Non-compliance with maintenance orders under the Hindu Marriage Act does not warrant automatic dismissal of divorce petitions.

JUDGMENT

Vyas, J. - This appeal has been filed by the appellant-husband against the order dated 27.03.2019 passed by Family Court No.1, Jodhpur in Civil Original Case No. 271/2018, whereby, the petition under Section 13 of the Hindu Marriage Act, 1955 ('afterwards referred as 'HM Act') filed by the appellant-husband has been dismissed on the ground of alleged non-compliance of the order passed under Sections 24 and 26 of the HM Act.

2. Brief facts of the case are that during the pendency of the petition under Section 13 of the HM Act filed by appellant-husband against respondent-wife, an order dated 16.10.2014 under Section 24 read with Section 26 of the HM Act was passed in favour of respondent-wife awarding Rs.5,000/- per month as interim maintenance, Rs.3,000/- as legal expenses and Rs.2,500/- as advocate fees. An application was preferred by respondent-wife for dismissal of petition under Section 13 of the HM Act on the ground that out of Rs. 2,25,000/- outstanding towards the interim maintenance, only Rs.2,000/- has been paid upto 18.08.2017. On the said application, the appellant-husband was directed to pay remaining arrears within a period of three months from the date of order i.e. 20.07.2017; it was further directed by the Court that on failure of paying the arrears within the stipulated period, the divorce petition under Section 13 of the HM Act shall be dismissed. On 24.10.2018 three cheques of Rs.30,000/-, Rs.40,000/- & Rs.35,000/- were given to respondent-wife and proceedings were adjourned for payment of rest of the arrears. On 27.03.2019 the divorce petition was dismissed on account of non-compliance of order passed under Section 24 read with Section 26 of the HM Act.

3. Being aggrieved by the impugned order this appeal has been filed by the appellant-husband.

4. Learned counsel for the appellant submitted that admittedly, the maintenance amount of Rs.5,000/- was awarded to the respondent by the Family Court vide order dated 16.10.14 under Section 24 of the HM Act. Later, vide order dated 24.10.17 passed in proceedings under Section 125 Cr.P.C., the amount of maintenance payable to the respondent and her daughter was determined as Rs.10,000/- per month and Rs.5,000/- per month respectively. The amount to be paid under any other proceedings has been specifically directed to be adjusted against the amount of maintenance awarded in proceedings under Section 125 Cr.P.C.

5. Learned counsel submitted that the appellant has already paid an amount of Rs.4,64,000/- to the respondent by way of cash, cheque and compulsory deduction from his salary and as per the order passed by the Court, a sum of Rs.20,000/- is being recovered from the appellant's monthly salary till this date. It is submitted that in view of the recovery already made, no amount of maintenance is due against the appellant under Section 24 of the HM Act.

6. Learned counsel for the appellant while relying on the judgment of this Court passed in D.B. Civil Misc. Appeal No.551/2017 : Amandeep Soni v. Smt. Monika Soni, decided on 13.07.2018 submitted that for non-compliance of the direction made in the application under Section 24 of the HM Act, a petition seeking divorce cannot be dismissed and thus, the order under appeal deserves to be set aside.

7. On the contrary, learned counsel for the respondent-wife contended that for non-compliance of the order passed under Section 24 of the HM Act divorce petition can be dismissed. Counsel for the respondent has produced statement of payment made by the appellant under Section 24 of the HM Act and Section 125 Cr.P.C., according to which, a total sum of Rs. 4,64,000/- has been paid and now upto March, 2021 Rs.3,36,500/- are due against the appellant-husband. It is submitted that unless and until this amount is paid, appellant is not entitled to proceed under Section 13 of the HM Act.

8. Learned counsel for the respondent-wife relied on the following judgments:-

(i) Jai Shanker v. Chandresh,1980 WLN(Raj) 82 (UC)

(ii) Pinki v.