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IN THE HIGH COURT OF DELHI
Mat. App. (F.C.) 53/2014 and CM No. 7929 of 2014
Decided On: 15.10.2014
Appellants: Nidhi Banga
Vs.
Respondent: Mohinder Bir Singh
Hon'ble Judges/Coram:Gita Mittal and J.R. Midha, JJ.
1. None appears for the respondent. We have heard learned Counsel for the appellant and perused the record. By way of the present appeal the appellant laid a challenge to the order dated 22nd March, 2013 whereby the Family Court directed the appellant to file her written statement without adjudication of her application for grant of maintenance and litigation expenses under Section 24 of the
Hindu Marriage Act, 1956.
2. The appellant has contended that the same is contrary to the settled principles of law and has placed reliance on the pronouncement of this Court reported at MANU/DE/3644/2013 : 204 (2013) DLT 454, Pramod Saigal v. Amrita Singh; MANU/DE/0666/2005 : 120 (2005) DLT 426, Gaurav Sondhi v. Diya Sondhi; MANU/DE/1238/2009 : II (2009) DMC 26, Rajeev Preenja v. Sarika and Ors. as well as Bombay High Court reported at MANU/MH/1642/2009 : AIR 2010 Bombay 62, Sau. Vanita Pravin Gaikwad v. Shri Pravin Pundlik Gaikwad in support of his submission. It has been held in these judicial precedents that wife cannot be compelled to file written statement unless the order passed on an application seeking grant of litigation expenses.
3. In this regard we may usefully extract para 10 of Sau. Vanita Pravin Gaikwad v. Shri Pravin Pundlik Gaikwad (supra) which reads thus:
"10. The said section confers a power on the Court in a given case to direct the Petitioner to pay necessary expenses of the proceedings to the respondent on an application being made by the respondent. Such an order can be passed when the Court is satisfied that the respondent does not have independent income. Proviso lays down that if an application for payment of expenses of the proceedings is made, normally the same shall be disposed of within 60 days from the date of service of notice on the wife or the husband, as the case may be. Thus, in a given case where a Petition is filed for divorce or other relief by the husband, if wife does not have income to bear the expenses of the proceedings, she can apply to the trial Court for grant of a reasonable amount for meeting the expenses of the proceedings initiated by the husband. The law mandates that such application shall be decided within a period of 60 days. What follows is that till such application is not decided and till the amount ordered to be paid to the respondent-wife not paid, she is not expected to file written statement. At this juncture, it will be necessary to consider a decision of this in the case of Meena alias Pratibha Deshpande v. Prakash Shriniwas Deshpande, (MANU/MH/0219/1983 : 1983 Mah LJ 821). It will be necessary to refer to what is held by this Court in paragraph 2 of the said decision--
"2. In the entire proceedings excepting para 5 of the trial Court's judgment, it does not appear that there was any consideration bestowed upon the entitlement of such wife to seek maintenance pendente lite and the expenses of the proceedings for which proper application was filed supported by the affidavit as available at Exs. 11 and 12. Without deciding such an application, it is indeed difficult to permit the passing of such ex parte judgment only because the written statement is not filed, particularly when the allegations on the basis of which relief of nullity and divorce are sought are serious enough and, before they are accepted, required sufficient and adequate proof. In such matters, looking to the policy of law it must be observed that the proceedings under Section 24 of the Act have an important bearing with regard to the rights of the defending spouse. Not only the provisions of Section 24 of the Act permit grant of maintenance pendente lite, but also it permits the Court to make an order with regard to necessary expenses of the proceedings. In a given case without provision for the necessary expenses of the proceedings, it would be impracticable to insist upon the defending spouse even to file a written statement. The trial Court, which was moved by filing the application, was bound to decide the application with regard to the maintenance and the expenses. There is thus, obvious failure to follow the provisions of Section 24 of the Act and that should be enough to set aside the judgment under appeal and remit the matter back to the trial Court directing it to consider the application filed at Ex. 11 supported by Ex. 12 and then to proceed with the inquiry in the petition according to law."
4. In view thereof, the order dated 22nd March, 2013 is clearly in the teeth of well settled legal principles. The appellant had sought review of the order dated 22nd March, 2013 which review petition came to be rejected by an order dated 8th of January, 2014. Learned Counsel for the appellant submits that in addition to the dismissal of the review petition the Court has imposed costs of Rs. 5,000/-.
5. The order dated 22nd March, 2013 was clearly contrary to law which was a reason sufficient meriting review thereof. The finding of the learned Family Judge to the effect that there was no mistake or error on the face of the record as well as that there is no sufficient reason for review is, therefore, wholly erroneous. In view of the above, the order dated 22nd March, 2013 as well as the order dated 8th January, 2014 are hereby set aside and quashed.
The appeal is allowed in the above terms.
