Punjab-Haryana High Court
Rekha Rani vs Mohan Lal on 29 August, 2014
102 CM No.17986-CII of 2014 in
CMM No.42 of 2013 in
FAO No.1035 of 2013
Rekha Rani Versus Mohan Lal
Present: Mr. Bhavyadeep Walia, Advocate,
for the applicant-appellant.
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The civil miscellaneous application has been filed seeking modification of the order dated 07.07.2014 passed in CMM No.42 of 2013. It is submitted that the order for the grant of maintenance to the applicant-wife be modified by granting maintenance pendente lite from the date of filing the application i.e. from 23.11.2012 instead from the date on which the delay was condoned i.e. 27.1.2014.
The appellant-wife aggrieved against the judgment and decree dated 31.08.2012, whereby, the marriage between the parties has been declared to be a nullity filed the present appeal on 23.11.2012. The appeal was time barred by 54 days. It was returned to the learned counsel with objections on 11.12.2012. It was then re-filed on 18.02.2013. It was again returned with objections on 19.02.2013. It was refiled on 05.03.2013. Again it was returned with objections on the same day. The appeal was then refied on 11.03.2013 and then again after removing the objections was refiled on 13.03.2013. In this process a delay of 141 days occurred in filing the appeal. The appeal was listed for hearing on 14.03.2013. Notice of motion was issued for 16.05.2013 and notice regarding condonation of delay was issued as well. The delay in filing the appeal was condoned on 27.01.2014.
CMM No.42 of 2013 for grant of maintenance pendente lite was filed along with the appeal. The same has been decided on 07.07.2014. The appellant-wife was granted an amount of `7000/- per month as maintenance, which was granted from the date the application for condonation of delay was decided i.e. 27.01.2014. The maintenance was ordered to be paid from 01.02.2014 onwards. GAURAV BHARDWAJ 2014.09.06 16:24 I attest to the accuracy and integrity of this document High Court, Chandigarh 102 CM No.17986-CII of 2014 in -2-
CMM No.42 of 2013 in FAO No.1035 of 2013 It is submitted by the learned counsel for the applicant that the applicant-Rekha Rani has been fighting an unequal legal battle. The respondent-husband it is stated is better placed than her. He is an able bodied and an educated government employee, besides, he does not have other liabilities. Therefore, it is prayed that maintenance be fixed from the date of filing the application for the grant of maintenance pendente lite, which was filed along with the appeal on 23.11.2012 instead from the date on which the delay was condoned.
We have given our thoughtful consideration to the matter. In terms of Section 24 of the Hindu Marriage Act, 1955 ('the Act'-for short), no period is prescribed from the date on which the maintenance is to be granted. In the absence of any provision regarding the date from which the maintenance is payable, it is the discretion of the Court as to from which date the maintenance is to be paid. The Courts have generally been fixing maintenance depending on the facts and circumstances of each case and granting maintenance from the date of filing the application for grant of maintenance pendente lite. The delay, if any, caused by an applicant in filing an appeal is a factor and a circumstance, which is liable to be taken into consideration for the grant of maintenance pendente lite. Till the time delay in filing the appeal is not condoned, there is in effect no appeal. The maintenance in terms of Section 24 of the Act is payable "during the proceedings". The payment of maintenance pendente lite from a particular date being a matter of discretion, which has been exercised would not warrant a review or modification of the same on the mere asking.
In order to seek a review of an order, the provisions of Section 114 and Order 47 Rule 1 read with Section 141 of the Code of Civil Procedure ('CPC'-for short) are to be kept in view. In terms of Section 141 CPC and Order 47 Rule 1 CPC, a person aggrieved by an GAURAV BHARDWAJ 2014.09.06 16:24 I attest to the accuracy and integrity of this document High Court, Chandigarh 102 CM No.17986-CII of 2014 in -3- CMM No.42 of 2013 in FAO No.1035 of 2013 order from which an appeal is allowed by the provisions of CPC but from which no appeal has been preferred; by a decree or order by which no appeal is allowed by the CPC or by a decision on a reference from a Court of Small Causes, may apply for a review of the judgment to the Court which passed the decree or made the order. Order 47 Rule 1 CPC further envisages the grounds for review of an order. It is provided that a review may be made from the discovery of new and important matter or evidence which, after the exercise of due diligence was not within his knowledge or could not be produced by him at the time when the decree was passed or order made, or on account of some mistake or error apparent on the face of record, or for any other sufficient reason. The said provisions in terms of Section 141 CPC are to be followed as far as it can be made applicable, in all proceedings in any Court of civil jurisdiction.
The applicant has not mentioned or pleaded any ground for review or modification of the order as provided for by the provisions of Order 47 Rule 1 CPC. Therefore, no ground for review of the order dated 07.07.2014 is made out. Besides, in the present case, this Court had taken a conscious decision to grant the maintenance from the date the delay in filing the appeal was condoned. In the circumstances, we find no infirmity in the order so as to modify the same for the grant of maintenance from the date the application for maintenance was initially filed.
In the circumstances, there is no merit in the civil miscellaneous application and the same is accordingly dismissed.
(S. S. SARON) JUDGE (NAVITA SINGH) 29.08.2014 JUDGE G. Bhardwaj GAURAV BHARDWAJ 2014.09.06 16:24 I attest to the accuracy and integrity of this document High Court, Chandigarh