Court No. - 38

Case :- FIRST APPEAL No. - 667 of 2018

Appellant :- Chandra Kant

Respondent :- Smt. Meenu

Counsel for Appellant :- Sanjay Kumar Dubey

Hon'ble Abhinava Upadhya,J.

Hon'ble Bachchoo Lal,J.

Heard Sri Sanjay Kumar Dubey, learned counsel for the

appellant and perused the record.

By means of this appeal the appellant has challenged the order

dated 16.8.2018 in Misc. Case No. 92 of 2016 allowing the case

under Section 24 of the Hindu Marriage Act by which Rs.

3000/- maintenance pendentelite has been allowed.

The challenge to the aforesaid order is that initially the

application under Section 24 of the Hindu Marriage Act was

filed on 29.2.2016 in a proceeding pending under Section 9 of

the Hindu Marriage Act filed by the husband. It is further

submitted that on the very date when the application under

section 24 was filed by the wife, the husband withdrew the case

under Section 9 of the Hindu Marriage Act. Thereafter, the

appellant husband filed a suit under Section 13 of the Hindu

Marriage Act for dissolution of the marriage by divorce on

9.11.2016.

The argument raised is that the application under Section 24 of

the Hindu Marriage Act is maintainable only in a pending

proceeding and since the application was filed in a proceeding

pending under Section 9 of the Hindu Marriage Act and that

having been withdrawn on 12.3.2016, the application under

Section 24 should have been automatically rejected as there was

no pending proceeding. It has further been submitted that this

application could not have been taken cognizance of in a

subsequent proceedings initiated by the appellant by filing a

suit under Section 13 of the Hindu Marriage Act. The

respondent was at liberty to file a fresh application under

Section 24 of the Hindu Marriage Act during pendency of the

proceeding under Section 13 of the Act but the application

under section 24 filed in a proceeding under Section 9 could not

have been allowed.

We have considered the submissions of learned counsel for the

appellant.

The objection raised appears to be highly technical. Since from

the order itself it appears that the maintenance has been granted

from the date of passing of the order and on the date when the

order was passed admittedly proceeding under Section 13 of the

Hindu Marriage Act was pending. It is also not disputed that the

respondent could have filed a fresh application under Section

24 of the Hindu Marriage Act in the new proceedings. Since the

earlier application was still pending, we do not find any error in

the order by the court allowing the application by granting

maintenance of Rs. 3000/ till the pendency of the proceeding

under Section 13 of the Hindu Marriage Act.

Taking into consideration the aforesaid facts, we do not deem it

fit and proper to interfere in the order impugned, which appears

to be just and fair.

The appeal has no merits and is accordingly dismissed.

Order Date :- 10.10.2018

Gss

(Bachchoo Lal,J.) (Abhinava Upadhya,J.)