The Nagpur Bench of Bombay High Court remanded a divorce case back to the family court after the family court granted divorce without deciding interim application for maintenance pendente lite filed by the wife under the learned bench of Justice Urmila Joshi Phalke in the case of Chanda v. Prakashsingh Rathod (Family Court Appeal No. 04 of 2022)
FACTS OF THE CASE:
The respondent and appellant are a married couple with two kids. The appellant moved in with her mother in Nanded as a result of a marriage conflict. The husband claimed that his wife had been cruel to him and his family in his divorce petition to the Family Court in Akola. In accordance with section 24 of the HMA, the wife requested maintenance pendente lite while contesting the accusations.
Three of the hearings were without the appellant. The family court awarded the divorce decision without the husband being subjected to cross-examination. The wife appealed to the High Court on the grounds that the divorce petition’s trial code decision was made without taking into account her request for support.
The appellant’s attorney, Shilpa Tapadiya, argued that the trial court should have taken into account the fact that the appellant is a resident of Nanded and was compelled to appear in the case in Akola. Her claim for maintenance pendente lite should have been approved because she must support two children. She was not given a fair chance to present her position during the divorce proceeding.
According to the husband’s attorney, Ravikumar Tiwari, the wife had ample opportunity to present and cross-examine the respondent but chose not to do so. The family court therefore continued with the case.
OBSERVATION OF THE COURT:
The court said that section 24 of the Hindu Marriage Act, 1955 (HMA) is a benevolent and gender-neutral provision to provide maintenance and litigation expenses to a spouse who doesn’t have independent income to maintain themselves during the pendency of the case.
The family court’s presiding officer decided the divorce petition without ruling on the interim maintenance application because the appellant was absent despite having ample chance to present in court, the court ruled after reviewing the facts in the record.
The court noted that both the appellant and his wife were missing on multiple occasions, in addition to the appellant being absent during the proceedings. The interim maintenance pendente lite application was not decided along with the divorce petition (which otherwise has to be decided within 60 days as per section 24). No opportunity of defending herself was given to the wife. Section 24 being the benevolent provision, the application for maintenance pendente lite should have been decided, it held.
The court held that it is necessary to give proper opportunity to the appellant to defend the grounds of divorce by presenting evidence. The court remanded the matter back to the family court for fresh consideration. The court also directed the family court to decide the interim application for the maintenance pendente lite.
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Judgement reviewed by – Sudarshana Jha
