Court No. - 3
Case :- FIRST APPEAL No. - 586 of 2004 Appellant :- Jag Pal Respondent :- Smt. Ram Beti Counsel for Appellant :- Ramendra Asthana,Sharad Sharma,Vinay Kumar Khare,Vinit Mishra Counsel for Respondent :- Abhey Raj Singh
Hon'ble Pankaj Mithal,J. Hon'ble Rajiv Joshi,J.
Heard Sri Sharad Sharma, learned counsel for the appellant-husband and Sri P.K. Singh holding brief of Sri Abhey Raj Singh, learned counsel for the respondent- wife.
The appeal has been preferred under Section 19 of the Family Court Act against the judgment and order dated 16.3.2004 passed by the family court by which the divorce petition of the appellant-husband has been dismissed for non-payment of maintenance awarded under Section 24 of the Hindu Marriage Act.
The appellant-husband had applied for dissolution of marriage under Section 13 of the Hindu Marriage Act on the ground of desertion that the wife has left the matrimonial home in the year 1985 and is living separately for a continuous period of more than 11 years.
The family court while considering whether the above ground of desertion for dissolution of marriage is proved or not had dismissed the divorce petition only for the reason that the maintenance awarded has not been paid. The payment of maintenance or non appearance of the party may be a serious matter, which may require penal action so as to compel the party to appear or to make the payment, but it definitely cannot be made the basis for dismissing the petition for the dissolution of marriage. No such petition can be dismissed unless the court comes to the conclusion that it is not maintainable or that the ground on which the dissolution is sought, is not properly pleaded, made out and proved. In the absence of any of the above things, the family court manifestly erred in dismissing the petition for dissolution of marriage by the impugned order.
Accordingly, the impugned order dated 16.3.2004 is unsustainable and is hereby set aside and the family court is directed to proceed and decide the aforesaid petition under Section 13 of the Hindu Marriage Act in accordance with law most expeditiously, keeping in mind the mandate of Section 21-B of the Act.
The appellant-husband has placed before us the application, which he has moved in the family court in execution proceedings on 16.7.2014 indicating the various deposits he has made to satisfy the order of award of maintenance. The said application reveals that on 16.7.2014, he had deposited a sum of Rs. 91,369/- and that only a sum of Rs. 2481/- had remained as arrears. He also informs that he is regularly depositing the monthly maintenance of Rs. 2500/- as awarded to the wife under Section 125 of the Cr.P.C. The aforesaid deposit is after adjusting the amount of pendente lite maintenance of Rs. 1200/- per month plus Rs. 50/- per date fixed in the matter awarded under Section 24 of the Hindu Marriage Act. The question whether the aforesaid deposits are sufficient or not, can be taken care of by the executing court depending upon the result of the divorce proceedings.
The appeal is allowed with the above observation.
Order Date :- 24.4.2018 Noman