Allahabad High Court
Shri Vishal Bansal vs Smt. Nikita Alias Nitika Agarwal on 12 April, 2024
Author: Vivek Kumar Birla
Bench: Vivek Kumar Birla
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Neutral Citation No. - 2024:AHC:64026-DB Court No. - 29 Case :- FIRST APPEAL No. - 305 of 2024 Appellant :- Shri Vishal Bansal Respondent :- Smt. Nikita Alias Nitika Agarwal Counsel for Appellant :- A.K. Mishra,Ashish Kumar Hon'ble Vivek Kumar Birla,J.
Hon'ble Kshitij Shailendra,J.
Re: Civil Misc. Exemption Application No. 1 of 2024
1. Heard Sri Ashish Kumar, learned counsel for the applicant-appellant.
2. This exemption application is allowed. The appellant is exempted from filing copy of the formal order.
Re: First Appeal
1. Heard Sri Ashish Kumar, learned counsel for the appellant.
2. Present appeal has been filed challenging the order dated 13.2.2024, whereby Principal Judge, Family Court, Ghazaibad has disposed of the applications paper no. 39-Ga(2) and paper no. 40-Ga(2) filed by the respondent-wife and has directed the appellant to make payment of pendente lite expenses of proceedings and maintenance amount from the date of filing of the petition under Section 9 of the Hindu Marriage Act, 1955, i.e. w.e.f. 24.3.2021.
3. Submission of learned counsel for the appellant is that in the proceedings of the case under Section 9 of the Act, the respondent-wife filed an application under Section 24 of the Act claiming interim maintenance and pendente lite expenses of proceedings, which was allowed by the Principal Judge, Family Court, Ghaziabad by an order dated 11.8.2023 directing payment of a sum of Rs. 5,000/- per month as interim maintenance payable on 10th of every month. It is next submitted that the said order having attained finality, the same could not be modified by the Principal Judge on an application filed by the wife, which has been illegally allowed directing payment of the said sum w.e.f date of the application. It is next submitted that there was no change in the circumstances, therefore, the court below was not justified in passing the order impugned herein.
4. The Court has perused the record and it finds that in the order dated 11.8.2023 there was a clear direction that the amount of pendente lite expenses of proceedings shall be paid during the pendency of the proceedings, however, the date from which the said amount is payable was not clearly mentioned and it has been clarified by passing the order dated 13.2.2024, impugned herein.
5. We have considered the submissions and perused the record.
6. The law on the issue is now well settled. A reference may be made to a judgment of Hon'ble Apex Court in the case of Rajnesh vs. Neha and another (2021) 2 SCC 324. Relevant paragraphs of the aforesaid judgment are quoted as under:-
"94. There is no provision in the HMA with respect to the date from which an order of maintenance may be made effective. Similarly, Section 12 of the DV Act, does not provide the date from which the maintenance is to be awarded. Section 125 (2) Cr.P.C. is the only statutory provision which provides that the Magistrate may award maintenance either from the date of the order, or from the date of application.
95. In the absence of a uniform regime, there is a vast variance in the practice adopted by the Family Courts in the country, with respect to the date from which maintenance must be awarded. The divergent views taken by the Family Courts are: first, from the date on which the application for maintenance was filed; second, the date of the order granting maintenance; third, the date on which the summons was served upon the respondent.
109. The judgments hereinabove reveal the divergent views of different High Courts on the date from which maintenance must be awarded. Even though a judicial discretion is conferred upon the court to grant maintenance either from the date of application or from the date of the order in Section 125(2) Cr.P.C., it would be appropriate to grant maintenance from the date of application in all cases, including Section 125 CrPC. In the practical working of the provisions relating to maintenance, we find that there is significant delay in disposal of the applications for interim maintenance for years on end. It would therefore be in the interests of justice and fair play that maintenance is awarded from the date of the application.
111. The rationale of granting maintenance from the date of application finds its roots in the object of enacting maintenance legislations, so as to enable the wife to overcome the financial crunch which occurs on separation from the husband. Financial constraints of a dependent spouse hamper their capacity to be effectively represented before the court. In order to prevent a dependant from being reduced to destitution, it is necessary that maintenance is awarded from the date on which the application for maintenance is filed before the court concerned.
113. It has therefore become necessary to issue directions to bring about uniformity and consistency in the orders passed by all courts, by directing that maintenance be awarded from the date on which the application was made before the court concerned. The right to claim maintenance must date back to the date of filing the application, since the period during which the maintenance proceedings remained pending is not within the control of the applicant.
131. We make it clear that maintenance in all cases will be awarded from the date of filing the application for maintenance, as held in Part B-IV above."
7. We have perused the order impugned herein and in the light of Rajnesh (supra) we do not find any force in the submissions of learned counsel for the appellant. Therefore, the order impugned does not warrant any interference.
8. In the end, learned counsel for the appellant submits that the arrears are huge in quantum, therefore, the appellant may be granted additional time to deposit the amount.
9. In the interest of justice, the period for making deposit of the amount under the order impugned dated 13.2.2024 is extended for a period of six weeks from today.
10. With the aforesaid observations, present appeal stands disposed of.
Order Date :- 12.4.2024 Lalit Shukla