IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Writ Petition No. 258 of 2010 (M/S) Bhawna Kandpal ………..Petitioner Versus Manoj Kandpal …….Respondent Mr. Piyush Garg, learned counsel for the petitioner. Mr. Pradeep Hairiya, learned counsel for the respondent. Dated:30.07.2010 Hon’ble V.K. Bist, J. Present writ petition has been filed by the petitioner for quashing part of the order dated 01.12.2009 passed by the Judge, Family Court, Nainital in Civil Case no.24 of 2009 “Manoj Kandpal Vs. Bhawna Kandpal” whereby the learned Family Court has partly rejected the application of the petitioner moved by her under Section 24 of the Hindu Marriage Act, 1955 (hereinafter called as the Act) and has disallowed the pendent-lite maintenance to the petitioner. Further prayer has been made for a direction to the respondent to pay monthly maintenance at the rate of Rs.10,000/- to the petitioner during the pendency of the proceedings under Section 13 of the Hindu Marriage Act before the Judge Family Court, Nainital. 2. Brief facts of the case, as narrated in the petition, are that on 24.06.2003 marriage was solemnized between the respondent and the petitioner 2 at Haldwani and at the time of marriage, father of the petitioner gave gifts to the respondent and his family members to the best of his ability and capability. After the marriage, the petitioner performed the duties of a wife to her best, but the respondent continuously tortured and harassed her on one or the other count. The respondent wants to marry some other lady therefore, he instituted a suit for divorce under Section 13 B of the Act, which was registered as Civil Case no.69 of 2008 in the Court of Judge, Family Court, Nainital. The petitioner filed an application in the said divorce petition that her consent was obtained under pressure, she wants to live with the respondent and not agreed for divorce. The petitioner prayed for dismissal of the Case no.69 of 2008 filed by the respondent under Section 13 B of the Act. Thereafter, on 05.02.2009 the learned Trial Court dismissed the suit. It is asserted that as the respondent did not challenge the validity of the order dated 05.02.2009 passed by the learned Family Judge, Nainital thus, the order dated 05.02.2009 has attained its finality. It is further stated in the petition that the respondent instituted a fresh Suit under Section 13(1) (i-a) of the Hindu Marriage Act in the Court of Judge, Family Court, Nainital seeking divorce from the petitioner, in which the petitioner filed her written statement and refused to give divorce to the respondent. The petitioner also filed an application under Section 24 of the Act, claiming for maintenance during the pendency of the divorce suit and for expenses for the litigation, to which the respondent filed his objection. Thereafter, vide order dated 01.12.2009 the Court below rejected the application of the petitioner and disallowed the pendent-lite maintenance to the petitioner but merely awarded the expenses of the litigation. 3. The respondent filed counter affidavit in which the allegations made in the petition are denied. It is stated that immediately after the marriage, relations in between the parties got strained and it was not possible for them to live together. The suit for divorce was filed on mutual consent, which was registered as Suit No. 1 of 2008. It is further stated in the counter affidavit that divorce proceedings initiated under Section 13 B of the Act is tenable only on the basis of mutual consent. The petitioner had withdrawn her consent therefore, the Court below dismissed the suit. It is stated that question of attaining finality of the judgment and order dated 05.02.2009 passed by the Court below does not bar any further remedy available to respondent, as such the respondent filed a subsequent Suit No. 69 of 2008 under Section 13 (1) (i-a) of the Act, which is subjudice before the Court below. In the earlier divorce petition certain admissions has been made by the petitioner particularly with regard to the lump sum maintenance amount taken from the respondent alongwith the piece of land. In the earlier proceedings, the petitioner admitted that since she has taken lumpsum amount of maintenance from the respondent, therefore, nothing remained in future and she could not demand in future for the same i.e. maintenance etc. as such the petitioner is not 4 permitted to claim the same because of provisions of principle of estoppel as contemplated under Section 115 of Indian Evidence Act. The respondent has asserted that it is a well settled principle of law that once an admission is made that can never be permitted to be withdrawn or deviated. Therefore, the learned Court below considered the material available on record and after scrutinizing the facts, passed the order dated 01.12.2009 whereby a sum of Rs.15,000/- was awarded towards expenses of litigation despite not legally entitled for the same. It is further stated that the petitioner filed a case under Section 125 Cr.P.C. before the Principal Judge, Family Court Kashipur, District Udham Singh Nagar which was registered as Misc. Case no.48/2009 in which the respondent filed objection and the learned Judge, Family Court, Udham Singh Nagar vide order dated 03.08.2009 directed the respondent to pay interim maintenance @ Rs.1,000/- per month to the petitioner. It is stated that petitioner is getting maintenance @ Rs.1,000/- per month w.e.f. 09.03.2009 from the respondent. Therefore, instant petition filed by the petitioner is devoid of merits and is liable to be dismissed. 4. I have heard Mr. Piyush Garg, learned counsel for the petitioner and Mr. Pradeep Hairiya, learned counsel for respondent and perused the record. 5. Learned counsel for the petitioner submitted that the learned Trial Court has held in its order dated 01.12.2009 that since the wife has renounce her right to claim future maintenance in the earlier petition under Section 13 B of the Act therefore, she cannot claim maintenance and her claim of maintenance is now barred by the principle of estoppel. He submitted that no finding whatsoever has been recorded by the learned Court on the fact of the petitioner/wife denying the receipt of any amount in lieu of future maintenance and assailing the statements made in the petition under Section 13 B of the Act on account of the signatures being obtained in that petition, was under fraud and pressure. He further submitted that the learned Court below has himself recorded a finding in the order dated 01.12.2009 that the wife has no source of income and is therefore, entitled for maintenance and has merely rejected the claim by holding further that since the claim for future maintenance has been renounced by the wife and her claim is barred by the principle of estoppel. He submitted that it is not a case of withdrawal of consent rather it is a case of consent obtained through fraud and under pressure. Learned counsel for the petitioner further submitted that it has been stated by the respondent that a sale deed of the land was executed in favour of the petitioner but nowhere it is alleged that the land was against future maintenance and that certain lump sum amount for future maintenance has been paid to the petitioner. He submitted that the transfer of land was not in lieu of maintenance but was in lieu of monetary consideration of Rs.3,00,000/- being paid by the petitioner to the respondent, the receipt of which, the respondent has acknowledged in the sale deed itself. He argued that the petitioner is still in the hope of settling her married 6 life with the respondent and has therefore, refrained herself from making clarifications regarding the sale deed as the petitioner do not want the same to be public just to save the image of her husband. The petitioner has till date not filed a single complaint against the husband/ respondent and has filed a suit under Section 9 of the Hindu Marriage Act for restitution of conjugal rights. The petitioner filed an application before the Judge, Family Court in the proceedings of Section 13 B of the Act stating therein that her signatures on the petition under Section 13 B of the Act were obtained through fraud and pressure, the respondent did not file any objection and thus, the learned Judge, Family Court passed an order on the basis of the application, that order has never been challenged by the respondent. He further submitted that petitioner has no source of income and is therefore, entitled for maintenance and the Court has dismissed the pendent-lite maintenance only on the alleged ground of estoppel. Learned counsel for the petitioner argued that status of the petitioner and respondent is still of husband and wife and the petitioner cannot be denied of her claim of maintenance during the pendency of her marital status. In support of his arguments the learned counsel for the petitioner relied on the judgments reported in (1997) 4 SCC 226, (1993) 3 SCC 406, 2002 (3) Civil Court Cases 424 (P&H) and AIR 2008 A.P. 216. 6. On the other hand, Mr. Pradeep Hairiya, learned counsel for the respondent denied the allegations made by the petitioner. He argued that suit for divorce was filed on mutual consent and proceedings initiated under Section 13 B of the Act is tenable only on the basis of mutual consent. He submitted that signatures of both the parties in their joint affidavit were identified by the advocates and therefore, it cannot be said that signatures were obtained by fraud. He further submitted that, in any case, impugned order does not bar any further remedy available to respondent as such the respondent filed a subsequent Suit No. 69 of 2008 under Section 13 (1) (i- a) of the Act, which is subjudice before the Court below. He further submitted that in the earlier proceedings, the petitioner admitted that since she has taken lump sum amount of maintenance from the respondent, therefore, nothing remained in future and she could not demand in future for the same i.e. maintenance etc. as such the petitioner is not permitted to claim the same because of provisions of principle of estoppel. He contended that it is a well settled principle of law that once an admission is made that can never be permitted to be withdrawn or deviated and the learned Court below considered the material available on record and after scrutinizing the facts passed the order dated 01.12.2009 whereby a sum of Rs.15,000/- was awarded towards expenses of litigation despite not legally entitled for the same. In support of his submission, the learned counsel for the respondent placed reliance upon para 20 of the judgment reported in (2006) 8 SCC 279, which is being reproduced below: “20. Furthermore, in terms of Order 3 Rule 1 of the Code of Civil Procedure, a litigant is represented by an advocate. A concession made by such an advocate is binding on the party whom he represents. If it is binding on the parties, again subject to just exceptions, they cannot at a later stage resile therefrom. The matter may, however, be different if a concession is made on a question of law. A wrong concession on legal question may not be binding upon his client. Here, however, despite the stand taken by the appellant in its written statement before the High Court the learned advocate consented to appointment of a person as an arbitrator by the High Court in exercise of its jurisdiction under Section 11 of the 1996 Act, in our considered view, the same should not be permitted to be resiled from. A person may have a legal right but if the same is waived, enforcement thereof cannot be insisted.” 7. He further argued that the petitioner filed a case under Section 125 Cr.P.C. before the Principal Judge, Family Court Kashipur, District Udham Singh Nagar in which the learned Judge, Family Court, Udham Singh Nagar directed the respondent to pay interim maintenance @ Rs.1,000/- per month to the petitioner. It is stated that petitioner is getting maintenance @ Rs.1,000/- per month w.e.f. 09.03.2009 from the respondent. Therefore, instant petition filed by the petitioner is devoid of merits and is liable to be dismissed. 8. I have heard learned counsel for the parties and examined the papers annexed with the writ petition and the counter affidavit. The learned Judge, Family Court rejected the application of the petitioner 9 u/s 24 of the Act only on the ground that earlier she had filed an affidavit dated 27.06.2008 in the proceeding u/s 13- B of the Act in which she undertook not to demand any maintenance in future. The learned Judge, Family Court failed to consider her another affidavit dated 31.01.2009 in which she had mentioned that signature in earlier affidavit was done under influence. Learned Judge, Family Court also failed to appreciate that in view of subsequent affidavit dated 31.01.2009, he dismissed the suit filed under Section 13-B of the Act. Case law cited by the counsel for the respondent will not help him, as in present case the petitioner in her subsequent affidavit dated 31.01.2009 specifically mentioned that earlier affidavit dated 27.06.2008 was signed by her under the influence. 9. In view of above discussion, the writ petition is partly allowed. Part of the order by which direction was issued to respondent to pay Rs.15,000/- as expenses is upheld. Remaining part of the order dated 01.12.2009 passed by Judge, Family Court, Nainital by which claim for the petitioner for maintenance was rejected, is quashed. The Judge, Family Court, Nainital is directed to decide application of the petitioner u/s 24 of the Act afresh in accordance with law. (V.K. Bist, J.) Arpan 30.07.2010