Allahabad High Court
Shashi Bhushan Tiwari vs Seema Tiwari And Another on 6 November, 2024
Author: Saumitra Dayal Singh
Bench: Saumitra Dayal Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Neutral Citation No. - 2024:AHC:174331-DB Court No. - 39 Case :- FIRST APPEAL DEFECTIVE No. - 151 of 2024 Appellant :- Shashi Bhushan Tiwari Respondent :- Seema Tiwari And Another Counsel for Appellant :- Rajkapoor Upadhyay Counsel for Respondent :- Amrita Singh Hon'ble Saumitra Dayal Singh,J.
Hon'ble Donadi Ramesh,J.
1. Heard Shri Rajkapoor Upadhyay, along with Shri Ashok Kumar Mishra, learned counsel for the appellant and Shri Pradeep Kumar Sharma along with Ms. Amrita Singh, learned counsel for the respondent.
2. Application No. Nil filed today by the appellant supported by personal affidavit of the appellant, is taken on record. At present four appeals have been filed by the appellant. Those are:-
(i). First Appeal No.788 of 2024 arising from order dated 05.07.2024 passed by the Principal Judge, Family Court, Ballia in Case No.07 of 2022 (Seema Tiwari Vs. Shahsi Bhushan Tiwari) rejecting application No.22Gha.
(ii). First Appeal No.809 of 2024 filed by the appellant -Shashi Bhushan Tiwari, against the order dated 12.10.2023 passed by the Principal Judge, Family Court, Ballia, whereby the learned court below has conditionally allowed application moved by the appellant under Order 9 Rule 13 read with Section 151 C.P.C., providing for conditional recall of the ex-parte order dated 17.05.2022 in O.S. No.439 of 2017 being proceedings under Section, 18/ 20 of the Hindu Adoptions and Maintenance Act, 1956.
(iii). First Appeal No.951 of 2024 filed by the appellant- Shashi Bhushan Tiwari, against the order dated 22.08.2024 in O.S. No.254 of 2016 (Shashi Bhushan Tiwari Vs. Seema Tiwari) rejecting the divorce suit instituted and,
(iv). First Appeal Defective No.151 of 2024 has been filed by the appellant -Shashi Bhushan Tiwari, arising from the order dated 17.05.2022 passed by the Principal Judge, Family Court, Ballia, under Sections 18 and 20 of the Hindu Adoptions and Maintenance Act, 1956 providing for maintenance allowance at the rate of Rs.3,000/- per month to the minor daughter born to the parties and further requiring the appellant to deposit Rs. 5,00,000/- for her marriage expenses.
3. First Appeal Defective No.151 of 2024 has been disposed of by following order dated 28.08.2024:-
"1. Heard Shri Rajkapoor Upadhyay, learned counsel for the appellant and perused the record. Ms. Amrita Singh has filed appearance on behalf of the respondents.
2. Defect reported is seen to have been cured.
3. Present appeal has been filed under Section 19 of the Family Courts Act, 1984, arising from the order dated 17.05.2022 passed by learned Principal Judge, Family Court, Ballia, in Matrimonial Case No. 439 of 2017 (Smt. Seema Tiwari and another v. Shashi Bhushan Tiwari), whereby the learned trial court has awarded Rs. 3000/- per month towards monthly maintenance to the respondent no. 2 who is minor child born to the appellant and respondent no. 2. Further, the learned trial court has awarded Rs. 5,00,000/- towards marriage expenses to the respondent no. 1.
4. Having heard learned counsel for the appellant and perused the record, we find no good ground to offer any interference in the order passed by the learned trial court.
5. Considering the fact that the appellant is a government employee working in the State Secretariat having sufficient income, the award of monthly maintenance @ Rs. 3000/- per month is wholly minimal and necessary to ensure proper upbringing of child born to the appellant and the respondent no. 1. Similarly the provision for marriage expenses Rs. 5,00,000/- provided by the impugned order is also wholly reasonable and proper. At the same time, three months' time period granted by the learned trial court to make payment of Rs. 5,00,000/- in favour of the respondent no. 1 has just expired. Therefore, subject to the appellant complying with the other terms of the order i.e. deposit of Rs. 3000/- per month towards monthly maintenance to the respondent no. 2 such that the arrears of any may be cleared on or before 30.09.2024 and his continuing to pay that amount as and when it becomes due, the appellant shall have further time up to 31.12.2024 to pay up the amount Rs. 5,00,000/- towards marriage expenses to the respondent no. 1.
6. In view of the above, the appeal stands disposed of."
4. Thereafter, First Appeal No. 788 of 2024 came before us. Detailed order dated 27.09.2024 passed in that appeal reads as below:-
"1. Mr. Ashok Kumar Mishra, holding brief of Mr. R.K. Upadhyay prays for accommodation. Mr. Pradeep Kumar Sharma along with Ms. Amrita Singh have raised serious preliminary objection. They would submit that the appellant as also the counsel appearing for appellant have committed serious misconduct in the course of these proceedings.
2. In view of the preliminary objection raised, to ascertain the prima facie correctness of the submissions being advanced, we have called for perusal of the record of First Appeal Defective No. 151 of 2024 and First Appeal No. 809 of 2024, for perusal.
3. We may first note the facts leading to the objections, in brief. Respondents instituted proceedings under Section 18 & 20 of the Guardians & Wards Act, 1890. Thus, merit order was passed in proceedings in Matrimonial Case No. 439 of 2017 (Seema Tiwari vs Shashi Bhushan Tiwari). That application was disposed of on 17.5.2022 providing for maintenance at the rate Rs. 3,000/- per month to the daughter namely Shubhangi born to the parties. Further, the appellant was directed to pay Rs. 5,00,000/- towards her marriage expenses. That order was challenged by the appellant in First Appeal Defective No. 151 of 2024 (Shashi Bhushan Tiwari vs Seema Tiwari & Anr.). Perusal of that record reveals that the affidavit filed in support of the appellant in that appeal was sworn by Shashi Bhushan Tiwari identified by Mr. Raj Kapoor Upadhyay, learned counsel for the appellant. It is dated 8.11.2023. Defect was reported with respect to payment of court fees. On that, the matter remained pending. On that issue being dealt with, the appeal was received in Court on 28.8.2024.
4. The appeal was disposed of on 28.8.2024 with the following order.
"1. Heard Shri Rajkapoor Upadhyay, learned counsel for the appellant and perused the record. Ms. Amrita Singh has filed appearance on behalf of the respondents.
2. Defect reported is seen to have been cured.
3. Present appeal has been filed under Section 19 of the Family Courts Act, 1984, arising from the order dated 17.05.2022 passed by learned Principal Judge, Family Court, Ballia, in Matrimonial Case No. 439 of 2017 (Smt. Seema Tiwari and another v. Shashi Bhushan Tiwari), whereby the learned trial court has awarded Rs. 3000/- per month towards monthly maintenance to the respondent no. 2 who is minor child born to the appellant and respondent no. 2. Further, the learned trial court has awarded Rs. 5,00,000/- towards marriage expenses to the respondent no. 1.
4. Having heard learned counsel for the appellant and perused the record, we find no good ground to offer any interference in the order passed by the learned trial court.
5. Considering the fact that the appellant is a government employee working in the State Secretariat having sufficient income, the award of monthly maintenance @ Rs. 3000/- per month is wholly minimal and necessary to ensure proper upbringing of child born to the appellant and the respondent no. 1. Similarly the provision for marriage expenses Rs. 5,00,000/- provided by the impugned order is also wholly reasonable and proper. At the same time, three months' time period granted by the learned trial court to make payment of Rs. 5,00,000/- in favour of the respondent no. 1 has just expired. Therefore, subject to the appellant complying with the other terms of the order i.e. deposit of Rs. 3000/- per month towards monthly maintenance to the respondent no. 2 such that the arrears of any may be cleared on or before 30.09.2024 and his continuing to pay that amount as and when it becomes due, the appellant shall have further time up to 31.12.2024 to pay up the amount Rs. 5,00,000/- towards marriage expenses to the respondent no. 1.
6. In view of the above, the appeal stands disposed of."
5. At that stage, learned counsel for the appellant did not inform the Court that the order impugned in the said appeal dated 17.5.2022 had been made subject matter of proceedings under Order 9 Rule 13 Code of Civil Procedure, 1908 and further that such application filed by the appellant had been conditionally allowed vide order dated 12.10.2023 passed by learned court below. In that, the learned court below provided that the order dated 17.5.2022 would stand recalled subject to deposit one-third of the arrears of the maintenance amount and further deposit of Rs. 3,00,000/- towards marriage expenses of the daughter born to the parties.
6. Not only Mr. R.K. Upadhyay, learned counsel for the appellant did not inform the Court about that order but on the very next date i.e. 29.8.2024, he pressed another appeal filed by the same appellant being First Appeal Defective No. 436 of 2024 (regular no. - 809 of 2024) filed, to challenge the order dated 12.10.2023. Perusal of that record reveals that it is also supported by the affidavit of the appellant Shashi Bhushan Tiwari dated 12.1.2024. In that affidavit also, the deponent had been identified by Mr. R.K. Upadhyay, Advocate. Thus, on the relevant date, the appellant and his counsel were well aware of the order dated 28.8.2024 and also the fact that the order dated 17.5.2022 had been conditionally recalled by the learned court below on 12.10.2023. Still, they chose not to inform the Court of those facts either through affidavit or during oral submissions and obtained the order dated 28.8.2024 in First Appeal Defective No. 151 of 2024 (noted above).
7. Further, Mr. R.K. Upadhyay, Advocate, chose not to inform the Court (on 29.8.2024) about the order dated 28.8.2024 passed in First Appeal Defective No. 151 of 2024. On that, the delay in filing First Appeal Defective No. 436 of 2024 was condoned and notice issued to the respondent fixing the date 17.10.2024.
8. First, in face of order dated 12.10.2023 passed by the learned court below, the appellant and his counsel may never have pressed First Appeal Defective No. 151 of 2024, on 28.09.2024. In any case, once the appeal filed against the order dated 17.5.2022 stood disposed of in the terms noted above, it may have remained the bounden duty of the learned counsel for the appellant to inform the Court about that fact and/or to have not pressed the First Appeal No. 809 of 2024.
9. Not stopping at that, the present appeal has been filed by the appellant Shashi Bhushan Tiwari against the order dated 5.7.2024 passed in execution proceedings to enforce the order dated 12.10.2023 passed by learned court below. The present appeal is also supported by the personal affidavit of the appellant Shashi Bhushan Tiwari. It is dated 8.11.2023 wherein the appellant has again been identified by Mr. R.K. Upadhyay, Advocate. This appeal has also been pressed in as much as on the case being called out, Mr. Ashok Kumar Mishra only prayed for an adjournment.
10. In such facts the preliminary objection has been raised by the learned counsel for the respondent that the appellant and his counsel have wholly misconducted themselves - to the extent they may have exposed themselves to proceedings for contempt of the Court and other actions under other laws.
11. Before we proceed further in the matter, it is desirable that the appellant as also his counsel Mr. R.K. Upadhyay may file their respective personal affidavits (in this appeal), and explain why exemplary action may not be taken against both of them for their conduct noted above.
12. Put up on 17.10.2024 peremptorily in top ten cases. along with the record of First Appeal Defective No. 151 of 2024 and First Appeal No. 809 of 2024."
5. Thereafter, further order dated 18.10.2024 was passed in that appeal. It reads as below:-
"1. Today, Sri Rajkapoor Upadhyay, learned counsel for the appellant states, since the appellant failed to comply with the order dated 12.10.2024 passed by the learned Court below under Order IX Rule 13 CPC, that conditional order lost its force, on that default made by the appellant. Therefore, the original order dated 17.05.2022 remained in force on 28.08.2024, when he had pressed First Appeal Defective No. 151 of 2024.
2. As to the conduct offered by learned counsel for the appellant on 29.08.2024, while pressing First Appeal Defective No. 436 of 2024 (regular no. 809 of 2024), he would submit that there is grave error on his part inasmuch as he could not appear in Court on that date and it remained from his junior colleague to inform the correct facts to Court.
3. However, that explanation cannot be accepted as still thereafter First Appeal No. 788 of 2024 (present appeal) has been pressed by the same counsel. That appeal has arisen against the order passed by the learned Family Court dated 12.10.2023 in execution proceeding arising from the order dated 12.10.2023 passed under Order IX Rule 13 CPC.
4. Once, learned counsel for the appellant now states that the order dated 12.10.2023 did not survive on 28.08.2024, it is not possible to accept the explanation being furnished, for that reason First Appeal Defective No. 151 of 2024 had been pressed on 28.08.2024 or that there was inherent bonafide on the part of the learned counsel for the appellant in not informing the Court of such facts.
5. On the other hand, Sri Pradeep Kumar Sharma, holding brief of Ms. Amrita Singh, learned counsel for the respondent states that on 15.10.2024, the appellant pressed Application No. 34 gha stating therein he had taken steps to file an appeal against the order passed by this Court dated 28.08.2024 in First Appeal Defective No. 151 of 2024. He had sought adjournment on that count.
6. In that regard, on query made, learned counsel for the appellant and the appellant (who is present in Court) state that no such appeal has been filed or is proposed to be filed by the appellant. At the same time, we also notice that there are recoveries of maintenance allowance standing against the appellant with respect to that allowance claimed by his wife, son and daughter, under Section 125 Cr.P.C., Protection of Women from Domestic Violence Act, 2005 and the Guardians and Wards Act, 1890, respectively.
7. Before we consider the matter any further, let proper affidavit be filed by the respondent, indicating in tabular form all maintenance allowance awarded to the respondent and her two children together with reference to the date from which such amounts have been awarded. The affidavit of the respondent shall also disclose the bank account in which all payments are to be made.
8. Such affidavit may also disclose total payment that may have been received by the respondent against various orders providing for maintenance allowances to the respondent and her two children.
9. Let such affidavit be served on the appellant by 21st October, 2024 by 5.00 pm. The appellant may also file her personal affidavit in response thereto by 22nd October, 2024 amongst other, enclosing photocopy of his latest pay slip.
10. Put up on 23rd October, 2024, in top ten cases. On that date, the appellant shall remain present in Court.
11. As to the further action to be taken in view of the last order, the matter may be considered on the next date."
6. Last on 23.10.2024, the following order came to be passed in First Appeal No.788 of 2024. It reads as below:-
"1. Heard Shri Rajkapoor Upadhyay, learned counsel for the appellant along with appellant (in person) and Shri Pradeep Singh, Advocate holding brief of Ms. Amrita Singh, learned counsel for the respondent.
2. Affidavits of compliance have been filed by both the parties. They are taken on record.
3. Upon brief hearing, it has been proposed by learned counsel for the appellant that the appellant may be granted time to clear the entire default of maintenance amount awarded under the Hindu Adoptions and Maintenance Act, 1956 which has been computed at Rs.3,30,000/- as on date, Rs.6,000/- having been paid recently. It has been further proposed that the appellant may be granted one more opportunity to make amends vis a vis his conduct in the past. It that regard, it has been proposed that the appellant is willing to pay monthly maintenance allowance at the rate of Rs.8,000/- per month to the respondent and to the two children born to the parties, from month of November, 2024 onwards. As to the amount Rs.5 lakhs required to be deposited for the marriage expense of the daughter born to the parties, the appellant undertakes to deposit Rs.6 lakhs in place of Rs.5 lakhs as directed by the learned court below to compensate the loss of interest suffered by the respondent.
4. The above offer has been made by the learned counsel appearing for the appellant in the presence of the appellant, upon his instructions. The same has been accepted by learned counsel for the respondent after obtaining instructions from his client.
5. In view of the above, put up this case on 25.10.2024, amongst top ten cases, to allow the appellant to file his proper affidavit with respect to his statement noted above. Respondent may also inform her bank account details.
6. Put up this case with First Appeal No.951 of 2024, on the date fixed."
7. In compliance to the above, the appellant has filed application No. Nil supported by his personal affidavit. In that it has been stated as below:-
"3. That the appellant has been filed compliance report on 05.11.2024 but the payment of Rs.3,30,000/- has not been disclosed regarding process of payment of it.
4. That the appellant has been admitting to provide payment by NPS or loan of the bank within six month.
5. That as per order dated 23.10.2024 total amount is Rs.6,00,000 + 3,30,000/- (arrear), total amount of Rs.9,30,000/- pay to respondent no.1 within six months by way of N.P.S. or bank loan.
6. That the Hon'ble Court may kindly be pleased to pass the order directing to State Officer Rajya Sampatti Adhikari deducted the amount of NPS by the applicant.
7. That the monthly amount of Rs.8,000/- per month is regularly paying by the appellant to the respondent no.1."
8. On query made, learned counsel for the respondents stated that they are agreeable to the terms now offered. Thus, the respondent agreed that subject to Rs.3,30,000/- being paid by the appellant towards arrears of maintenance allowance awarded under different enactments (in favour of the respondent and her daughter) and further subject to the appellant continuing to pay Rs.8,000/- per month to the respondent towards maintenance allowance payable to her and to her daughter from the month of November, 2024 onwards, the respondent would have no further or other claim towards monthly maintenance allowance either on her own behalf or on behalf of her minor daughter. With respect to the marriage expenses awarded by the learned court below at Rs.5,00,000/-, it has been further submitted that subject to the appellant depositing Rs. 6 lakhs as indicated in the personal affidavit filed today, within reasonable time no further dispute would survive with respect to the maintenance allowance.
9. As to the divorce sought by the appellant, that appeal may be heard on its own merits.
10. For the facts noted in the earlier orders, passed in First Appeal No.788 of 2024 (Shashi Bhushan Tiwari Vs. Seema Tiwari and another), as quoted above, we absolutely deprecate the conduct of the appellant and also the counsel for the appellant. However, we do not have the time or the inclination to deal with such ill-adviced litigants and erring lawyers. Courts' precious time is required in cases that are waiting in the queue to be dealt with on their own merits. Purely on account of shortage of time experienced by us, we do not propose to make any further observation with respect to the appellant and his counsel.
11. In view of the facts noted above, the order dated 28.08.2024 passed in First Appeal No.151 of 2024 (as quoted above) the order cannot stand. It is recalled.
12. On the issue of maintenance allowance awarded by the learned court below, the appeal is disposed of on the following terms:-
(i) the appellant shall pay Rs.6 lakhs towards marriage expenses of his daughter not later than 31.12.2024.
(ii) the appellant has deposited Rs.8,000/- towards maintenance allowance payable to the respondent and her minor daughter for the month of November, 2024. Let equal amount be paid regularly on month to month basis from the month of December, 2024 onwards through direct deduction to be made from the salary payment of the appellant, to be credited directly into the following bank account of the respondent"-
"Account Holder Name- Sima Tiwari Bank Name- Bandhan Bank Branch- Ballia IFSC Code- BDBL0001285 A/C No.-50190003054792"
13. As to the balance Rs.3,30,000/- towards arrears of all monthly maintenance allowance the same may be deposited not later than 30th April, 2025. Failing that, an amount of Rs.20,000/- per month may be further deducted from the salary of the appellant- to be paid directly to the respondent from the month of June, 2025 onwards, till full payment is made in the bank account described above, till all arrears are paid.
14. Subject to the full compliance of this order the respondent may not raise any other or further claim for maintenance allowance against the appellant unless that claim be for an amount higher than the amount of Rs.8,000/-, already awarded i.e. more than Rs.5,000/- to respondent no.1 (Seema Tiwari) and/ or more than Rs.3,000/- to respondent no.2 (Subhangi).
15. Accordingly, the appeal is disposed of.
Order Date :- 6.11.2024 A Gautam (Donadi Ramesh,J.) (S.D. Singh,J.)