The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) No.31902 of 2024 (An application under Articles 226 & 227 of the Constitution of India) Ananya Routray … Petitioner -versus- Dr. Nihar Ranjan Ray … Opposite Party For Petitioner : Mr. A.K. Mohanty, Advocate For Opposite Party : Mr. S. Dash, Advocate CORAM: HON’BLE MR. JUSTICE G. SATAPATHY DATE OF HEARING :28.02.2025 DATE OF JUDGMENT:15.05.2025 G. Satapathy, J. 1. By means of this writ petition, the petitioner-wife has invoked the extraordinary jurisdiction of this Court under Articles 226 & 227 of Constitution of India praying to quash the order dated 28.11.2024 passed by learned Judge, Family Court, Cuttack in CMA No.1 of 2023 rejecting the claim of the petitioner-wife for pendente lite maintenance and W.P.(C) No.31902 of 2024 Page 1 of 15 litigation expenses in an application under Section 24 of the Hindu Marriage Act, 1955 (in short, “the Act”). 2. The undisputed facts in the present litigation are that the petitioner and OP are admittedly wife and husband and their marriage was solemnized on 24.06.2010 and the opposite party was working as Surveillance Medical Officer in World Health Organization (WHO) at the relevant time of marriage and both of them had stayed together as husband and wife for some period and a girl child was born out of their wedlock, but later on, when dissension arose between them, they started living separately leading to filing of many litigations against each other and one of such litigation is in the present case for divorce under Section 13 of Hindu Marriage Act in which the petitioner-wife unsuccessfully approached the learned trial Court for pendente lite maintenance and litigation expenses which ultimately travelled to this Court. 3.
Legal Reasoning
In assailing the impugned order, Mr. Amiya Kumar Mohanty, learned counsel for the petitioner has submitted that the learned trial Court has erred in law W.P.(C) No.31902 of 2024 Page 2 of 15 by rejecting the application of the petitioner-wife for grant of pendente lite maintenance and litigation expenses by erroneously observing that since the petitioner and her daughter are getting ad interim maintenance in IA No.52 of 2021 arising out of CP No.468 of 2021 which is pending for adjudication, but fact remains that the proceeding in CP No.468 of 2021 being brought under Section 18/20 of Hindu Adoption and Maintenance Act (in short, “the HAMA”) for grant of maintenance to the petitioner and her daughter, the same cannot be equated and considered for the interim application filed under Section 24 of the Act in a proceeding for divorce in CP No.340 of 2022 which is instituted by the OP-husband against the petitioner- wife. Mr. A.K. Mohanty, has also submitted that the learned trial Court has further erred in not striking of the defence/pleadings of the OP-husband for non- compliance of filing of disclosure affidavit of assets & liabilities within the time in terms of the law laid down by Apex Court in Rajnesh vs. Neha and another; (2021) 2 SCC 324, which prescribes for disclosure of W.P.(C) No.31902 of 2024 Page 3 of 15 such affidavit by the respondent within a maximum period of four weeks, but the learned trial Court ignoring the mandate of law has allowed the opposite party-husband in this case to file his disclosure affidavit subsequently and refused to grant pendente lite maintenance to the petitioner. In relying upon the decision Rajnesh (supra), Mr. Mohanty has also submitted that the petitioner-wife has definitely right to claim maintenance under Section 24 of the Act and in case, the Court is of the view that the petitioner is also awarded with maintenance in any previously instituted proceeding, it is under legal obligation to pass appropriate order to grant maintenance by adjusting or setting of the amount as directed to be paid to the petitioner-wife in an earlier proceeding and therefore, the impugned order being unsustainable is liable to be set aside and the OP-husband may kindly be directed to pay the petitioner-wife and their daughter a sum of Rs.1,20,000/- per month as pendente lite maintenance and a sum of Rs.20,000/- per month as litigation expenses to the petitioner-wife. W.P.(C) No.31902 of 2024 Page 4 of 15 In reply, Mr. Suryakant Dash, learned counsel for OP while controverting the claim of the petitioner has vehemently argued and submitted that not only the petitioner and her daughter are getting monthly maintenance of Rs.30,000/- from the OP, but also has sought for relief under Section 12 of the Protection of Women from Domestic Violence Act, 2005 (in short, “the PWDVAct”) which include monetary relief of maintenance and, therefore, the petitioner-wife is not entitled to any pendente lite maintenance in the present proceeding. He accordingly has prayed to
Decision
dismiss the writ Petition. 4. After having considered the rival submissions upon perusal of record, it appears that the parties in this case are in chronic matrimonial dispute and both of them have instituted different proceedings against each other and in some of the cases, the litigation has travelled to this Court. Besides the present case, which arises out of a divorce proceeding, the petitioner-wife has admittedly filed two other proceedings, out of which one in CP No.468 of 2021 is a W.P.(C) No.31902 of 2024 Page 5 of 15 proceeding under Sections 18 and 20 of the HAMA for grant of maintenance in which the petitioner has filed an application for grant of interim maintenance in IA No.52 of 2021, which was admittedly disposed of by the learned trial Court granting interim maintenance to the petitioner and her daughter for a sum of Rs.35,000/- (Rs.25,000/- to petitioner and Rs.10,000/- to the daughter), which was of course assailed by the OP in W.P.(C) No.3864 of 2022 and this Court by an order passed on 08.02.2023 confirmed the interim maintenance of the daughter @ Rs.3000/- per month and Rs.7,000/- per month as study expenses (total Rs.10,000/-) while remitting the matter back to the learned trial Court for fresh adjudication to decide the quantum of interim maintenance to the petitioner-wife and further directed to pay Rs.15,000/- per month to the petitioner-wife till disposal of IA No.52 of 2021 as interim arrangement. It is in fact not disputed that the petitioner has also approached this Court in W.P.(C) No.41413 of 2021 for enhancement of interim maintenance as granted to her and her daughter in I.A. W.P.(C) No.31902 of 2024 Page 6 of 15 No.52 2021 by the learned trial Court, but the said writ petition was disposed of by this Court on 08.02.2023 by reiterating the fact that the matter has already remitted for fresh disposal in W.P.(C) No.3864 of 2022 with regard to decide the quantum of maintenance to the petitioner. However, the petitioner has admitted in the writ petition that IA No.52 of 2021 arising out of CP No.468 of 2021 has already been disposed of by the learned trial Court quantifying the quantum of interim maintenance to the petitioner @ Rs.20,000/- per month and thereby, the total interim maintenance as quantified to the petitioner and her daughter is Rs.30,000/-. 5. The plea of petitioner is for grant of pendente lite maintenance and litigation expenses in the present proceeding in CMA No.01 of 2023 is over and above the amount granted in IA No.52 of 2021 arising out of CP No.468 of 2021 and in support of such claim, the petitioner has also relied upon the decision in Rajnesh (supra), wherein the Apex Court at paragraph Nos.60 & 61 has observed as under:- W.P.(C) No.31902 of 2024 Page 7 of 15 “60. It is well settled that a wife can make a claim for maintenance under different statutes. For instance, there is no bar to seek maintenance both under the D.V. Act and Section 125 of the Code of Criminal Procedure, or under H.M.A. It would, however, be inequitable to direct the husband to pay maintenance under each of the proceedings, independent of the relief granted in a previous proceeding. If maintenance is awarded to the wife in a previously instituted proceeding, she is under a legal obligation to disclose the same in a subsequent proceeding for maintenance, which may be filed under another enactment. While of maintenance subsequent proceeding, the civil court/family court shall take into account the maintenance instituted awarded in any previously the and proceeding, maintenance payable to the claimant. determine quantum deciding the the in the shall disclose 61. To overcome the issue of overlapping jurisdiction, and avoid conflicting orders being passed in different proceedings, we direct that in a subsequent maintenance proceeding, the Applicant previous maintenance proceeding, and the orders passed therein, so that the Court would take into consideration the maintenance already awarded in the previous proceeding, and grant an adjustment or set-off of the said in the amount. If the order passed previous any modification or variation, the party would be required to move the concerned court in the previous proceeding.” proceeding requires A careful reference to the observation of the Apex Court as stated above, it appears that the W.P.(C) No.31902 of 2024 Page 8 of 15 Apex Court is also quite conscious of the fact that husband cannot be directed to pay maintenance under each of the proceedings independent of the relief granted in a previous proceeding which is apparent from observation that it would be, however, inequitable to direct the husband to pay maintenance under each of the proceedings. At this stage, this Court considers it appropriate to refer to the provision of Section 24 of the Act which is couched in very plain language that where in a proceeding under this Act, it appears to the Court that either the wife or the husband, as the case may be, has no independent income sufficient for her or his support and the necessary expenses of the proceeding, it may, on the application of the wife or the husband order the respondent to pay the petitioner the expenses of the proceeding and monthly during the proceeding such as, having regard to the petitioner’s own income and the income of the respondent, it may seems to the Court to be reasonable xxx xxx xxx xxx. W.P.(C) No.31902 of 2024 Page 9 of 15 It, therefore, very clear that the word “pendente lite” used in this section itself refers to the pendency of the proceeding and the grant of financial support for sustenance of the party who has no independent income sufficient for her support, but the grant of pendente lite maintenance has to be considered in the light of aforesaid to keywords as used in the section. In this regard, this Court is also alived with the principle as laid down in Manish Jain Vs. Akanksha Jain; (2017) 15 SCC 801, wherein at paragraph-15 and 16 the Apex Court has held as under:- “15. Section 24 of the HM Act empowers the Court in any proceeding under the Act, if it appears to the Court that either the wife or the husband, as the case may be, has no independent income sufficient for her or his support and the necessary expenses of the proceeding, it may, on the application of any one of them order the other party to pay to the petitioner the expenses of the proceeding and monthly maintenance as may seem to be reasonable during the proceeding, having regard to also the income of both the applicant and respondent. Heading of Section 24 of the Act is “Maintenance pendente of and proceedings”. The Section, however, does not use the word “maintenance”; but the expenses lite the W.P.(C) No.31902 of 2024 Page 10 of 15 word “support” can be interpreted to mean as Section 24 is intended to provide for maintenance pendente lite. that the circumstance 16. An order for maintenance pendente lite or for costs of the proceedings is conditional on the wife or husband who makes a claim for the same has no independent income sufficient for her or his support or to meet the necessary expenses of the proceeding. It is no answer to a claim of maintenance that the wife is educated and could support herself. Likewise, the financial position of the wife’s parents is also immaterial. The Court must take into consideration the status of the parties and the pay capacity maintenance and whether the applicant has any independent income sufficient for her or his support. Maintenance is always dependent upon factual situation; the Court should, for maintenance determining the quantum based on various factors brought before the Court.” therefore, mould the claim spouse the to of 6. This Court, however, noted the submission made for the petitioner for non-disposal of the proceeding Under Section 24 of the Act within 60 days as stated in the proviso to Section 24 of the Act, but the word used therein “as far as possible” makes it clear that endeavors should be made to dispose of the application of the parties Under Section 24 of the Act as expeditiously as possible, but the opposite party cannot W.P.(C) No.31902 of 2024 Page 11 of 15 be penalized merely because the said proceeding has been disposed of after 60 days, however, discretion is with the Court if the parties neglects without sufficient cause or plays dilatory tactics from disposing such proceeding can proceed in the manner by striking out defence or imposing costs to the party guilty of negligence or any other mode permissible under law. Be that as it may, in this case, it is not disputed that the petitioner is getting Rs.20,000/- per month as interim maintenance in CP No.468 of 2021 and her daughter is getting Rs.3,000/- per month as maintenance & Rs.7,000/- per month as study expenses, which are sufficient in the present context of the litigation between the parties. It is no doubt true that in case the Court feels that the amount as ordered in the earlier proceeding is not sufficient, it can grant some more in another proceeding by adjusting or taking into consideration the maintenance as granted in the previous proceeding, but the grant of pendente lite maintenance in Section 24 of the Act is based on the principle of grant of such maintenance for the W.P.(C) No.31902 of 2024 Page 12 of 15 sustenance of the party and for litigation expenses. Further, it is relevant that the petitioner has not only litigating with the OP in the present proceeding, but also she has filed independent proceedings in CP No.468 of 2021 and proceeding under DV Act and has also approached this Court in different proceedings and, therefore, the interim maintenance as granted in CP No.468 of 2021 can be considered to be sufficient for the sustenance of the petitioner and her daughter. However, this Court considers that since the petitioner was not aware of the present proceeding in CP No.340 of 2022 which is a proceeding instituted by OP, the petitioner deserves some litigation expenses in terms of the provision of Section 24 of the Act. It is no doubt true that the petitioner has claimed litigation expenses on monthly basis, but the litigation has already travelled around three years in the meanwhile and since the petitioner has approached this Court in many proceedings, some litigation expenses should be granted to her on lump sum. W.P.(C) No.31902 of 2024 Page 13 of 15 7. The petitioner has of course relied upon the decision in Partha Sakha Maity vs. Bijali Maity; (2024) SCC Online, Calcutta 4389 to direct the opposite party to pay monthly litigation expenses, but Section 24 of the Act makes it very clear that the grant of litigation expenses either of the spouse is within the discretion of the Court. This Court firmly believes that the grant of pendente lite maintenance and litigation expenses would depend on the facts and circumstances of individual case and it is not obligatory on the part of the Court to grant monthly litigation expenses. It is of course observed by the Calcutta High Court that it would be reasonable to grant litigation expenses on monthly basis, but the same is not binding on this Court, rather it has got some persuasive value. Looking at the claim as advanced by the petitioner and taking into consideration the facts involved in this case, this Court considers that a sum of Rs.25,000/- to the petitioner for litigation expense would meet the ends of justice. Accordingly, the petitioner is required to pay only Rs.25,000/- towards lump sum litigation expenses, W.P.(C) No.31902 of 2024 Page 14 of 15 but this Court, however, confirms the order passed by the learned trial Court in rejecting the claim for grant of pendente lite maintenance in view of the fact that the petitioner and her daughter are being ordered to be paid for a sum of Rs.30,000/- in toto towards interim maintenance in CP No.468 of 2021. 8. In the result, the writ petition stands allowed to the extent of paying of litigation expenses of Rs.25,000/- which shall be payable within one week of re-opening of the Court after vacation. Consequently, the impugned order rejecting the claim for pendente lite maintenance to the petitioner stands confirmed. (G. SATAPATHY) JUDGE Orissa High Court, Cuttack, Dated the 15th of May, 2025/Jayakrushna Signature Not Verified Digitally Signed Signed by: JAYAKRUSHNA DASH Reason: Authentication Location: High Court of Orissa, Cuttack Date: 15-May-2025 18:00:39 W.P.(C) No.31902 of 2024 Page 15 of 15