NEETA SHREYAS JOSHI Vs. SHREYAS SIDDHARATH JOSHI

JUDGEMENT

(1.) This Civil Revision Application under Sec. 115 of the Code of Civil Procedure is directed against the order dated 21/01/1999 passed by the City Civil Court, No. 9, Ahmedabad City, below Application Exh. 45 in Hindu Marriage Petition No. 72 of 1996.

(2.) . The petitioner and the respondent who will be hereinafter referred to as the wife and husband, were married on 6/12/1994, at Ahmedabad. They resided together at Bombay upto 29/03/1995. In the end of March 1995, the wife was sent or came back to Ahmedabad to appear in the examination. The wife's case is that the husband did not take her back to Bombay after the exams were over and the case of the husband is that the wife did not return. The husband then filed a petition for divorce under Sec. 13 of the Hindu Marriage Act against the wife on the ground of non-consummation of marriage and the physical as well as mental cruelty, on 7/02/1996, in the City Civil Court, at Ahmedabad, which was registered as Hindu Marriage Petition No. 72 of 1996. The wife preferred a petition for restitution of conjugal rights under Sec. 9 of the Hindu Marriage Act in the Family Court Bombay on 11/06/1996 which was registered as MJA-1103 of 1996. In this application for restitution of conjugal rights, the wife also moved an application under Sec. 24 of the Hindu Marriage Act claiming maintenance pendente lite and the expenses to meet the litigation. This application was moved by the wife on 9/08/1996 before the Family Court at Bombay and on 2 5/07/1997, the Family Court at Bombay passed an order granting maintenance of Rs. 4,000/- per month to the wife with effect from 9-8-1996, i.e., from the date on which the application under Sec. 24 had been moved. On behalf of the husband this order dated 25-3-1997 has been sought to be referred as ex parte order, merely because the husband or his Counsel did not remain present despite the notice of the wife's application under Sec. 24 of the Act. Thus, the proceedings between the two spouses were going on against each other with regard to divorce petition as filed by the husband in the Court at Ahmedabad and with regard to the restitution of conjugal rights as moved by the wife in the Family Court, at Bombay. Whereas the order with regard to the maintenance pendente lite had been passed by the Family Court, at Bombay in favour of the wife. she did not move any separate allocation for maintenance under Sec. 24 of the Act in the proceedings for divorce as initiated by her husband at the Ahmedabad Court, but she only moved for expenses of the litigation of the divorce petition and the Court at Ahmedabad passed an order for payment of Rs. 5,000.00 against the expenses of the litigation.. According to the husband, the amount of maintenance at the rate of Rs. 4,000.00 per month as was granted by the Family Court at Bombay was paid by him upto July 1998, whereas according to the wife, it is paid only upto June 1998 and it is also stated that on 25/12/1998. a sum of Rs. 1,1 00.00 was paid to the wife in addition to the amount paid earlier up to June/July, 1998. The husband's case is that in all, he has paid a sum of Rs. 92,000.00 besides the amount of Rs. 1,100.00, paid on 25/12/1998. It is also the case of the husband that he is essentially a Chemical Engineer, but on account of some subsequent developments, his income was reduced and, therefore, he moved an application in the Family Court at Bombay for reduction of the amount of the maintenance on 17/03/1998 being Misc. Application No. 395 of 1998 and the same is said to be pending. However, the fact remains that even as per the case of the husband himself, the regular maintenance amount has not been paid after 9/06/1998. It is submitted on behalf of the husband that the proceedings in the divorce petition at Ahmedabad Court has reached the stage of evidence and so far as the proceedings initiated by the wife for restitution of conjugal rights in the Family Court at Bombay is concerned, it is given out on behalf of the husband that he has already filed the reply to the main application for restitution of conjugal rights and thereafter the proceedings are going on, on his application for reduction of the amount of maintenance and no maintenance is being paid after July 1998.

(3.) . On 9/12/1998, the wife, i.e., the present petitioner before this Court moved an application before the City Civil Court No. 9, Ahmedabad, in the petition filed by the husband, praying that the proceedings in this petition be stayed because the husband, i.e., petitioner seeking divorce had not paid the amount of maintenance as was ordered by the Family Court, at Bombay. On her behalf, the grievance has been voiced that she had not moved an application under Sec. 24 in the divorce petition filed by her husband because the maintenance pendente lite had already been granted by the Family Court, at Bombay and no payment had been made in pursuance of that order against the maintenance after June 1998 and that in absence of the payment of regular maintenance after June 1998, it was not possible for her to meet the expenses to maintain herself. It is also her case that she has also applied for execution of the order of maintenance pendente lite in January 1999 before the Family Court at Bombay and that application for execution is also pending. However, the wife's application dated 9/12/1998 moved before the Court at Ahmedabad to stay the proceedings in the divorce petition filed by the husband has been rejected by the Civil Court No. 9, Ahmedabad City, on 21/01/1999. It is against this order dated 21/01/1999, that the present Civil Revision Application under Sec. 115 of the Code of Civil Procedure was filed before this Court, wherein the husband had already entered a caveat dated 10/02/1999 and on 12/02/1999 after hearing both the sides, the Rule was issued and the same was to be heard on 31/03/1999 as the service had been waived on behalf of the respondent-husband. On 12/02/1999, after hearing both the sides and in presence of both the sides, the following order was passed :