- (1.) R. P. Yadav, J. Heard Shri S. C. Dhasmana, the learned Counsel for the appellant and Shri R. C. Singh, the learned Counsel appearing for the respondent No. 2.
(2.) THIS appeal is by the wife under Section 19 of the Family Courts Act, 1984. She is aggrieved by an order dated 24-1-2005 passed in Misc. Proceedings under Order 9, Rule 13 of the Code of Civil Procedure (hereinafter referred to as the "code") by the Additional Principal Judge, Family Court, Lucknow awarding Rs. 5,000/- per month as interim maintenance under Section 24 of the Hindu Marriage Act, 1955. The ex parte decree of divorce, the cancellation of which has been sought is said to have been obtained fraudulently. The amount of interim maintenance is alleged to be grossly inadequate determined arbitrarily and illegally on a misreading of material evidence regarding income of the husband respondent No. 2. Admittedly the respondent No. 2 is a Medical Officer in the Central Government, Health Scheme and is presently drawing monthly salary of Rs. 45,246/- and after deducting Rs. 17,970/- on various counts, his take home salary is Rs. 27,276/ -. The appellant was married on 22-5-1986 to respondent No. 2. They lived together for some time and two daughters were born to them out of this wedlock. The respondent No. 2 obtained an ex-parte decree of divorce on 27-8-2001 by filing a Regular Petition No. 326 of 2000 under Section 13 of the Hindu Marriage Act, 1955 in the Court of Principal Judge, Family Court, Lucknow. The appellant on coming to know about the ex parte decree of divorce, applied for cancellation thereof under the provisions of Order IX, Rule 13 read with Section 151 of the Code. The said application is pending. During the pendency of the said application, the appellant moved an application under Section 24 of the Hindu Marriage Act for interim maintenance, litigation expenses, travelling and other expenses as she has to come to Lucknow for attending the Court from her parents' house in District Muzaffarnagar, a place more than 500 Kms. away from Lucknow. An objection was raised before the learned Additional Principal Judge, Family Court, Lucknow that interim maintenance cannot be awarded during the pendency of the proceedings under Order IX, Rule 13 of the Code as the same is not a proceeding under the Hindu Marriage Act. Relying on the case of Rishi Deo Anand v. Smt. Devinder Kaur, AIR 1985 page 40; Smt. Nadipti Ghosh v. Swapn Kumar Ghosh, AIR 1991 page 414 and Vinod Kumar v. Usha Vinod, AIR 1993 page 160, the learned Additional Principal Judge, Family Court held that the application under Section 24 of the Hindu Marriage Act is maintainable even during the pendency of proceedings for setting aside the decree of divorce under Order 9, Rule 13 of the Code.
(3.) THE other contention raised by the husband that the appellant owns a flat in Ghaziabad and also agricultural property and has sufficient means to maintain her, has also not been accepted by the Family Court. However, on the basis of a certificate of income of husband, a sum of Rs. 25,00/- has been allowed as interim maintenance, without specifying the date from which it was payable. The grievance of the appellant is that the amount is so inadequate that it is impossible for her to maintain her body and soul together from this niggardly and meagre amount. She also complains that the date, from which the interim maintenance has been awarded has not been specified; whereas it should be with effect from the date of application.;