CR No.1159 of 2018 (OM) 1
241
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
Civil Revision No.1159 of 2018 (OM)
Date of Decision:08.02.2019
Surender Solanki
……Petitioner
Vs
Roopa @ Soni
….Respondent
CORAM: HON’BLE MR. JUSTICE RAJ MOHAN SINGH
Present:Mr. V.B. Aggarwal, Advocate
for the petitioner.
Mr. Archit Gupta, Advocate
for the respondent.
****
RAJ MOHAN SINGH, J.
[1]. Petitioner has preferred this revision petition against the
order dated 24.01.2018 passed by the Principal District Judge
Family Court, Gurugram dismissing the application under
Section 151 CPC for refund of amount of Rs.6 lakhs.
[2]. Marriage was solemnized between the petitioner and
respondent on 09.03.2014 at Delhi. The marriage could not
make any headway on account of differences. As a result of that
petition under Section 13-B of the Hindu Marriage Act, 1955
(hereinafter to be referred as ‘the Act’) was filed for decree of
1 of 8
17-02-2019 18:44:41 :::
CR No.1159 of 2018 (OM) 2
divorce by mutual consent on 27.07.2015, wherein joint
statement of the parties was recorded at the first motion stage.
An amount of Rs.6 lakhs was paid to the respondent as per the
settlement (according to the petitioner). The case was
adjourned for 29.01.2016 for second motion. On the date of
second motion, respondent did not appear and the case was
adjourned for 16.02.2016. Even on the adjourned date,
respondent did not appear and the petition was dismissed due
to non-appearance of the respondent.
[3]. Thereafter petitioner filed regular petition under Section
13 of the Act for decree of divorce on the ground of cruelty. In
this petition, petitioner moved an application under Section 151
CPC for seeking direction to the respondent to return the
amount of Rs.6 lakhs which was received at the stage of first
motion in the petition under Section 13-B of Act.
[4]. In the proceedings under Section 24 of the Act, an
amount of Rs.4,000/- per month has been awarded as
maintenance pendente lite besides Rs.2200/- as litigation
expenses vide order dated 22.11.2016. In paras No.2 and 3 of
the said order following facts were noticed:-
“2. The applicant-respondent-wife Roopa has sought
maintenance pendent lite from the petitioner-husband on the
plea that the parties were married on 9.3.2015 at Nangloi Delhi.
No child was born from this wedlock. The petitioner-husband is2 of 8
17-02-2019 18:44:41 :::
CR No.1159 of 2018 (OM) 3
not making any payment of maintenance to her. She has alleged
that her husband has always treated her with cruelty. She has
no independent source of income, whereas the petitioner –
husband is employed in a private company at Rs.Six Lacs per
annum. He had fraudulently tried to take a divorce from her by
mutual consent in which he had paid her Rs. Six Lacs. Besides
this he has never paid her any amount. It has, therefore, been
prayed that she be awarded maintenance pendent lite.
The petitioner – husband admitted the relationship
between the parties as also the fact that they were living
separately and that he has paid her Rs.Six Lacs in a petition for
divorce by mutual consent. After taking the amount, she refused
to make the joint statement on second motion. He claimed that
the applicant had left him. It was also disclosed during the
course of arguments that the applicant had been teaching in a
private school at Rs.15,000/- per month. It was, therefore,
prayed that the application be dismissed.
3. In this case, the relationship between the parties is not
in dispute and it is admitted that the wife is living in her parental
home. During the course of arguments, when a specific query
was put to her, the respondent who is present in the court
admitted that she had been paid Rs. Six Lacs in a petition for
mutual consent but she claimed that the petitioner- husband had
tried to take a divorce from her forcibly and fraudulently due to
which she had not made the statement on second motion. The
said amount is still with her. She also stated that she was
unemployed and had never worked but she had trained to teach
in a school for a short while. The petitioner has denied that he
earns Rs. Six Lacs per annum but he has conveniently not
disclosed his exact income. When his counsel was questioned in
this regard during arguments, he tried to be evasive. Therefore,
keeping in view of the social status of the parties, the minimum
income of the petitioner – husband must be taken to be
Rs.30,000/- per month and it must be borne in mind for the3 of 8
17-02-2019 18:44:41 :::
CR No.1159 of 2018 (OM) 4
present purposes that the applicant – wife is in possession of
Rs.Six lacs which were paid to her in a petition for divorce by
mutual consent which was not finalized.
The provision under Section 24 of HMA provides for
maintenance for a wife who is unable to maintain herself. It is a
provision made for preventing vagrancy and destitution. In the
instant case, the applicant has claimed that she has no source of
income and she has been thrown out of the matrimonial home by
the husband who used to treat her cruelty.
Keeping in view the facts and circumstances of the
case especially the admitted fact that the parties are residing
separately and the applicant is the legally wedded wife of the
petitioner-husband, this Court is of the considered opinion that
she is very much entitled to maintenance pendent lite. In the
interest of justice and having regard to the social and economic
standard of the parties, this Court is of the considered opinion
that the applicant is entitled to maintenance pendent lite @
Rs.4,000/- per month from the date of filing of the application i.e.
14.07.2016 besides Rs.2200/- as litigation expenses. The
application is allowed in the above terms.”
[5]. Perusal of the aforesaid paragraphs would show that
the factum of payment of Rs.6 lakhs was noticed by the Court
while awarding maintenance pendente lite @ Rs.4000/- per
month from the date of filing of the application. Perusal of the
aforesaid order would also show that the entitlement of the
respondent to receive maintenance pendente lite was
appreciated by the Family Court, even after noticing payment of
Rs.6 lakhs and the case was adjourned for payment and for
entire evidence of the petitioner. It was also ordered that the
4 of 8
::: Downloaded on – 17-02-2019 18:44:41 :::
CR No.1159 of 2018 (OM) 5
payment shall be the condition precedent for further prosecution
of the case by the petitioner/husband. The order dated
22.11.2016 passed by Family Court, Gurugram has not been
assailed by the petitioner in any manner.
[6]. At the time of issuance of notice of motion on
20.02.2018, learned counsel for the petitioner relied upon
Deepak Singh vs. Pooja, 2016(2) R.C.R. (Civil) 742 and
contended that refusal to make statement on second motion by
the respondent wife would entail in return of the amount
received by her at the first motion stage.
[7]. Learned counsel for the respondent vehemently
submitted that the petitioner has not paid anything towards
arrears of maintenance. Petitioner has misappropriated
Istridhan of the respondent and there are many claims of the
respondent for which petitioner can be held liable to answer in
the pending litigation. Respondent is still legally wedded wife of
the petitioner and during subsistence of matrimonial status, the
petitioner has contracted second marriage with one Jyoti on
13.07.2016. This fact has been admitted by the petitioner in his
cross-examination in a criminal complaint while appearing as
PW-1.
[8]. Learned counsel also pointed out that the order dated
5 of 8
17-02-2019 18:44:41 :::
CR No.1159 of 2018 (OM) 6
22.11.2016 passed by the District Judge, Family Court
Gurugram has not been assailed by the petitioner in any
manner. In the said order factum of payment of Rs.6 lakhs was
duly noticed and despite that award of maintenance pendente
lite to the tune of Rs.4000/- per month was made besides
Rs.2200/- as litigation expenses. In view of above, the amount
of maintenance is not subject to adjustment in the amount of
Rs.6 lakhs.
[9]. I have considered the rival contentions of learned
counsel for the parties.
[10]. There cannot be any dispute with regard to the ratio
laid down in Deepak Singh’s case (supra) relied upon by
learned counsel for the petitioner at the time of issuance of
notice of motion.
[11]. With regard to the cross-examination of the petitioner in
a criminal complaint while appearing as PW-1, wherein factum
of second marriage with one Jyoti on 13.07.2016 was admitted,
this Court is not in a position to comment upon legality or
otherwise of such evidence in the present proceedings as the
competent Court would take notice of such evidence at the time
of adjudication of criminal complaint/case on merits. Fact
remains that the petitioner has not approached the same Court
6 of 8
17-02-2019 18:44:41 :::
CR No.1159 of 2018 (OM) 7
which has decided the petition under Section 13-B of the Act. In
terms of Order 23 Rule 3 CPC, the petitioner could have
approached the Court by way of moving appropriate application
for refund of the amount, if any in the event of non-adherence of
the compromise by the respondent. Maintainability of the
application under Section 151 CPC in subsequent petition under
Section 13(1)(1A) of the Act has been opposed by learned
counsel for the respondent.
[12]. It appears that Family Court is pressing hard for
payment of arrears of maintenance and in the even of non-
payment of the same, defence of the petitioner may be struck
off besides taking other coercive method for realization of the
amount in question. In the aforesaid context orders dated
11.04.2018 passed by the Principal District Judge, Family Court,
Gurugram can be noticed. On the one hand, respondent has
taken an amount of Rs.6 lakhs at the first motion stage and has
not responded to the stage of second motion. On the other
hand, petitioner has not approached the same Court in terms of
Order 23 Rule 3 CPC, which had passed the order under
Section 13-B of the Act. The order dated 22.11.2016 also
indicated factum of receiving Rs.6 lakhs by the respondent
which was noticed by the Family Court, still the award of
Rs.4,000/- per month as maintenance pendente lite besides
7 of 8
::: Downloaded on – 17-02-2019 18:44:41 :::
CR No.1159 of 2018 (OM) 8
Rs.2200/- as litigation expenses was made and the said order
has not been assailed by the petitioner.
[13]. In view of above situation, this Court in exercise of
supervisory jurisdiction under Article 227 of the Constitution of
India, deems it appropriate to allow adjustment of amount
towards arrears of maintenance pendente lite and any other
assessed future liability of the petitioner arising out of
matrimonial discord.
[14]. In view of above arrangement, proceedings under
Section 13(1)(1A) of the Act may go on and coercive method
against the petitioner for payment of amount in question may
not be insisted upon till the amount of Rs.6 lakhs is exhausted in
accordance with law for which both the parties would be at
liberty to file their respective calculations before the Family
Court.
[15]. Petition stands disposed of in the aforesaid terms.
February 08, 2019 (RAJ MOHAN SINGH)
Atik JUDGE
Whether speaking/reasoned Yes/No
Whether reportable Yes/No
8 of 8
::: Downloaded on – 17-02-2019 18:44:41 :::