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Home > Judiciary > Others > Application for maintenance (U/S 24-HMA) has to be decided first before an order for filing WS is passed against the applicant



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Application for maintenance (U/S 24-HMA) has to be decided first before an order for filing WS is passed against the applicant

Posted on 24 October 2013 by Guest

Court

High Court of Delhi



Brief

It is very unfortunate litigation between the husband/petitioner and wife/respondent who are Advocates of the Supreme Court and of this Court. They got married on 25th January, 1996. However, in the year 2004, the husband, who is the petitioner herein, had a health problem and he underwent various surgeries including removal of large intestine and rectum which prevented him from continuing his active practice. In the year 2009 the respondent/wife filed a divorce petition under Section 13(1)(i-a) of the Hindu Marriage Act, 1955 and a notice was issued to the husband for 9th July, 2009 who appeared and moved an application under Section 24 of the Hindu Marriage Act, 1955 for grant of maintenance and litigation expenses from the wife to enable him to contest the matter and to meet his medical expenses. The said proceedings continued for some time. The petitioner also filed an application under Order 11 CPC. Thereafter, the respondent filed an application under Order VIII Rule 10 CPC for striking off defence of the petitioner.



Citation

PRAMOD SAIGAL ….. Petitioner Through Ms. Anu Narula, Adv. Versus AMRITA SANGHI ….. Respondent Through Mr. Sanjeev Sahay, Adv.



Judgement

IN THE HIGH COURT OF DELHI AT New Delhi

Order pronounced on: October 11, 2013

 

PRAMOD SAIGAL  ….. Petitioner

Through    Ms. Anu Narula, Adv.

 

Versus

 

AMRITA SANGHI  ….. Respondent

Through  Mr. Sanjeev Sahay, Adv.

 

CORAM:

HON’BLE MR. JUSTICE MANMOHAN SINGH

 

It is very unfortunate litigation between the husband/petitioner and wife/respondent who are Advocates of the Supreme Court and of this Court. They got married on 25th January, 1996. However, in the year 2004, the husband, who is the petitioner herein, had a health problem and he underwent various surgeries including removal of large intestine and rectum which prevented him from continuing his active practice. In the year 2009 the respondent/wife filed a divorce petition under Section 13(1)(i-a) of the Hindu Marriage Act, 1955 and a notice was issued to the husband for 9th July, 2009 who appeared and moved an application under Section 24 of the Hindu Marriage Act, 1955 for grant of maintenance and litigation expenses from the wife to enable him to contest the matter and to meet his medical expenses. The said proceedings continued for some time. The petitioner also filed an application under Order 11 CPC. Thereafter, the respondent filed an application under Order VIII Rule 10 CPC for striking off defence of the petitioner.

 

The petitioner/husband also filed an application under Section 151 CPC seeking various directions including that the application under Order VIII Rule 10CPC be deferred till the adjudication of maintenance claim of the petitioner.

 

In the impugned order which has been challenged by the petitioner, the learned trial court granted final opportunity to the petitioner to file the written statement within 10 days failing which adverse orders were to be passed against the petitioner/husband. In the application under Section 24 of the Hindu Marriage Act, 1955 both the parties were directed by the learned trial court to file the affidavits of their respective incomes alongwith income proof, salary statement, ITR’s, details of movable and immovable properties, bills, credit card statements etc.

 

At the outset, I thought the matter should be resolved in view of the fact that both are Advocates and they are from the same Bar Association. However, despite of efforts, the settlement could not be materialized between the parties. I have heard the learned counsel for both the parties.

 

The main contention of Ms. Anu Narula, counsel appearing on behalf of the petitioner/husband, is that in view of the settled law when the maintenance application under Section 24 of Hindu Marriage Act, 1955 for grant of maintenance and litigation expenses is pending, the court cannot compel the petitioner/applicant to file the written statement unless an order is passed in the said application. Thus, according to her the petitioner is expected to file the written statement only after the amount is paid to the petitioner. She referred to a large number of judgments in support of her contentions. It is not necessary to discuss all the judgments because of the reason that I am of the view that each case depends upon its own circumstances.

 

No doubt, in impracticable circumstances of the applicant in the application under Section 24 of the Hindu Marriage Act, I agree with the learned counsel for the petitioner that the court cannot insist the applicant to file the written statement unless the litigation expenses are deposited. However, in case such situation is not available in a particular case then the court can pass the order for filing the written statement in the matter of divorce filed by one of the parties.

 

The learned counsel for the respondent has referred to para 13 of the maintenance application filed by the petitioner wherein the husband/ petitioner has admitted that at present his average monthly income is about Rs.15000/- although it is mentioned that even the same is quite irregular.

 

Learned counsel for the petitioner states that the petitioner owns no other movable or immovable properties besides one Santro Car, plot in Goa (the papers whereof are in possession of the wife), and a three bed room DDA flat at Jasola Vihar, New Delhi, purchased by the petitioner entirely from his own funds, savings and sale proceeds of his other property at Sheikh Sarai, New Delhi. Since the petitioner has no regular source of income, thus the petitioner is insisting that unless the application under Section 24 of the Hindu Marriage Act, 1955 is decided, the petitioner not be expected to file the written statement in the divorce petition filed by the wife/respondent.

 

It is true that there are two prayers made in the application, one is maintenance claim from the wife and second is litigation expenses. The respondent is opposing both prayers and is not ready to deposit either, in view of various reasons referred by the learned counsel for the respondent in court.

 

Considering the overall facts and circumstances of the case and without deciding anything on merits of the case, the present petition is disposed of with the following directions:

 

It is not in dispute that the pleadings in the pending application under Section 24 of the Hindu Marriage Act, 1955 filed by the petitioner are complete. Both the parties were directed to file the affidavits as mentioned above. Let the same, if any, be filed within two weeks from today. The said application of the petitioner be disposed of at early date as Court hopes that at least the said application would be disposed of by the learned trial court on or before 31st December, 2013.

 

As soon as the above said application is decided, the petitioner is granted four weeks time to file the written statement as last opportunity irrespective of findings which would be arrived at by the learned trial court.

 

The petition as well as the pending applications are disposed of.

 

Dasti, under the signatures of the Court Master.

 

 

  

Sd/-

(MANMOHAN SINGH)

JUDGE

 OCTOBER 11, 2013





Tags :- application maintenanceu s 24 hmadecided first order filing ws passed against applicant




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2 Comments for this Judiciary



Sanjeev Thakur

Sanjeev Thakur

Wrote on 30 November 2013

Good judgement, but the advocates should resolve the matter at Bar



Vishwanath tripathi

Vishwanath tripathi

Wrote on 14 November 2013

nice information













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