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Smt. Prem Kusum Asthana vs Lalit Mohan on 25 November, 2019

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH

Court No. – 3

Case :- FIRST APPEAL FROM ORDER No. – 522 of 2019

Appellant :- Smt. Prem Kusum Asthana

Respondent :- Lalit Mohan

Counsel for Appellant :- Murli Manohar Srivastava

Counsel for Respondent :- Apoorva Tewari

Hon’ble Anil Kumar,J.

Hon’ble Saurabh Lavania,J.

Heard Shri Murli Manohar Srivastava, learned counsel for the appellant and Shri Apoorva Tewari, learned counsel for the respondent.

Facts, in brief, as alleged in the present appeal, of the case are that the marriage of the appellant/Smt. Prem Kusum Asthana was solemnized with the respondent/Lalit Mohan as per Hindu Rites and Rituals on 11.12.1998. The respondent and his family treated the appellant with cruelty as the family of the appellant failed to fulfill the demand of dowry. Thereafter, F.I.R. was lodged registered as Case Crime No.3/2000, under Sections-498-A, 323, 506 SectionI.P.C. Section 3/Section4 of Dowry Prohibition Act, at Police Station-Mahila Thana, District-Lucknow regarding the said offences committed by the respondent and his family.

On 06.08.2001, the appellant was ousted from her in-laws. As the appellant had no source of livelihood, she filed a suit registered as Regular Suit No.369/2001 (Prem Kusum s/o Lalit Mohan vs. Lalit Mohan s/o late Umakant) for maintenance under Section 18 (1) of Hindu Adoptions and SectionMaintenance Act, 1956 (hereinafter referred to as “HAM Act of 1956”) against the respondent, which was allowed by judgment and decree dated 06.08.2001 passed by Additional Principal Judge, Family Court, Lucknow with a direction to the respondent to pay one-third of his salary to the appellant as maintenance.

Thereafter, the respondent filed a petition for review of the judgment and decree dated 06.08.2001 before the Family Court, Lucknow, which was dismissed by order dated 01.09.2005.

The appellant also filed a suit registered as Regular Suit No.370/2001 against the respondent for recovery of articles.

The respondent challenged the order dated 06.08.2001 passed by trial Court by filing Writ Petition No.2578 (MS) of 2001 before this Court, which was dismissed by order dated 01.08.2002 on the ground of alternative remedy of appeal.

In the light of the order dated 01.08.2002 passed by this Court, the respondent filed an appeal bearing First Appeal Defective No.1 of 2003 against the judgment dated 06.08.2001 passed under Section 18 (1) of HAM Act of 1956, which was dismissed as not pressed vide order dated 08.09.2016.

The appellant also filed a suit registered as Suit No.408/2003 under Section 13 of Hindu Marriage Act, 1955 (in short “Act of 1955”) for divorce on the ground of physical and mental cruelty committed by the respondent on the appellant. The decree of divorce dated 01.09.2005 was passed in favour of the appellant in Suit No.408 of 2003 and against which, the respondent filed First Appeal under Sectionsection 19 of Family Courts Act, which was dismissed by order dated 12.04.2006.

The respondent also filed a suit under Section 25 of HAM Act of 1956 for cancellation of the decree passed under Section 18 (1) of HAM Act of 1956, which was dismissed as withdrawn.

In the year 2009, the appellant filed Execution Case No.6 of 2009  for execution of decree dated 06.08.2001. In the said execution case, the respondent filed an application before the Family Court, Lucknow with the allegation that the appellant had re-married with other person after divorce, which was rejected by order dated 04.09.2012 and against which, the respondent filed an appeal bearing Appeal No.1075 of 2012 before this Court, which was dismissed by order dated 06.09.2016.

Thereafter, the respondent filed an application registered as Misc. Case No.1 of 2017 on 23.01.2017 under Section 18 (3) and 25 of HAM Act of 1956 for cancellation of the judgment dated 06.08.2001 passed in Original Suit No.369 of 2001. The respondent filed a Writ Petition No.23013 (MS) of 2017 before this Court for deciding the said application, which was disposed of with a direction to the trial Court to decide the same within time mentioned therein vide order dated 21.09.2017. Thereafter, an application was moved for recalling of the order dated 21.09.2017.

On 12.01.2018, this Court has passed a fresh order in Writ Petition No.23013 (MS) of 2017, which reads as under :-

“Heard Shri A.K.Bajpayee, learned counsel for the petitioner and Sri Murli Manohar Srivastava, learned counsel appearing on behalf of the respondent no. 2.

This petition has been filed for a direction to the Additional Principal Judge, Family Court, Lucknow to decide the application moved by the petitioner under Sectionsection 18 (3) and 25 of the Hindu Adoption and SectionMaintenance Act, 1956 in Regular Suit No. 369 of 2001, Smt. Prem Kusum Asthana v. Lalit Mohan expeditiously within a certain time frame.

On 21.9.2017 the petition was finally disposed of with a direction to the Court concerned to dispose of the application within the time mentioned therein.

Learned counsel for the respondent no.2 has vehemently submitted that the application moved by the petitioner for recall of the order dated 6.8.2001 is not maintainable. He has brought to the notice of this Court an order dated 22.11.2017 passed by the Court below whereby the maintenance which was being paid to the respondent no.2 has been stopped purportedly in the light of the order dated 21.09.2017 passed by this Court earlier. Certified copy of the order dated 22.11.2017 is taken on record.

While passing the order dated 21.09.2017 this Court never intended that the maintenance which was being paid to the respondent no. 2 should be stopped. Since the order dated 21.09.2017 has been recalled, the order dated 21.09.2017 is also rendered ineffective.

At this stage Shri A.K. Bajpayee, learned counsel for the petitioner states that the petitioner would continue to pay maintenance to the respondent No. 2, which was being paid to her at the time the order dated 21.09.2017 was passed by this Court.

In view of the above, with the consent of the counsel for the parties this petition is finally disposed of with a direction to the petitioner to pay to the respondent no. 2 the same maintenance under the same arrangement as was being paid to her at the time the order dated 21.09.2017 was passed by this Court. The petitioner shall also pay the outstanding amount since September, 2017 by 31st January, 2018 and would continue to pay to the respondent no.2 maintenance till the time the application moved by the petitioner is finally disposed of.

The parties shall appear before the Additional Principal Judge, Family Court, Lucknow on 01.02.2018 alongwith a certified copy of this order.

The Court after verifying the fact that the outstanding amount has been paid by the petitioner would fix a date for hearing the matter and would do well to dispose of the application moved by the petitioner under Sectionsection 18 (3) and 25 of the Act for recall of the order 6.8.2001, strictly on merit, within a maximum period of three months thereafter without granting unnecessary adjournment to either of the parties.

In case of any default on the part of the petitioner, he would not be entitled to the benefit of this order.

Petition stands disposed of.”

On 05.02.2018, the appellant filed an application for compliance of the order dated 12.01.2018 passed by this Court in Writ Petition No.23013 (MS) of 2017 before the trial Court and on the same day, the trial Court passed an order on the said application for giving the maintenance to the appellant.

On 04.04.2018, respondent filed an application before the trial Court on the ground that the appellant is not entitled for any maintenance as the decree of divorce was passed on 01.09.2005.

On 05.05.2018, the respondent filed an application under Order 23 Rule 1 and Section 151 of C.P.C. for withdrawal of Case No.1/2017 filed by him under Section 18 (3) and 25 of HAM Act of 195.

On 19.05.2018, the trial Court passed an order that the respondent shall pay the arrears of maintenance from September, 2017 to January, 2018.

On 11.09.2018, the respondent filed an objection under Section 47 of C.P.C. in Execution Case No.6 of 2009 on the ground that the decree of maintenance has become in-executable after granting the divorce decree dated 01.09.2005. This is with a view to overcome the objection filed by the appellant against the application for recall of the order dated 19.05.2018 passed in Misc. Case No.1 of 2017, whereby the trial Court directed the respondent to pay the amount towards maintenance from September, 2017 to January, 2018.

In the year 2019, the respondent filed a Writ Petition No.16578 (MS) of 2019 before this Court with a praying for quashing of proceedings of Execution Case No.6/2009, which was decided by order dated 31.07.2019 with a direction that the respondent shall file fresh application under Section 47 of C.P.C. in Execution Case No.6/2009 and the trial Court shall decide the same within six weeks. On 05.08.2019, the respondent filed a fresh application under Section 47 of C.P.C. before the trial Court registered as Misc. Case No.5600001 of 2019.

The respondent again filed an application for withdrawal of Misc. Case No.1/2017 but the trial Court, without making any observation regarding the payment of amount towards maintenance, passed final order dated 29.08.2019

On 31.08.2019, the appellant filed her objection to the fresh application filed by the respondent under Section 47 of C.P.C. registered as Misc. Case No.5600001 of 2019.

On 19.09.2019, the Family Court, Lucknow passed the order holding that the the appellant is entiled for maintenance only till the divorce decree dated 01.09.2005 passed between the parties in Regular Suit No.408 of 2003 under Section 13 of Hindu Marriage Act.

Alleging that the order dated 19.09.2019 is illegal and bad in the eye of law, the present appeal has been filed under Section 19 of Family Courts Act, 1984.

Thus, after hearing learned counsel for the parties and perusal of available record, the core questions which are to be considered are as under :-

(a) Whether after granting the divorce decree datede 01.09.2005 under Section 13 of Hindu Marriage Act in Regular Suit No.408 of 2013, the appellant is entitled for maintenance under Section 18 (1) and 25 of HAM Act of 1956 or not ?

(b) What is the effect of dismissal of the application moved by the respondent under Section 25 of HAM Act of 1956.

(c) Whether the divorce decree passed under Section 13 of Hindu Marriage Act, will nullify the decree passed under Section 18 (1) of HAM Act of 1956.

(d) Whether pursuant to judgment dated 12.01.2018 passed by this Court in Writ Petition No.23013 (MS) of 2017, the appellant is entitled to maintenance.

In order to decide the controversy involved in the present case, it will be appropriate to go through the lower court records.

Office shall ensure that the lower court record will be available on the next date.

List in the week commencing 09.12.2019.

(Saurabh Lavania,J.) (Anil Kumar,J.)

Order Date :- 25.11.2019

Mahesh

 

 

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