The legal right of a wife to interim maintenance and the obligation of the husband to provide financial support during matrimonial proceedings.

ORDER :

Pradeep Kumar Srivastava, J.

1. This appeal has been preferred against the judgment and order dated 05.10.2018 passed by Additional Family Judge/F.T.C. Family Court, Ballia in Divorce Petition No. 55 of 2013 (Vipin Bihari Lal Vs. Priyanka Srivastava) whereby the application of the appellant under Section 24 of the Hindu Marriage Act was rejected.

2. The brief facts are that the appellant/opposite party filed application 66-C and 69-C for interim maintenance stating that she has no source of income and she has 12 year-old school going son. She has also stated that the respondent/applicant deserted her on account of non-fulfilment of dowry demand. She has also filed an application for maintenance under Section 125 Cr.P.C. In Misc. Case No. 25/1990 in which she was awarded interim maintenance of Rs. 3,000/- per month by order dated 05.12.2012 passed by Family Court, Sasaram, Bihar. The same is not being regularly paid by the respondent. The respondent is earning Rs. 81,056/- per month as per his pay slip filed by the appellant and she has demanded at least 1/3rd of the total salary by way of maintenance and she has also demanded enhancement of litigation expenses from Rs. 1000/- to Rs. 2000/-. By application 69-C filed on 07.12.2017 the appellant also pointed out before the learned Court below that Hon'ble High Court passed an order dated 10.08.2017 for recovery of maintenance pending the petition along with the litigation expenses.

3. Against the application the respondent/applicant filed objection stating that he has filed the divorce petition and the respondent want to anyhow delay the disposal. Appellant filed an application under Section 24 of Hindu Marriage Act which was disposed of on merit on 20.12.2014 and she was provided Rs. 1000/- litigation expense and against that order she did not file any appeal etc. That order became final and, therefore, second application is not maintainable.

4. After hearing both the parties and going through the record the learned Court below rejected both the applications by order dated 05.10.2018. Aggrieved by that order this appeal has been filed.

5. The appellant has challenged the impugned order on the ground that the appellant has no source of income to maintain herself and her child. The respondent has sufficient income. The appellant has pointed out approximately a sum of Rs. 7,500/- to Rs. 10,000/- per month towards education of the child and other activities. By the order dated 20.12.2014, the Court had directed the respondent-husband to make payment of Rs. 1,000/- on each date to make the expenditure towards counsel fees and travelling expense and the same cannot be a ground for rejecting for the application under Section 24 of Hindu Marriage Act. In earlier application, the appellant only demanded the litigation expense and in that application there was no demand for interim maintenance. It was the duty of the Court below to see that her son is entitled to obtain proper education along with the routine comforts in life. The impugned judgment and order is against the pleading and material on record and the Court below failed to appreciate the facts and circumstances of the case. The learned Court below should have appreciated the matter on merits instead of rejecting the application on the basis of technicality. The impugned order, being arbitrary and illegal, is liable to be set aside.

6. Heard learned counsel for both the parties and perused the annexed copies of the relevant record and impugned order with this appeal.

7. The learned counsel of the respondent/applicant has argued that the earlier application of the appellant/opposite party was disposed of on merits on 20.12.2014 by the learned Court below awarding Rs. 1,000/- on every date fixed in the case against fees of the counsel and travel. In that application she did not demand interim maintenance. That order became final between the parties and the present application is barred by principles of constructive res-judicata.

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