ANISH RANJAN Vs. REETA KUMARI

JUDGEMENT

(1.) THIS interlocutory petition has been filed by the opposite party for a direction to the petitioner for payment of an interim maintenance and litigation cost to the opposite party during the pendency of the civil revision application in compliance of order, dated 2.8.2005, passed by the Principal Judge, Family Court, Patna, in Misc. Case No. 2 of 2003. The civil revision application has been admitted for hearing, but no stay has been granted, so far the impugned order is concerned, as such, the petitioner must pay the arrears as well as month to month payment of ad interim maintenance and the litigation cost.

(2.) PETITIONER in the civil revision application is the husband of opposite party, who had filed Matrimonial Case No. 207 of 2001 under Section 13 of the Hindu Marriage Act for dissolution of his marriage with the opposite party, Reeta Kumari, by a decree of divorce. Opposite party appeared, but she did not contest the case by filing written statement and ex parte judgment and decree was passed whereby the marriage in between Anish Ranjan (petitioner) and Reeta Kumari (opposite party) was dissolved by a decree of divorce. Opposite party filed Misc. Case No.2 of 2003. under Order 9 Rule XIII of the Civil Procedure Code for setting aside ex parte divorce, judgment and decree. In this Miscellaneous case, opposite party filed an application under Section 24 of the Hindu Marriage Act for grant of ad interim maintenance and litigation cost. This application was contested by the petitioner stating that after passing of the divorce decree, unless appeal or miscellaneous case is allowed and ex parte decree is set aside, there is no relationship of husband and wife between the parties. The opposite party can not claim any maintenance under Section 24 of the Hindu Marriage Act, 1955, only husband or wife can claim for maintenance pendente lite under Section 24 of the Hindu Marriage Act since, proceeding under Hindu Marriage Act has already reached its finality and proceeding under Order 9 Rule 13 of CPC is not continuation or earlier suit no order under Section 24 of the Hindu Marriage Act can be passed. Proceeding under Order 9 Rule 13 is an independent proceeding the petitioner can not be directed to make payment of ad interim maintenance amount and the litigation cost.

(3.) REJOINDER to interlocutory application has been filed by the petitioner.