
"Generally, the petitions under these sections are decided first and should as a matter of fact be decided before conclusion of main petition. It is further observed that a reading of Sections 24 and 26 does not show that if the main petition under Sections 9, 10, 12 or 13 is disposed of, the jurisdiction of the Court to award maintenance pendente lite by an order to be passed thereafter is taken away. This view was affirmed in Bhanwar Lal's case (AIR 1983 Raj 229) (supra). The same view was taken by a Division Bench of Mysore High Court in N. Subramanyam v. Mrs. M. G. Saraswathi, AIR 1964 Mys 38. It was held therein that it cannot be said that since the proceedings had themselves terminated, there was no occasion to grant interim maintenance or expense. The right to those items, if established, could not be defeated by allowing time to elapse and the pendency of the proceedings to end. We are in respectful agreement with the observations made in the aforesaid cases."
9. It has been further observed:-
"The word "proceeding" in the section appears at three places and it connotes the main proceedings, that is, proceedings other than proceedings under Section 24. The words "monthly during the proceedings such sum" are very important. These words show the intention of the legislature that it intended to give maintenance to the indigent spouse till disposal of the main petition. If the application under Section 24 is taken to be included in the word "proceeding"', anomalous results would follow. Therefore, we are of the opinion that if the application under Section 24 continues after dismissal of the main petition, the applicant is entitled to the maintenance till the date of the decision of the main petition."
10. Similar view has been taken by the Calcutta High Court in the case of Chitra Sengupta v. Dhruba Jyoti Sengupta, AIR 1988 Calcutta 98, wherein it has been held that the wife-appellant, who appealed against a decree of divorce passed against him, filed an application for maintenance pendente lite and cost of litigation under Section 24, it would be maintainable. In this case it was also held that "we are, however, of opinion that if she is otherwise entitled to maintenance under S.24, Hindu Marriage Act, the fact that she made no such application in the trial Court would be of no consequence."
11. In Vinod Kumar Kejriwal v. Usha Vinod Kejriwal, AIR 1993 Bombay 160, the Bombay High Court has also taken the same view as discussed above."
After relying upon the judgments of various High Courts, this Court held that even if the suit has been dismissed as withdrawn and the trial court failed to release the maintenance amount, the same ought to have been released. Termination of proceedings does not mean that the maintenance amount cannot be released, which was otherwise due under law.
Learned counsel for the respondent has relied upon the decisions rendered in the case of Dwaraka Das (supra), Teja Ram and others (supra), Jayalakshmi Coelho (supra), Darshan Singh (supra), Malla Atchinaidu and others (supra) and S. N. Goyal (supra), wherein general principle of law is involved, but the counsel for the respondent has not relied upon any case law relating to matrimonial dispute. Where matrimonial disputes are involved and it is found that the wife is entitled for maintenance which otherwise could not be released, then the amount is liable to be released.
Power is still possessed by the Court to release the amount. The maintenance awarded to the wife has already been approved by the Apex court. Grant of maintenance to the applicant-appellant was challenged before the Apex Court and Apex Court has dismissed the SLP vide order dated 15.4.2014 wherein orders passed by this Court dated 4.12.2012, 26.11.2013 and 3.3.2014 were put to challenge.
Once the maintenance has attained finality, then validity of the award of pendente lite maintenance cannot be looked into by this Court and SLP having been dismissed, the amount fixed by this Court has attained finality. The applicant-appellant is, therefore, entitled for withdrawal of the amount and for receiving the pendente lite maintenance during the course of litigation. Apart from it, looking to the long drawn litigation between the parties and also looking to the fact that income of the husband of the applicant-appellant is very high as he is running hospital and earning money from it coupled with the fact that the applicant-appellant has to pursue proceedings in the Hon'ble Supreme Court by engaging Advocate, we find that the applicant-appellant is entitled for pendente lite maintenance.
We accordingly allow this application and direct the Registry of this Court to release the amount deposited in this Court within a period of one week and we further provide that the applicant-appellant will be entitled for pendente lite maintenance during pendency of the proceedings as has been awarded by this Court vide order dated 4.12.2012.
May 23rd , 2016 RBS/-