SURENDRA KUMAR BHANASALI Vs. JUDGE FAMILY COURT

JUDGEMENT

(1.) This writ petition under Arts. 226 and 227 of the Constitution of India has been filed by the petitioner husband against the respondents on 23-1-2004 with the prayer that by appropriate writ, order of direction, order dated 20-11-2003 (Annexure 2) passed by the respondent No. 1 Family Court, Udaipur by which the application filed by the respondent No. 2 Smt. Kailash wife in the proceedings under Section 25 of the Hindu Marriage Act, 1955 (hereinafter referred to as "the Act of 1955") was allowed in the manner that the petitioner husband would pay Rs. 5000/- to the respondent No. 2 Smt. Kailash wife as counsel fee and litigation expenses, be quashed and set aside.

(2.) The case of the petitioner-husband as put forward by him in this writ petition is as follows : The petitioner husband filed a divorce petition in the year 1998 before the respondent No. 1 Family Court, Udaipur seeking divorce against the respondent No. 2 Smt. Kailash (wife) and that divorce petition was registered as case No, 183/1998 and the respondent No. 1 Family Court through judgment and decree dated 13-7-2001 decreed the divorce petition of the petitioner husband and passed a decree of divorce against the respondent No. 2 Smt. Kailash (wife). The further case of the petitioner is that the respondent No. 2 Smt. Kailash (wife) preferred an appeal against the judgment and decree dated 13-7-2001 passed by the respondent No. 1 Family Court before this Court and the same is pending before the Division Bench of this Court. The further case of the petitioner is that after the decree of divorce dated 13-7-2001 was passed by the respondent No. 1 Family Court in favour of the petitioner husband, the respondent No. 2 wife filed an application (Annexure 3) on 4-9-2001 under Section 25 of the Act of 1955 for granting permanent alimony and maintenance and that application was registered as case No. 241/2001 and the same is pending before the respondent No. 1 Family Court. The further case of the petitioner husband is that during the pendency of the said application Annexure 3, both the parties were granted permission to prosecute their cases through their respective advocate and therefore, the respondent No. 2 wife moved an application (Annexure 1) on 7th August, 2003 claiming advocate's fee and litigation expenses and that application Annexure 1 was allowed by the respondent No. 1 Family Court through impugned order Annexure 2 dated 20-11-2003 and the petitioner was directed to pay Rs. 5000/- to the respondent No. 2 Smt. Kailash (wife) as advocate fee and litigation expenses. This order Annex. 2 has been challenged by the petitioner in this writ petition on various grounds. The main contention of the petitioner husband is that even the main application Annexure 3 under Section 25 of the Act of 1955 was itself not maintainable as the appeal of the respondent No. 2 wife against the decree of divorce granted by the respondent No. 1 Family Court in favour of the petitioner husband through Judgment and decree dated 13-7-2001 is pending before the Division Bench of this Court and since the main application Annexure 3 was not maintainable, therefore, the application Annexure 1 filed during the pendency of main application Annexure 3 is also not maintainable and thus, the impugned order Annexure 2 dated 20-11-2003 cannot be sustained and is liable to be quashed and set aside. A reply to the writ petition was filed by the respondent No. 2 wife and it was submitted that the application Annexure 1 was rightly decided by the respondent No. 1 Family Court through impugned order Annexure 2 dated 20-11-2003 and therefore, no interference is called for with the same and this writ petition deserves to be dismissed.

(3.) I have heard the learned counsel for the petitioner and the learned counsel for the respondent No. 2 and gone through the materials available on record.