NAJMI WAZIRI (Open Court)

1. This petition impugns the order of the Family Court, Rohini, Delhi dated 06.06.2011 which had reviewed its own order of 01.11.2010. the latter order fixed an amount of Rs.1,00,000/- for the maintenance of the wife and the minor child of the respondent from the date of filing of section 24 application under Hindu Marriage Act, 1955. Mr. A.K. Singh, learned counsel for the appellant submits that the Trial Court fell into error by entertaining the application filed by the Attorney of the husband and it was also not supported by an affidavit of the husband. The learned counsel further submits that there is no provision in law for entertaining such a defective application; that it was barred by time by delay of 13 days and nor was there any application seeking condonation of the said delay. He submits that the Court suo moto, could not have condoned the delay since there is strict stipulation under the law of limitation requiring each day of delay to be explained convincingly. He submits that for the delay to be condoned, an application to this effect justifying the grounds of delay ought to be on record; that the Trial Court fell into error in condoning the delay doing suo moto. He submits that the review petition was time barred, not maintainable and ought to have been dismissed.

2. After taking into consideration the arguments of learned counsel for the parties, the Trial Court reasoned that there no need to grant litigation expenses to the respondent/wife. The learned counsel for the appellant submits that it is settled law that before any motion under the Hindu Marriage Act can proceed, the amount earlier directed to be paid to the respondent/wife should be deposited in the Court and/or be paid to the wife so as to financially empower her to contest the proceeding. He submits that in the absence of the requisite financial empowerment of economically disadvantaged contesting parties, the wife in this case, she would be severally prejudiced in contesting the husband’s motion. The learned counsel submits that the Trial Court failed to ensure compliance of its order for payment of the amounts as earlier directed. Therefore, he submits, that proceedings were vitiated on the ground of procedure as well as in equity. He relies upon a judgment of this Court in “Rejeev Preenja vs. Sarika & Ors.” In Crl.MC. 1859 and 3089/2-008 and Crl.M.a. 11390/2008 (stay) the relevant para 19 reads as under:-

“Keeping in view the fact that interim maintenance applications are likely to take a year for being disposed of and that the payment to the wife is likely to be made only thereafter, it is only just and fair that the revisional court should insist on the deposit in Court of the interim maintenance payable in terms of the order under challenge as a pre condition to entertaining the revision petition. Otherwise the recalcitrant husband can, despite suffering an adverse order, defeat that order merely by filing a revision petition and not being burdened with the responsibility of complying with it.”

3. Section 2 of the Power of Attorney Act 2003 reads as under:- “Execution under power-of-attorney- The donee of a power-of-attorney may, if he thinks fit, execute or do any instrument or thing in and with his own name and signature, and his own seal, where sealing is required, by the authority of the donor of the power; and every instrument and thing so executed and done, shall be as effectual in law as if it had been executed or done by the done of the power in the name, and with the signature and seal, of the donor thereof.

This section applies to powers-of-attorney created by instruments executed either before or after this Act comes into force”

4. The said provision of law has been judicially expounded by the Supreme Court in “T.C. Mathai & Anr. vs. The District & Sessions Judge, Thiruvananthapuram, Kerala” AIR 1999 SC 1385, the relevant para reads as under:-

“15. Section 2 of the Power of Attorney Act cannot ove