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Anand Prakash vs Mansha Kumari on 26 September, 2019

IN THE HIGH COURT OF JUDICATURE AT PATNA
CIVIL MISCELLANEOUS JURISDICTION No.1158 of 2019

Anand Prakash
… … Petitioner
Versus
Mansha Kumari
… … Respondent

Appearance :
For the Petitioner : Mr. Surendra Kumar Singh, Sr. Advocate
Mr. Raj Dular Sah, Advocate
Mr. Praveen Prakash, Advocate
For the Respondent : Mr. Baidyanath Prasad, Advocate
Mrs. Mamta Kumari, Advocate

CORAM: HONOURABLE MR. JUSTICE ASHWANI KUMAR SINGH
ORAL ORDER

4 26-09-2019 Heard Mr. Surendra Kumar Singh, learned senior

counsel for the petitioner and Mr. Baidyanath Prasad, learned

counsel appearing for the sole respondent.

2. This application under SectionArticle 227 of the

Constitution of India has been filed by the petitioner for setting

aside the order dated 10.07.2019 passed by the learned Principal

Judge, Family Court, Patna in Matrimonial Case No.905 of 2012

by which he has rejected the application filed by the petitioner on

03.04.2017 for recall of the order dated 28.05.2015 passed on an

application filed under Section 24 of the Hindu Marriage Act.

3. Learned senior advocate appearing for the petitioner

submitted that the petitioner has filed an application under Section

13 of the Hindu Marriage Act for decree of divorce vide

Matrimonial Case No.905 of 2015 before the court of Principal

Judge, Family Court, Patna. The respondent appeared and filed her
Patna High Court C.Misc. No.1158 of 2019(4) dt.26-09-2019
2/5

written statement. She filed an application under Section 24 of the

Hindu Marriage Act claiming Rs. 25,000/- (twenty-five thousand)

per month as interim maintenance allowance taking plea that she

has no source of income and is leading a life of destitute. She

claimed that the petitioner, being an Engineer, having sufficient

source of income, has neglected and abandoned the respondent.

4. After hearing the parties, the learned Principal

Judge, vide order dated 28.05.2015, directed the petitioner to pay

Rs.6,000/- (six thousand) per month to the respondent towards her

maintenance pendente lite as well as litigation cost of Rs.15,000/-

(fifteen thousand).

5. Being aggrieved, the petitioner challenged the

aforesaid order dated 28.05.2015 before this Court vide CWJC

No.9638 of 2015 praying therein that he is unemployed and is not

in a position to pay maintenance pendente lite amounting to

Rs.6,000/- (six thousand) as also the litigation cost.

6. After hearing the parties, this Court vide order dated

02.03.2016 dismissed the aforesaid CWJC No.9638 of 2015.

7. Learned senior counsel appearing for the petitioner

further contended that after the dismissal of the application filed

by the petitioner before this Court, the petitioner complied with the

order passed by the learned Principal Judge, Family Court till

15.02.2017. However, he stopped making payment thereafter as he
Patna High Court C.Misc. No.1158 of 2019(4) dt.26-09-2019
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came to know that by playing fraud upon the court, the respondent

had obtained the order granting ad interim maintenance allowance.

He contended that the petitioner came to know that the respondent

is employed as a primary teacher under the Prakhand Niyojan

Ekai at the time the application for ad interim maintenance was

allowed by the learned Principal Judge. He contended that as of

date, the salary of the respondent is about Rs.22,000/- (twenty-five

thousand) and she has got sufficient income to support herself.

Having come to know about the aforesaid fraud, the petitioner

filed an application on 03.04.2017 before the court of Principal

Judge, Family Court, Patna for recall of the order dated

28.05.2015. The said application was rejected by the court below

merely on the ground that the order passed by the Family Court on

28.05.2015 has not been set aside by this Court upon challenge.

8. He contended that the dismissal of the application

by the court below is without application of judicial mind. He has

drawn my attention towards the deposition of the respondent

adduced before the court of Principal Judge wherein she has

admitted that presently she is working in Upgraded Middle

School, Parmalpur, which falls in Bhabhua block of Kaimur

district. She has also admitted that her appointment is as a regular

teacher since the month of May, 2015. She has also admitted in her

deposition that she is getting Rs.22,000/- (twenty-two thousand)
Patna High Court C.Misc. No.1158 of 2019(4) dt.26-09-2019
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per month as salary. He contended that in view of the aforesaid

admission on the part of respondent, the court below ought to have

recalled its earlier order, which was passed on consideration that

the respondent is an educated unemployed lady having no

independent source of income and is dependent on her father for

her livelihood.

9. Per contra, learned counsel appearing for the

respondent submitted that there is no truth behind the allegation

that the respondent obtained the order dated 28.05.2015 by playing

fraud upon the court or suppressing any material from the court.

He contended that at the time when the application for ad interim

maintenance under Sectionsection 24 of the Hindu Marriage Act was

filed, the respondent was not employed. Hence, there was no

misstatement or misrepresentation on the part of respondent in

filing the application claiming maintenance allowance. He

contended that the order was passed by the court below on

28.05.2015 and, more or less, at the same time, she was selected

for appointment. Hence, the contention that the respondent has

suppressed anything from the court is baseless. He has further

contended that though there is no stay from this Court, the

petitioner has stopped paying maintenance allowance with effect

from 15.02.2017. He contended that the application filed by the

petitioner is fit to be rejected on this ground alone.
Patna High Court C.Misc. No.1158 of 2019(4) dt.26-09-2019
5/5

10. At this stage, learned senior counsel appearing for

the petitioner submitted that the petitioner has no intention to

disobey the order passed by this Court. He stopped payment only

because he was pursuing his remedy before the court below for

recall of the order on the ground that the circumstances have

changed and the respondent does not need any financial support

from the petitioner for maintaining herself. He contended that the

petitioner is ready to pay the due amount but, on that ground the

application be not dismissed.

11. Having heard the parties, put up on 25.10.2019.

12. In the meantime, the petitioner shall be required to

make payment of the due amount to the respondent and file a

supplementary affidavit in this regard.

(Ashwani Kumar Singh, J.)
Sanjeet/-

U

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