IN THE HIGH COURT OF JUDICATURE AT PATNA C.R. No.1606 of 2006 ASHUTOSH KUMAR RANJAN @ A.K.RA Versus SANGITA ASHUTOSH RANJAN With C.R. No. 977 of 2008 Sangeeta Geeta Vs. Ashutosh Kumar With C.R. No. 1786 of 2006 Sangeeta Geeta Vs. Ashutosh Kumar With C.R. No. 1670 of 2007 Sangeeta Geeta Vs. Ashutosh Kumar ----------- 6 11/7/2008 Heard counsel for the parties. C.R. No. 1606 of 2006 has been filed by husband-petitioner, the petitioner in the matrimonial suit seeking divorce against the order dated 25.7.2006, whereby and whereunder, the court below having taken into consideration the order of remand of this Court dated 17.2.2006 in C.R. No. 211 of 2006 had passed afresh order in the matter of grant of maintenance pendentelite under section 24 of the Hindu Marriage Act, hereinafter referred to as the Act. Counsel for the petitioner-husband would contend that the order directing the petitioner to pay a sum of Rs. 10,000/- per month and the cost of litigation at Rs. 10,000/- is wholly exorbitant keeping in view the take home salary of the petitioner. The same order dated 25.7.2006 has been also assailed by the wife-opposite party in C.R. No. 1786 of 2006 to the extent that the court below has directed payment of such amount of maintenance not from the date of institution of the suit, but from the date of filing of application under section 24 of the Act. 2 The third C.R. No. 1670 of 2007 has been filed by the wife alleging that despite hope and expectation generated by the order dated 9.1.2007 in C.R. No. 1606 of 2006 and C.R. No. 1786 of 2006, defiant attitude of the husband in the matrimonial case has led to mechanical approach in recording failure of amicable settlement made by the court below. Fourth and last Civil revision application no. 977 of 2008 again has been filed by wife against the order dated 22.5.2008 refusing to recall the witness of husband applicant in the divorce case who were examined during pendency of C.R. No. 1670 of 2007 before this Court. These matters have appeared earlier also before this Court and an assurance was given that a final attempt was yet to be made for settlement of the dispute between the parties, and on such assurance the matter was adjourned, but ultimately it has now been communicated by the counsel of the husband that on repeated efforts made the counsels, namely, Mr. Devendra Kumar Sinha, the learned Senior counsel and Mr. J.S. Arora, the husband does not want to live with the wife as she is suffering from mental ailment. In that view of the matter, Mr. Rajendra Prasad Singh, learned Senior Counsel appearing on behalf of the wife, upon taking instruction from her has submitted that though wife was whole heartedly willing to live with her husband, but now when the husband does not want to live with her, there is no option 3 left to her but to contest the suit, which has been filed by the husband seeking divorce on the ground of cruelty and medical unfitness. In such a situation, when the repeated efforts of the court below and this Court has failed, this much is clear that the matrimonial suit filed by the husband has to be disposed of, because there is serious allegation made by the petitioner against his wife. In that view of the matter, this Court will accept plea of the wife that she was awaiting result of her C.R. No. 1670 of 2007, wherein she had assailed the order of the court below regarding failure of amicable settlement despite her unconditional offer to live with her husband. In the opinion of this Court, such hope and belief of the wife cannot be said to be either unreasonable or unexceptional. As a matter of fact, when the wife was desirous to live with her husband and was expecting for restitution of her conjugal life she was definitely not geared up to contest the suit filed by her husband involving the allegation of cruelty and also medical unfitness. In that view of the matter, this Court would set aside the order dated 22.5.2008 and would direct the wife that she must appear in the court below and contest the suit on the dates fixed by the court below. The court below is directed to recall all the witnesses of the applicant husband who have been examined in 4 absence of wife and/or her counsel and permit cross examination of all the witnesses examined behind back of the wife and/or counsel as also any other witness of the applicant-husband and also allow her to lead evidence after closure of the evidence of the husband. At this stage, Mr. Devendra Kumar Sinha, learned senior counsel appearing on behalf of the husband has offered to produce his all witnesses who have been examined behind back of wife for their being cross examined by the wife and/or her counsel. Mr. Rajendra Prasad Singh, learned Senior counsel for the wife has no objection this part of offer made by counsel for the husband. Having thus resolved the issue of continuance of trial after affording opportunity to the wife to cross examine the witnesses examined behind her back, this Court would hold that the C.R. No. 1670 of 2007 has also become infructuous, because now when ultimately the parties have decided to contest the suit, any failure of effort of amicable settlement as recorded in the order dated 16.7.2007 has become irrelevant. In that view of the matter this C. R. No. 1670 of 2007 is disposed of as having become infructuous. Having thus disposed of two civil revision applications, this Court would now revert back to first civil revision filed by the husband with regard to quantum of amount of arrears and current amount of maintenance pendentilite under section 5 24 of the Act. This Court in view of overwhelming evidence on record to show that the petitioner is a gainfully employed in a reknowned company and has an income from his salary Rs. 22,000/- per month in the year 2006 as recorded in the finding of the court below does not find any error in the order granting maintenance pendentilite of Rs. 10,000/- a month by the husband to his wife who has no independent source of income for maintaining herself and her dependant minor school going daughter aged about eight years. It is to be noted here that the counsel for the husband- petitioner is not in a position to say what is the present salary of the petitioner. This Court, taking into consideration of an earlier order of this Court reducing the amount of Rs. 10,000/- to the tune of Rs. 7,000/-, by way of an interim arrangement in an earlier proceeding would hold that such sum of amount of Rs. 7,000/- is required to be paid by the husband to the wife. This amount, however, would be in addition to the amount of Rs. 3000/- per month to be paid by the husband for the maintenance of minor school going child during pendency of the suit. It is made clear that in case the child is given in the custody of the husband under any order of the competent Court, this amount of Rs. 3,000/- thereafter would not be required to be paid by the husband for the maintenance of minor child. Coming to the fourth C.R. No. 1786 of 2006, this Court would not find any justification 6 in the order of the court below fixing payment of amount of maintenance under section 24 of the Hindu Marriage Act from the date of filing of the application. In fact, the spirit of section 125 of the C.P.C. cannot be adopted for the purpose of disposal of any amount of maintenance under section 24 of the Hindu Marriage Act. From a bare comparison of both the sections it become clear that the legislature has not made restriction for payment of any amount of maintenance under section 24 of the Act before the date of filing of the application whereas a restriction has been imposed in this regard under section 125 of the Code of Criminal Procedure. In that view of the matter, approach of the court below in restricting for payment of amount of maintenance only from the date of filing of the application to the wife cannot be approved and as such that part of the impugned order is set aside. Consequently, the petitioner husband is directed to pay the amount of maintenance from the date the suit was instituted by him. The arrears of the amount on this head to be assessed by the court below must be paid by the husband within a period of three months from the date of such order. At this stage, Mr. J.S. Arora, learned counsel seeks leave to extend time limit to six months. Consequently, accepting the submission of counsel for the husband-petitioner, this Court would direct that the aforementioned payment must be made within a period of six months 7 from today in four equal instalments, first installment being payable after one month from today and thereafter the remaining amount must be paid in four equal monthly instalments.It is, however, made clear that any amount already paid by the husband on the head of maintenance under the order of this Court or the court below will of course be adjusted while calculating the amount of arrears. Accordingly, all the four civil revision applications as indicated above are being disposed of with the following directions:- I. The husband-petitioner would produce his evidence to be examined by the wife within a period of one week of payment of first installment. The wife and/or her counsel must ensure that witnesses which are produced by the petitioner- husband must be cross examined and this time there should be no default on the part of wife in examining either her own witnesses and cross examining the witnesses of her husband and if the court below finds any delaying and/or dilatory tactics, it will be open for the court below to proceed exparte. 8 II. Payment of first instalment having been made within a period of one month from the date of production of a copy of the order. The remaining installments shall be paid at the gape of 45 days so that the final payment is ensured within a period of six months of the arrears amount. In the event of failure in payment either current or arrear amount of maintenance as directed by this Court, it will be open for the court below to take coercive steps against the petitioner ; III. The court below is directed to ensure that the sit is disposed of within a period of nine months from the date of receipt/production of as copy of this order. ( Mihir Kumar Jha, J. ) Abhay Kumar