Court No. - 44

Case :- FIRST APPEAL No. - 833 of 2021

Appellant :- Gaurav Mishra

Respondent :- Smt Neha Dubey @ Neha Mishra

Counsel for Appellant :- Atul Pandey

Counsel for Respondent :- Ved Mani Sharma

Hon'ble Mrs. Sunita Agarwal,J.

Hon'ble Krishan Pahal,J.

Heard Sri Atul Pandey, learned counsel for the appellant and Sri

Ved Mani Sharma, learned counsel for the respondent.

The present appeal is directed against an order of grant of

interim maintenance to the respondent wife to the tune of Rs.

3,000/- per month, which is payable by 10th of each month. In

addition to the same, Rs. 5,000/- only as lumpsum towards the

cost of the proceedings has been awarded to the wife. For the

arrears of monthly maintenance fixed by the Family Court, it

was directed that the arrears payable with effect from the date

of the application till the date of passing of the order impugned

shall be payable in four equal installments within a period of

four months.

Challenging this order, the first contention of the learned

counsel for the appellant is that a suit for grant of divorce by

mutual consent under Section 13-B of Hindu Marriage Act had

been filed by the parties, which was later on withdrawn by the

wife. The appellant thereafter, had no option but to institute the

divorce suit seeking divorce on the grounds available to him. In

such a situation, in the proceedings drawn by the appellant

husband, the wife is not entitled to seek maintenance. It is

further contended that the appellant is earning Rs. 3,500/- per

month only which is evident from the salary certificate dated

15.1.2021 issued by his employer.

Considering the said submissions, relevant is to note that the

respondent wife in her application under Section 24 of the

Hindu Marriage Act had made a categorical statement that the

appellant husband has a shop of "saria, cement and tiles" and is

earning Rs. 1,00,000/- per month from the said business. The

objection to the application under Section 24 of the Hindu

Marriage Act filed by the husband before the court below has

not been brought on record. As regards the contention of

withdrawal of the petition under Section 13-B of the Hindu

Marriage Act, we find it pertinent to note that the provisions of

Section 23 of the Hindu Marriage Act which clearly provides

that in case in any proceeding drawn under the said Act,

whether defended or not, if the Court is satisfied that the

divorce is sought on the ground of mutual consent but such

consent is not obtained by force, fraud or undue influence and

there is no other legal ground why relief should not be granted,

then the Court shall decree such relief accordingly. Meaning

thereby that in case in a petition seeking divorce on the ground

of mutual consent, the Court is satisfied that the consent is not

independent and has been obtained by any kind of force, fraud

or undue influence, it can deny to grant decree by mutual

consent, even if the consent on affidavit of both the parties is

before it. In the instant case, however, the wife had withdrawn

the petition under Section 13-B of the Hindu Marriage Act and

the order in this regard had been passed on 19.7.2018, which

records that the wife had withdrawn the petition before the

second motion.

In the said scenario, no adverse inference can be drawn against

the wife for withdrawal of the petition under Section 13-B of

the Hindu Marriage Act. In any case, the proceeding for divorce

have been drawn by the husband. The wife is, thus, entitled to

seek interim maintenance on the premise that she has no

independent source of income and the Court may award the

maintenance in order to prevent the wife from reaching the

stage of destitution.

In the said scenario, the decision of the Family Court for

granting interim maintenance to wife rejecting the above noted

objections of the husband cannot be said to suffer from any

infirmity. No interference, thus, can be made.

The appeal is dismissed at the admi