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Manish Bhasker Dubey vs Prachi Dubey on 28 January, 2020

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH

?Court No. – 3

Case :- FIRST APPEAL No. – 54 of 2015

Appellant :- Manish Bhasker Dubey

Respondent :- Prachi Dubey

Counsel for Appellant :- Vivek Kumar Rai,Shashi Kumar Bajpai

Counsel for Respondent :- Girish Chandra Verma,Nandani Pandey

Hon’ble Ved Prakash Vaish,J.

Hon’ble Narendra Kumar Johari,J.

Heard Sri Vivek Kumar Rai, learned counsel for the appellant and Ms. Nandani Pandey, learned counsel for the respondent.

This is an appeal under Section 19 of the Family Courts Act, 1984 against an order dated 15th July, 2014 passed by learned Principal Judge, Family Court, Lucknow in Misc. Case No.79-C of 2013 (Prachi Dubey v. Manish Bhasker Dubey).

The brief facts of the present case are that marriage between the appellant- Sri Manish Bhasker Dubey and the respondent- Smt. Prachi Dubey was solemnized on 12th February, 2009; the appellant herein filed a petition under Section 13 of the Hindu Marriage Act, 1955; during pendency of the said petition, the respondent-wife moved an application under Section 24 of the Hindu Marriage Act, 1955 for grant of maintenance, pendent lite and litigation expenses; the said application was allowed by the trial court vide impugned order dated 15.07.2014.

Aggrieved by the said order dated 15.07.2014, the appellant-husband has filed the present appeal.

Learned counsel for the respondent submits that the present appeal under Section 19 (1) of the Family Courts Act, 1984 is not maintainable. Learned counsel for the respondent has relied upon a full Bench judgment of this Court in First Appeal No.17 of 2002 (‘Kiran Bala Srivastava v. Jai Prakash Srivastava’) decided on 10.09.2004.

We have carefully gone through the judgment of Full Bench in Kiran Bala Srivastava’s case (supra). In the said judgment, it has been observed that since orders under Section 24 of the Hindu Marriage Act, 1955 granting pendent lite maintenance is a judgment, therefore, the appeal will lie under sub-section (1) of Section 19 of the Family Courts Act, 1984.

In view of the judgment of Full Bench of this Court in Kiran Bala Srivastava’s case (supra), the submission made by learned counsel for the respondent deserves to be rejected.

Learned counsel for the appellant submits that the respondent-wife was earning at the time of moving an application under Section 24 of the Hindu Marriage Act, 1955 but the respondent concealed the same. He has also pointed out that the respondent has filed an affidavit dated 25.07.2019 stating that she is earning since July, 2011.

At this stage, Ms. Nandini Pandey, learned counsel for the respondent submits that she does not wish to press the application under Section 24 of the Hindu Marriage Act, 1955 and the respondent may be permitted to file a fresh application after incorporating complete facts before the concerned Family Court. Learned counsel for the respondent has written the same on the last page of the appeal.

Sri Vivek Kumar Rai, learned counsel for the appellant submits that he has no objection, if the respondent is permitted to withdraw the application filed under Section 24 of the Hindu Marriage Act, 1955 with liberty to file a fresh application after incorporating the complete facts.

In view of the submissions made by learned counsel for both the parties, the impugned order dated 15.07.2014 passed by Principal Judge, Family Court, Lucknow in Misc. Case No.79-C of 2013 (Prachi Dubey v. Manish Bhasker Dubey) is set aside and the respondent-wife is permitted to withdraw the application filed under Section 24 of the Hindu Marriage Act, 1955. However, the respondent-wife is at liberty to file a fresh application after incorporating the complete facts before the concerned Family Court and in case, a fresh application is filed, the same will be decided in accordance with law.

Accordingly, the appeal and pending application(s), if any, stand disposed of.

(Narendra Kumar Johri, J.) (Ved Prakash Vaish, J.)

Order Date :- 28.1.2020

Shanu/-

 

 

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