9 Dec 2022 5:15 AM GMT
The Madhya Pradesh High Court, Indore Bench recently observed that appeal against an order passed while deciding an application for interim maintenance under Section 24 of the Hindu Marriage Act is maintainable under Section 19 of the Family Courts Act. The Division Bench comprising Justices Vivek Rusia and Amar Nath Kesharwani held that proceedings in an application filed under Section...
The Madhya Pradesh High Court, Indore Bench recently observed that appeal against an order passed while deciding an application for interim maintenance under Section 24 of the Hindu Marriage Act is maintainable under Section 19 of the Family Courts Act.
The Division Bench comprising Justices Vivek Rusia and Amar Nath Kesharwani held that proceedings in an application filed under Section 24 of HMA are independent of other proceedings either under Section 9 or 13 of the Act and hence the order passed while deciding the application is final in nature and not interlocutory-
The evidence for deciding the interim maintenance is separately recorded and can not be taken into consideration while deciding the main petition either filed under Section 9 or 13 of the Hindu Marriage Act. Therefore, proceedings initiated under Section 24 by filing an application either by the applicant or respondent are independent proceedings and the order passed in it is the final order, hence, the appeal under Section 19 of the Family Courts Act is maintainable…
Facts of the case were that the Appellant and Respondent were married but owing to marital discords, they got separated. After 12 years of separation, the Appellant moved an application for divorce on the ground of cruelty. On receipt of summons, the Respondent moved an application under Section 24 of HMA, seeking interim maintenance from the Appellant worth Rs 2 lakhs per month. Based on the pleadings and evidence, the family court awarded Rs.40,000 per month as interim maintenance and Rs.70,000 as litigation expenses in favour of the Respondent. Aggrieved, the Appellant preferred an appeal against the said order.
The Appellant submitted before the Court that the Respondent was a highly qualified Doctor and that she had been living in Mumbai for 10 years during their separation without seeking any maintenance money. Therefore, it was asserted that the maintenance awarded to the Respondent was unwarranted and was liable to be set aside.
Per contra, the Respondent submitted its objection regarding the maintainability of the appeal. It was argued that the impugned order was interlocutory in nature and therefore, no appeal would lie against the same under Section 19 of the Family Courts Act. With respect to the merits of the case, the Respondent filed a cross objection, seeking enhancement of the maintenance amount awarded to her vide the impugned order.
Dealing with the objection regarding the maintainability of the appeal, the Court opined that the final outcome of the proceedings in application filed under Section 24 of HMA have no bearing on any other proceedings being pursued by the parties involved-
So far as the provision of Section 24 of the Hindu Marriage Act is concerned, the husband or wife, as the case may be, can seek interim maintenance and litigation expenses during the pendency of the divorce petition. On the basis of evidence and material available on record, the Court may direct the opposite party to pay interim maintenance during the pendency of the proceedings. The amount payable by way of interim maintenance and litigation expenses is neither returnable nor recoverable after the conclusion of the main proceedings. Even said amount is not liable to be adjusted in the amount payable as permanent alimony. Even if the divorce petition is dismissed or allowed, the order passed under Section 24 of the Hindu Marriage Act shall not be merged into the final order.
Thus, the Court held that the order deciding an application moved under Section 24 of HMA is final in nature and therefore, an appeal against the same would be maintainable under Section 19 of the Family Courts Act. Accordingly, the objection raised by the Respondent was overruled.
The Court then examined the merits of the case. It observed that the Respondent had not once sought for maintenance whilst her separation with the Appellant for 12 years. However, she applied for it only after the divorce proceedings were initiated. The Court further noted that there was no merit in the submission put forth by the Respondent that despite her high qualifications, she was earning a meagre amount of Rs 7,000 per month-
The appellant and respondent are living separately since 2008. The appellant is residing in Gurugram and the respondent resides in Mumbai. She is maintaining herself for the last 12 years and never claimed any maintenance. She is a highly qualified doctor. She used to travel from Mumbai to Indore by flight as per her declaration. She travelled at least four times a year by flight, therefore, it cannot be said that she is surviving only on an income of Rs.7,000/- per month despite having such high qualifications which is much less than the minimum wage payable to a Class–IV labour.
With the aforesaid observations, the Court held that the interim maintenance awarded to the Respondent was on the higher side. Accordingly, the Court reduced the amount for interim maintenance to Rs. 10,000 per month and the litigation cost to Rs. 30,000.
Case Title: MR. NILENDRA SINGH PAWAR VERSUS DR. SMT. DEEPTI PAWAR
Case citation: 2022 LiveLaw (MP) 273
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