IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA FAO(FC) No.30 of 2024 Decided on : December 3, 2024 Ankush Kumar …..Appellant Versus Shikha Choudhary ….Respondent Coram:

The Hon’ble Mr. Justice Vivek Singh Thakur, Judge.

The Hon’ble Mr. Justice Rakesh Kainthla, Judge Whether approved for reporting?

For the Appellant : Mr.Dheeraj K. Verma, Advocate.

For the respondent : Mr.Naveen K. Bhardwaj, Advocate.

Vivek Singh Thakur, Judge (Oral)

Present appeal has been preferred by husband-

Ankush Kumar against his wife-Shikha Choudhary, assailing order dated 05.01.2024 passed by Principal Judge (Family Court), Kangra at Dharamshala, in application CMA No.1233 of 2022, titled as Shikha vs. Ankush Kumar, preferred by wife under Section 24 of the Hindu Marriage Act, 1955 (hereinafter referred to as ‘H.M. Act’), for grant of pendente lite maintenance during pendency of the main petition preferred by husband-Ankush Kumar for dissolution of marriage bearing HMA No.946 of 2022, filing No.HMA No.2430 of 2022, titled as Ankush Kumar vs. Shikha Choudhary, under Section 13 1(ia), (ib) of the H.M. Act.

2. Admittedly, main petition preferred by Ankush Kumar was dismissed for non-prosecution on 05.01.2024 when neither the petitioner (Ankush Kumar) nor his counsel turned up to pursue the petition filed by the husband.

3. Application for pendente lite maintenance was also decided on the same day by the Principal Judge (Family Court) by directing the husband to pay `20,000/- per month to Shikha Choudhary, but from the day of passing of the order with direction to deduct the same from the salary of Ankush Kumar.

4. It has been submitted on behalf of the appellant that application filed by the respondent for grant of pendente lite maintenance under H.M. Act, which was permissible during pendency of the main petition, i.e. HMA No.946 of 2022 and after dismissal of the main petition, respondent was not entitled for any maintenance in an application preferred by her for grant of pendente lite maintenance under Section 24 of H.M. Act.

5. Learned counsel for the respondent submits that respondent had filed an application for grant of pendente lite maintenance during pendency of the petition and, therefore, respondent is entitled for maintenance for the period during which petition preferred by appellant-Ankush Kumar remained pending which has now been dismissed for non-prosecution on behalf of Ankush Kumar and, therefore, it has been submitted that order passed by the Principal Judge (Family Court) should be construed and is to be modified to the extent that respondent-Shikha Choudhary is entitled for pendente lite maintenance for the period for which petition preferred by Ankush Kumar remained pending in the Family Court.

6. After going going through the record and considering the submissions made by learned counsel for the parties, we are of the considered opinion that once main petition was dismissed for non-prosecution, there was no occasion or reason for the Principal Judge (Family Court) to award maintenance @ `20,000/- from the date of order.

7. In fact, pendente lite maintenance had to be directed to be paid to Shikha Choudhary from the date of filing of the petition till the date of its disposal, but Principal Judge (Family Court) has committed a mistake by passing the order awarding maintenance allowance from the date of order with direction to the concerned DDO Commandant to deduct the same from the account of Ankush Kumar.

8. On perusal of record of the Family Court, we find that respondent-Shikha Choudhary had filed an affidavit of assets and liabilities with details of source of earning by her as well as Ankush Kumar, wherein she had claimed that Ankush Kumar is serving in Indian Army and earning handsome salary of `70,000/- per month. The said affidavit, despite granting and availing opportunities, was not disputed by Ankush Kumar nor any affidavit of assets and liabilities was filed by him.

9. In the aforesaid facts and circumstances, and material available