Allahabad High Court
Smt. Lata Alias Hemlata vs Civil Judge, Bulandshahr And Others on 26 March, 1992
Equivalent citations: AIR1993ALL133, AIR 1993 ALLAHABAD 133, 1993 ALL. L. J. 510, 1992 (3) ALL WC 1878, 1992 MATLR 402, 1992 (2) ALL CJ 933, 1992 ALL CJ 2 933
ORDER
1. This writ petition arises out of divorce proceedings pending consideration before the Civil Judge, Bulandshahr between one Pramod Kumar Sharma and Lata. Lata is the petitioner before this court and Pramod Kumar Sharma opposite party No. 3.
2. The divorce petition was filed by Pramod Kumar Sharma against Lata on various allegations including those of incompatibility of temperament. The divorce petition was amended subsequently to contain an allegation on the character of Lata. The allegation was originally not taken in the divorce proceedings. The reasons which were given in the amendment application are that, the opposite party No. 3 was advised to take the allegations which had inadvertently been forgotten in the divorce petition.
3. At some stage during the pendency of the proceedings Lata applied for maintenance. The maintenance granted by the trial court was a modest sum of Rs. 250/- per month and in addition Rs. 100/- as litigation expenses. Both the husband and wife challenged the order of maintenance by a revision. The husband made the first challenge by filing a civil revision on 16-2-1991. His contention in the revision was that the maintenance as had been granted was excessive, implying thereby that the maintenance be reduced along with the litigation expenses. When the maintenance granted to Lata was being attacked, she also filed a civil revision with the prayer that maintenance and litigation expenses be increased. The learned Special and Additional District Judge, Bulandshahr, deciding the two civil revisions quashed the order by which Lata was to receive maintenance as also litigation expenses. The court in revision was of the view that Lata was not entitled to either maintenance or litigation expenses. Consequently the revision filed by the husband succeeded. Aggrieved Lata has filed the present writ petition before the High Court that the learned Additional District udge was in error.
4. The contention in the writ petition as pointed out from the record is that the order of the learned Additional District Judge is not only in error but a contradiction in terms of another order passed by the same Judge when Lata applied to the trial court to sue as an indigent person and against that order also an appeal had been filed but came up for consideration before the same court and on the same day when the revision of the husband had succeeded. Lata had applied to sue as an indigent person before the court of the Civil Judge, Bulandshahr. Learned Civil Judge by his order of 6th July, 1991 rejected her application for leave to sue as an indigent person. Thus, Lata filed an appeal and this case to be considered before the Special and Additional District Judge, Bulandshahr as Misc. Civil Appeal No. 111 of 1991. The order in revision by which Lata was not entitled to receive maintenance or litigation expenses is dated 17th December, 1991. The order in appeal permitting Lata leave to sue as an indigent person is also of 17th December, 1991.
5. Thus, the question whether Lata is entitled to maintenance or not cannot be seen in isolation unless the High Court keeps both the orders of 17th December, 1991 in perspective. Many allegations which have been taken in the divorce petition against Lata, to the effect, that she carried away monies or jewellery from the house of her husband or father-in-law have been negatived by the learned Additional District Judge. As the husband resisted steps of Lata to sue as a pauper, the same allegations were presented before the court in appeal as defence to persuade the court that Lata was not entitled to the status of an indigent person. Thus, giving the appellate court an occasion to make observations, the appellate court expressed the view that Lata did not have resources of her own and that the court was satisfied that she be granted leave to sue as a pauper or an indigent person. The allegations of the husband against Lata that she had carried away monies and jewellery were rejected. Thus, the status of Lata was determined by the appellate court, that is, the 1st Additional District Judge that she was without resources and is not in a position to fight her litigations financially as she has no independent means. Leave sought by Lata to continue to resist divorce proceedings, initiated by her husband, as an indigent person, is an order which has become final. This court cannot ignore this order and is obliged to take judicial notice of it.
6. Now, the order dated 17 December, 1991 by which the petitioner, Lata, complains that she has been denied maintenance and litigation expenses wrongly by the same court which declared her as a pauper. No rationale or cogent explanation can be given on behalf of the husband Pramod Kumar Sharma to explain the inconsistency of the approach of the same court which simultaneously holds a person as an indigent and yet considers the same person as not being entitled to maintenance pendente lite divorce proceedings and litigation expenses. On this account this order which has been impugned needs to be set aside.
7. There is another aspect of the matter which is available from the record and upon which the court cannot resist making comments. When Pramod Kumar Sharma and Lata married they were 21 and 18 respectively. Lata was still in her teens, Pramod Kumar Sharma barely out of it. The father of Pramod Kumar Sharma is a retired Subedar from the Indian Army. The father of Lata is a class III employee with the local State Electricity Board. From the record it is clear that the marriage between the two has not worked right from the beginning. The cause for this is immaturity between the two who got married on interference from extraneous factors, this court does not know. But to take an extreme stand that regard being had to the financial status of the girl's parents and because the spouse is a teenage girl, and not entitled to maintenance is an argument which cannot be accepted so lightly.
8. The admitted facts on record are that the husband Pramod Kumar Sharma is a person employed as an agent of an insurance corporation. The resistance to maintenance was based on the rationale that Lata had taken away certain monies and jewellery from the house of her husband and father-in-law. This aspect of the case as presented by the husband, failed hopelessly before the court below. What remains to be considered is the rest of the case of the husband. There is a broken marriage the facts of which are being considered in the divorce proceedings initiated by the husband and pendente lite divorce proceedings a request by the wife for maintenance. The same court which denies maintenance to the wife finds her poor enough and certifies that the needs dispensation from court fee expenses. Could she be denied maintenance and litigation expenses? This is a fit case by which this court on certiorari certifies that the order of 17th December, 1990 as not only incorrect, but regard being had to the overall circumstances, perverse. Thus, the orders dated 17th December, 1991 passed in Civil Revision No. 162 of 1991 and Civil Revision No. 176 of 1991 are quashed. While the amount which has been awarded as maintenance standing at Rs. 250/- or for that matter litigation expenses which has been determined as Rs. 100/- would not be decreased and to this extent proceedings in Civil Revision No. 162 of 1991 are consigned by a writ of prohibition.
9. The matter is remanded to the court of the Special Judge and Additional District Judge, Bulandshahr to reconsider proceedings in Civil Revision No. 176 of 1991, Smt. Lata v. Pramod Kumar Sharma, afresh, in the light of the observations which have been made by this court to determine whether (a) the maintenance awarded by the trial Court is sufficient or need to be considered for enhancement and (b) the additional factor which the court below will have in mind is inflation on the cost of living index, so that there may not be such a situation that while the maintenance and litigation expenses remain static inflation may erode the money value of it. In these circumstances, the said revision will now be considered de novo. The Court below will also ensure that the amount which has been awarded by the trial court as maintenance and litigation expenses are brought in deposit before the trial court within a time bound schedule.
10. The writ petition is allowed with costs.
11. Petition allowed.