APURVA ANAND  Vs CHANCHAL NIRANJAN

CM (M) 426/2020 Page 1 of 8$~3
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of decision: 29thJanuary, 2021
+ CM(M) 426/2020 & CM APPL. 20237/2020
APURVA ANAND ….. Petitioner
Through: Dr. Aman Hingorani & Mr. Himanshu
Yadav, Advocates.
versus
CHANCHAL NIRANJAN ….. Respondent
Through: None.
CORAM:
JUSTICE PRATHIBA M. SINGH
Prathiba M. Singh, J. (Oral)
1. This hearing has been done through video conferencing.
2. The Petitioner – Mr. Apurva Anand was married to Ms. Chanchal
Niranjan on 11thJuly, 2008. The Petitioner filed a divorce petition under
Section 13(1)(ia) of the Hindu Marriage Act, 1955 ( hereinafter, ‘Act’ ),
seeking divorce from his wife on 4thOctober 2016. Vide judgment dated 6th
August, 2020, the Family Court, Patiala House Courts, Central District
granted a decree of divorce to dissolve the marriage solemnised in the
following terms:
“28. In the present proceedings, the conduct of the
respondent has been to delay the matter as also she has
not sincerely contested the case. Since the defense of the
respondent was struck off, she could cross examine the
petitioner only on legal issues. It is not permissible to
the respondent to cross-examine the respondent on the
basis of her pleas taken in written statement as also the
filing of written statement was permitted subject to the
payment of costs which was not complied with. In these
circumstances, the pleas taken by the respondent in her
defence cannot be considered or appreciated.
2021:DHC:348CM (M) 426/2020 Page 2 of 829. The petitioner has been able to establish his case
by way of oral and documentary evidence. The
respondent has not been able to demolish the case of the
petitioner by way of cross-examination or by way of
leading her own evidence. I, therefore conclude that
petitioner has been able to prove and make out a case
for grant of divorce.
30. On the basis of above observations, I grant the relief
in favour of the petitioner. Accordingly, the marriage
between the petitioner Apurva Anand and respondent
Chanchal Niranjan is hereby dissolved U/s 13(1) (i-a)
of the Hindu Marriage Act, 1955.”
3. However, on the same very date, notice has been issued in the
application under Section 24 of the Act, vide a separate order, and the Family
Court has called for detailed affidavits to be filed as to the expenditure, assets
and liabilities of both the Petitioner and Respondent. It is this order passed in
the said application under Section 24 of the Act which is under challenge in
the present writ petition.
4. Dr. Hingorani, ld. counsel for the Petitioner, submits that in view of the
fact that the Respondent has abandoned her defence in the petition for
divorce, application under Section 24 of the Act would not survive. Reliance
is placed upon the judgment in the divorce petition dated 6thAugust 2020,
wherein the conduct of the Respondent has been set out in detail. Dr.
Hingorani, ld. counsel has also relied upon the judgment of the ld. Single
Judge of this Court in Rita Mago v. V.P. Mago, 20(1981) DLT 103 .
5. In the present case, vide order dated 18thSeptember, 2020, further
proceedings in the Section 24 application were stayed by this Court. On the
said date, Respondent was duly represented by her counsel. However, no
counter affidavit has been filed in this petition. Even today, there is no
2021:DHC:348CM (M) 426/2020 Page 3 of 8appearance on behalf of the Respondent.
6. In the judgment granting the decree of divorce dated 6thAugust, 2020,
the Family Court has recorded as under:
“11. Notice of the petition was duly served upon the
respondent before the court of metropolitan magistrate
where the proceedings under Domestic Violence Act
were pending, but the respondent did not promptly
appear before this court. The court fixed the case for
filing written statement but no written statement was
filed, resultantly on 06.06.2017, the respondent was
proceeded against exparte and matter was listed for
exparte evidence. However, on the next date i.e.
25.09.2017, counsel for respondent Sh. Rakesh Kumar
appeared and sought setting aside of the exparte order,
without moving any application. The matter was again
listed for exparte evidence as per the convenience of the
petitioner who was to come from Australia. On
22.11.2017, an application under Order 9 Rule 7 CPC
was moved on behalf of respondent, which was allowed
subject to the cost of Rs.15,000/and respondent was
given last opportunity for filing written statement within
15 days alongwith detailed income affidavit. On the next
date i.e. 22.02.2018 the counsel for the respondent
appeared but neither the cost was paid nor the written
statement was filed. The court imposed further cost of
Rs.2,000/ and fixed the matter for 19.04.2018 when the
respondent moved an application for waiver of cost,
which was dismissed. The written statement and
application under Order 24 HMA was taken on record
despite the objections of the petitioner that proceedings
are being delayed by the respondent.
…
14. During the course of proceedings, on 26.09.2018,
finding that respondent has not paid the costs imposed
by the court, despite various opportunities, defence of
the respondent was struck off and matter was listed for
Petitioner Evidence. On 03.01.2019, the court noted
2021:DHC:348CM (M) 426/2020 Page 4 of 8that respondent was not interested in pursuing her
matter seriously, but at her request granted one
opportunity subject to further cost of Rs.5,000/ for
adjournment.
15. On 20.03.2019 petitioner was examined as PW1 and
partly cross examined and the respondent also moved
application seeking recalling of the orders of striking off
the defence and imposition of costs. On 10.12.2019 this
application of the respondent was dismissed.
16. The petitioner appeared on 02.03.2020 when there
was no appearance on behalf of respondent and
accordingly opportunity for cross examination of the
petitioner was closed as also the petitioner’s evidence.
….
18. Arguments have been advanced by Ld. Counsel for
petitioner Dr. Aman Hingorani (through video
conferencing) and written submissions have also been
filed on record. However, despite various opportunities
arguments have not been advanced on behalf of the
respondent.
…
28. In the present proceedings, the conduct of the
respondent has been to delay the matter as also she has
not sincerely contested the case….””
7. A perusal of the above extracts from the judgment dated 6thAugust,
2020 shows that the Respondent did not contest the divorce petition at all. The
defence of the Respondent was struck off and the cross-examination of the
Petitioner was also of a limited nature. Considering that on the merits of the
matter, the Respondent had not set out any substantial defence and the decree
of divorce has been granted without contest, it appears that the Respondent is
no longer interested in pressing the application under Section 24 of the Act,
which is meant only for interim maintenance pendente lite.
8. The judgement in Rita Mago (supra) relied upon by the Petitioner has
2021:DHC:348CM (M) 426/2020 Page 5 of 8been considered by a ld. Division Bench of this Court in Akash Chadha Vs.
Preeti Khanna (Mat. App. (FC) 101/2016, decided on 1stAugust 2016). The
ld. Division Bench agreed with the view taken by the Ld. Division Bench of
the Punjab & Haryana High Court in Sohan Lal v. Kamlesh (AIR 1984 P&H
332). The ld. Division Bench of the Punjab and Haryana High Court in Sohan
Lal (supra) has held:
“5. The first question that arises for determination is
that if the main petition under the Act is decided finally,
whether the application for maintenance pendente lite and
litigation expenses under S. 24 of the Act, which is
pending decision, can continue. Section 24 deals with
maintenance pendente lite and expenses of proceedings. It
reads as follows: –
”Where in any 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 to the petitioner the expenses of the
proceeding, and monthly during the
proceeding such sum as, having regard to
the petitioner’s own income and the income
of the respondent, it may seem to the Court to
be reasonable.”
From a reading of the section, it is evident that the Court,
during the pendency of the proceedings under the Act,
viz., for restitution of conjugal rights, judicial separation,
divorce or nullity of marriage, can grant to a spouse
having no sufficient come to maintain himself/herself and
to meet the necessary expenses of the proceeding,
maintenance pendente lite and litigation expenses. The
object of enacting the section is that an indigent spouse
2021:DHC:348CM (M) 426/2020 Page 6 of 8should not suffer during the pendency of the proceedings
because of his/her poverty. It is the duty of the Court to
decide such an application expeditiously so that the
indigent spouse is not handicapped because of want of
funds. However, if the application under S. 24 is not
decided during the pendency of the main petition on
account of dilatory tactics of the other spouse or for some
unforeseen circumstances, the whole purpose of the
section stands frustrated in case it is dismissed on the
ground that after the decision of main petition it does not
survive. Therefore, we are of the view that even if the main
petition is decided finally, the application under Section
24 which is pending decision can continue.
……
10. In Smt. Chitra Lekha’s case AIR 1977 Del 176
(supra) the petition was filed by the husband under
Section 10(1)(b) of the Hindu Marriage Act for judicial
separation. The wife made an application under Section
24 for grant of interim alimony and litigation expenses.
Before disposal of the application under Section 24, the
husband’s petition was dismissed for default.
Consequently, the application under Section 24 was also
dismissed. An appeal against the order under Section 24
was dismissed observing that no interim alimony and
litigation expenses can be granted after termination of the
proceedings. The same view was taken in Rita Mago’s
case 1982 HLR 201 (Delhi)(supra). With great respect to
the learned Judges, we have not been able to persuade
ourselves to accept that view.
11. The second question that arises for
determination is that if the application under Section 24
continues after dismissal of the main petition, whether the
applicant is entitled to the maintenance till the date of
decision of the main petition or the disposal of the
application under Section 24. Section 24 has already been
reproduced above. The word “proceeding” in the section
appears at three places and it connotes the main
proceedings, that is, proceedings other than proceedings
under Section 24. The words “monthly during the
2021:DHC:348CM (M) 426/2020 Page 7 of 8proceedings such sum” are very important. These words
show the intention of the legislature that it intended to
give maintenance to the indigent spouse till disposal of the
main petition. If the application under Section 24 is taken
to be included in the word “proceeding”‘, anomalous
results would follow. Therefore, we are of the opinion that
if the application under Section 24 continues after
dismissal of the main petition, the applicant is entitled to
the maintenance till the date of the decision of the main
petition. In Sudarshan Kumar Khurana’s case (AIR 1981
Punj & Har 305) (supra), a different view has been
expressed by the learned single Judge wherein it was
observed that there was no justification for not awarding
maintenance pendente lite to the wife even beyond the
conclusion of the main petition till proceedings under Ss.
24 and 26 of the Act were finalised. With great respect to
the learned Judge, we do not agree with the above
observations. Consequently, we overrule the said case to
this extent only, However, it may be reiterated that we
have approved the other observations of the learned
Judge in this case, as mentioned above.”
Thus, the Punjab and Haryana High Court differed with the view taken in Rita
Mago ’s(supra) case. The ld. Division Bench of this court in Akash Chadha
(supra) , agreeing with this view of the Punjab & Haryana High Court held:
“3. This Court is also of the opinion that if the
reasoning in Chitra Lekha (supra) is allowed to stand,
unanticipated hardship could ensue frequently to those
moving the Court under Section 24. For instance, in the
event a substantive claim for matrimonial relief is made
by the husband and the wife’s application under Section
24 is pending for an unduly long period, of say one or two
years, the exercise of choice by the husband to withdraw
the petition for reasons best known to him – and the
application of the rule that no maintenance would be
granted even for the limited duration, would cause untold
hardship. Situations could well arise where in such event,
husband, for tactical reasons, withdraws the substantive
2021:DHC:348CM (M) 426/2020 Page 8 of 8proceeding despite knowledge that his wife is deprived of
sources of income or livelihood.
4. The other reason which persuades us to accept the view
in Sohan Lal (supra) is that Section 24 itself provides the
clue to holding that it has an independent life apart from
the main proceeding – (although for a limited period apart
from the main proceedings) because it constitutes a
“proceeding” by itself. Thus, while the matrimonial court
might be constrained not to grant relief under Section 24
beyond the date when the main proceeding has ceased,
nothing prevents it from doing so for the limitation
duration from the filing of such application and the
cessation of proceedings.”
9. Thus, the legal position is that a Section 24 application under the Act
can survive beyond the dismissal of the main proceeding for grant of divorce,
in respect of the period till the dismissal of the said petition. The decision in
Rita Mago (supra) cited by the Petitioner, may no longer be good law.
10. However, this issue need not be gone into in the present petition as the
Respondent did not take any defence in the divorce petition. She in fact chose
not to even file the written statement. Even before this Court, after being
served, the Respondent has not entered appearance. Under such
circumstances, this Court concludes that the Respondent is no longer
interested in pursuing the application under Section 24 for interim
maintenance. The said application under Section 24 is accordingly dismissed.
11. This petition is allowed and all pending applications are disposed of in
the above terms.
PRATHIBA M. SINGH
JUDGE
JANUARY 29, 2021
Rahul/Ak
(Corrected & released on 2ndFebruary, 2021)
2021:DHC:348