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Surender Solanki vs Roopa @ Soni on 8 February, 2019

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

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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 is

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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 the

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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

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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

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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

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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

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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

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