SHAILESH KUMARI Vs. AMOD KUMAR SACHAN

JUDGEMENT

(1.) This is an application for release of amount of pendente lite maintenance.

(2.) This application has been moved with the prayer that the entire amount of pendente lite maintenance of the applicant -appellant may be released in pursuance to the order dated 4.12.2012 passed by this Court and confirmed vide order dated 15.4.2014 passed by the Hon'ble Supreme Court.

(3.) The applicant -appellant filed First Appeal No.91 of 2006 and the said appeal came to be decided in her favour vide order dated 6.11.2015 and it is stated that when the appeal was decided, the pendente lite amount which was directed to be deposited by this Court could not be released in favour of the applicant -appellant due to the fact that the matter went up to the Hon'ble Supreme Court against the order passed by this Court wherein the applicant -appellant pressed for release of the amount, which was refused by this Court and later on, the Hon'ble Supreme Court affirmed that order. During the course of hearing of the appeal, again an application was moved for release of the amount, which was rejected by this Court vide order dated 13.8.2015. 4.Thereafter, the appeal was heard and allowed. While allowing the appeal, this Court could not take into consideration the request of the applicant -appellant for releasing the pendente lite maintenance deposited before this Court. 5.It has been submitted by the learned counsel for the applicant -appellant that the applicant -appellant is facing long drawn litigation and she has to engage various lawyers before this Court as well as before the Hon'ble Supreme Court where the SLP is now pending and the judgment of this Court has been stayed. 6.Learned counsel submits that for engaging the Advocate in the Hon'ble Supreme Court and also for pursuing the appeal in the Hon'ble Supreme Court, she is in the need of amount and she cannot face the litigation from her salary, which is being paid to her, in this scenario of inflation. It is submitted that the husband of the applicant -appellant is a Doctor and running a hospital and is having a huge income as compared to the income of the applicant -appellant. The applicant -appellant is facing financial hardship in this long drawn litigation and hence, she is entitled for release of the pendente lite maintenance, which has been deposited in this Court. 7.He has relied upon the judgment rendered in the case of Pratima Yadav v. Vinod Kumar Yadav, 2013 (5) ALJ 48 and the cases relied upon in the said judgement i.e. Vinod Kumar Kejriwal v. Usha Vinod Kejriwal, AIR 1993 Bombay 160, Chitra Sengupta v. Dhruba Jyoti Sengupta, AIR 1988 Calcutta 98, Sohan Lal v. Smt. Kamlesh, AIR 1984 Punjab and Haryana 332, Amrik Singh v. Smt. Narinder Kaur, AIR 1979 Punj and Hary 211 and N. Subramanyam v. Mrs. M. G. Saraswathi, AIR 1964 Mys 38. 8.Learned counsel for the respondent has filed an objection and refuted the argument of the learned counsel for the applicant -appellant and has submitted that once the Court has decided the appeal, it has become functus officio and cannot pass any order. If the amount has been deposited, then the same cannot be released by this Court after the final judgment is passed. He has relied upon the judgments rendered in the case of Dwaraka Das v. State of M.P. and another, (1999) 3 SCC 500, State of Rajasthan v. Teja Ram and others, (1999) 3 SCC 507, Jayalakshmi Coelho v. Oswald Joseph Coelho, (2001) 4 SCC 181, State of Punjab v. Darshan Singh, (2004) 1 SCC 328, Dy. Director, Land Acquisition v. Malla Atchinaidu and others, (2006) 12 SCC 87 and State Bank of India and others v. S.N. Goyal, (2008) 8 SCC 92. 9.The question before this Court is as to whether the Court has become functus officio after decision of the appeal or still has right to release pendente lite maintenance, which still lies with the Court without any order. What should be the provisions in matrimonial matters In matrimonial matters, this Court has already taken a view in the case of Pratima Yadav (supra) wherein it was held that if the suit for divorce is dismissed as withdrawn, termination of proceedings cannot be treated as bar for providing interim maintenance and the trial court failed to implement the order of the revisional court granting ad interim maintenance at the time of withdrawing suit and this Court after relying upon various judgments of various High Courts in paragraphs -7, 8, 9, 10 & 11 held as under: -