The Nagpur bench of Bombay High Court has remanded a divorce case back to the family court after the family court granted divorce without deciding interim application for maintenance pendente lite filed by the wife.
"The directions are also required to be issued to the trial Court to decide the interim application preferred by the appellant for maintenance pendente lite in accordance with the provision of Hindu Marriage Act", the court said.
Justice Urmila Joshi Phalke set aside a divorce decree in a family appeal preferred by a wife against the trial court decision granting decree of divorce without deciding her maintenance application.
The court said that section 24 of the Hindu Marriage Act, 1955 (HMA) is a benevolent and gender-neutral provision to provide maintenance and litigation expenses to a spouse who doesn't have independent income to maintain themselves during the pendency of the case.
The appellant and respondent are a married couple and have two children. Due to a matrimonial dispute, appellant started living with her mother in Nanded. The husband filed for divorce in the Family Court, Akola alleging cruelty by his wife towards him and his family. Wife denied the allegations and filed an interim application for maintenance pendente lite under section 24 of the HMA.
The appellant was absent on three of the hearings. The family court proceeded without cross-examination of the husband and granted the decree of divorce. The wife appealed before the High Court on the ground that the trial code decided the divorce petition without deciding her application for maintenance.
Advocate Shilpa Tapadiya for the appellant submitted that the trial court should have considered that the appellant is a resident of Nanded and was required to attend the case at Akola. She has to maintain two children therefore application for maintenance pendente lite should have been decided. The divorce petition was disposed of without giving her proper opportunity to present her case.
Advocate Ravikumar Tiwari for the husband submitted that the wife failed to appear and cross examine the respondent despite sufficient opportunity being available to her. Therefore, the family court proceeded with the matter.
The court examined the facts on record and found that the presiding officer of the family court decided the divorce petition without deciding the interim application for maintenance on the ground that the appellant remained absent despite having sufficient opportunity to appear before the court.
The court noted that not only the appellant was absent during the proceedings, but on several occasions both husband and wife were absent. The divorce petition was decided without deciding the interim application for maintenance pendente lite (which otherwise has to be decided within 60 days as per section 24). No opportunity of defending herself was given to the wife. Section 24 being the benevolent provision, the application for maintenance pendente lite should have been decided, it held.
The court held that it is necessary to give proper opportunity to the appellant to defend the grounds of divorce by presenting evidence. The court remanded the matter back to the family court for fresh consideration. The court also directed the family court to decide the interim application for the maintenance pendente lite.
Case no. – Family Court Appeal No. 04 of 2022
Case title – Chanda v. Prakashsingh Rathod
Citation : 2022 LiveLaw (Bom) 346