Madhya Pradesh High Court
Akash Rajak vs Smt. Rashmi Devi on 10 August, 2023
Author: Milind Ramesh Phadke
Bench: Milind Ramesh Phadke
1
IN THE HIGH COURT OF MADHYA PRADESH
AT GWALIOR
BEFORE
HON'BLE SHRI JUSTICE MILIND RAMESH PHADKE
ON THE 10 th OF AUGUST, 2023
MISC. PETITION No. 4600 of 2023
BETWEEN:-
AKASH RAJAK S/O LATE SHRI HARI RAM RAJAK, AGED
ABOUT 32 YEARS, OCCUPATION: DRIVER, RESIDENT OF
HOUSE OF BADRI PRASAD, NEAR KAILA DEVI MANDIR,
RASULABAD, HAZIRA, DISTRICT GWALIOR (MADHYA
PRADESH)
.....PETITIONER
(BY SHRI VIJAY SUNDARAM - ADVOCATE)
AND
SMT. RASHMI DEVI W/O SHRI AKASH RAJAK, D/O SHRI
VIJAY SHRIWAS, AGED ABOUT 29 YEARS, AT PRESENT
RESIDENT OF IN FRONT OF INDRA STADIUM NEW 31,
MAYA, PATEL NAGAR, SABJI MANDI ORAI, DISTRICT
JALOUN (UTTAR PRADESH)
.....RESPONDENT
This petition coming on for admission this day, the court passed the
following:
ORDER
The present petition under Article 227 of the Constitution of India has been directed against order dated 15.06.2023 passed by Additional Principal Judge, Family Court, Gwalior in Case No.296-A/2021 (HMA); whereby, an application filed the petitioner under Section 151 of the Code of Civil Procedure, 1908 for cancellation of interim maintenance order passed in favour of respondent/wife has been rejected.
Learned counsel for the petitioner has vehemently argued that the present Signature Not Verified Signed by: PAWAN KUMAR Signing time: 11-08-2023 10:56:46 AM 2 petitioner, who is husband, had filed a divorce petition under Section 13(A) of the Hindu Marriage Act, 1955 for dissolution of the marriage. During the pendency of the aforesaid proceedings, respondent/wife had moved an application under Section 24 of the Act of 1955 and had sought maintenance pendente lite and expenses of proceedings and vide order dated 14.02.2020, learned Family Court had allowed the said application and directed the petitioner/husband to pay interim maintenance/alimony of Rs.2,500/- per month and Rs.2,000/- for litigation expenses to the respondent/wife.
It was further argued that during pendency of the divorce petition, the unchaste conduct of the respondent/wife came to the knowledge of the petitioner/husband that she is living in adultery and is having relationship with other persons.
The petitioner, after procuring the requisite documents, moved the present application alongwith an application under Order 6 Rule 17 CPC of CPC for necessary amendment in the divorce petition.
It was further argued that though the learned Trial Court had allowed the application under Order 6 Rule 17 CPC and directed to carry out amendment in the divorce petition but rejected the application under Section 151 of CPC for cancelling the interim maintenance/alimony; against which, the present petition has been preferred.
Learned counsel for the petitioner while placing reliance on the Section 25 of the Act of 1955 contended that if the Court is satisfied that there is a change in the circumstance of either party at any time after it has made an order under Sub-section (1) of this Section, it may at the instance of either party, vary, modify or rescind any such order in such manner as the Court may deem just Signature Not Verified Signed by: PAWAN KUMAR Signing time: 11-08-2023 10:56:46 AM 3 and when ample proof of adulterous life led by respondent/wife was placed before the Trial Court, it should had allowed the application and should had cancelled the order of interim maintenance.
It was further argued that Sub-Section (3) of Section 25 of the Act of 1955 provides that if the Court is satisfied that the party in whose favour an order has been made under this section has re-married or the wife has not remained chaste it could modify or rescind any order in such manner as it deems just.
To bolster his submissions, he has placed reliance in the matter of B. Rukmini Bai vs. B.B. Suraj Bhan Singh reported in AIR 1963 Andhra Pradesh 407.
On the basis of above arguments, it was contended that the present petition be allowed and the interim maintenance/alimony granted to the respondent/wife vide order dated 14.02.2020 be set aside.
Heard counsel for the petitioner and perused the record. The present petitioner is the husband who had preferred a divorce petition under Section 13-A of the Act of 1955 for dissolution of the marriage. During the pendency of the said proceedings, interim maintenance/alimony has been granted by the learned Trial Court on an application moved by respondent/wife under Section 24 of the Act of 1955 in the year 2020.
Thereafter, on the ground of unchasteful behavior of the respondent/wife which came to the knowledge of the present petitioner an application under Section 151 of the CPC was moved before the Trial Court for cancelling the order of interim maintenance/alimony of the respondent/wife, which was rejected by the leaned Trial Court on the ground that it is a matter of evidence as to whether the respondent/wife is living in adultery or has contracted a second marriage.
Signature Not Verified Signed by: PAWAN KUMAR Signing time: 11-08-2023 10:56:46 AM 4The ground on which the counsel for the petitioner has assailed the impugned order is that learned Trial Court should have resorted to the provisions of Sub-section (2) and (3) of the Section 25 of the Act of 1955 and since ample material was placed on record, which was not rebutted by the respondent/wife in the reply should have set aside the order of interim maintenance/alimony, appears to be misconceived, as the provisions of Section 25 of the Act of 1955, is applicable when the Trial Court is exercising the jurisdiction therein at the time of passing of any decree or at any time subsequent therein but in the present matter, the divorce petition is at preliminary stage and evidence of the parties have not yet started and thus, according to this Court, the learned Family Court has righlty observed that the allegations which have been leveled by the petitioner/husband about the unchasteful life led by the respondent/wife is a matter of evidence. The learned Court below is correct in observing the aforesaid only after requisite material is available before it, after the evidences of the parties are adduced, it can come to a conclusion as to whether the interim maintenance/alimony granted to the respondent/wife is required to be modified or canceled.
So far as the judgment cited by the counsel for the petitioner in the matter of Rukmini Bai vs. B.B. Suraj Bhan Singh (supra) is concerned, the same is misplaced and is not applicable to the present context, as therein the proceedings were with regard to execution filed by the wife for recovery of the amount, which was not paid by the husband therein towards maintenance.
Accordingly, the present being sans merit is hereby dismissed.
(MILIND RAMESH PHADKE) Signature Not Verified Signed by: PAWAN KUMAR Signing time: 11-08-2023 10:56:46 AM 5 JUDGE pwn* Signature Not Verified Signed by: PAWAN KUMAR Signing time: 11-08-2023 10:56:46 AM