MISRA, J. - (1.) THIS writ petition has been filed by the petitioner-wife Smt. Anita Jain challenging the order of the Family Court by which the application filed by the respondent- husband Shri Rajendra Kumar Jain for stopping the payment of maintenance to the appellant-wife has been allowed. THIS application had been filed as liberty had been left to the respondent-husband vide order dated 12. 1. 2001 to move the Family Court under Section 25 of the Hindu Marriage Act or any other enabling provisions to scale down or stop the payment of maintenance, if the respondent-husband could prove change in the circumstances.
(2.) TO clarify the aforesaid position, it may be stated that the respondent husband had initially filed an application before the Family Court for grant of a decree of divorce on the ground of cruelty and the Family Court, after contest, passed a decree in favour of the respondent-husband annulling the marriage after recording a finding that the appellant-wife Smt. Anita Jain was guilty of indulging in cruelty to the husband by refusing to discharge her matrimonial obligations. Consequently, a decree of divorce was granted in favour of the respondent-husband. The appellant-wife Smt. Anita Jain thereafter preferred a Civil Misc. Appeal No. 45/2000 before the Division Bench of this High Court and while admitting the appeal, an order of stay was passed against the decree of divorce. In view of this, an order was also passed on 12. 1. 2001 directing the respondent-husband to pay maintenance @ Rs. 1,500/- per month payable from 1. 2. 2001 as also the arrears of the decretal amount before 1. 3. 2001 as directed by the Family Court in the decree. The respondent-husband was also directed to pay Rs. 1,000/- towards litigation expenses. At this stage, it was contended on behalf of the respondent- husband that the order for grant of maintenance is unjustified as the wife is in a steady job having regular income and the two children born out of their wedlock also are living with the father and, therefore, the order for grant of maintenance should not have been passed. The learned Judges, on the said date, i. e. 12. 1. 2001, left the liberty to the respondent-husband to move the Family Court under Section 25 of the Hindu Marriage Act to prove whether the appellant-wife was having any income or not so as to assail the order of grant of maintenance or for withdrawing the order of maintenance granted by the High Court in the wake of the fact that the decree of divorce was already granted in favour of the respondent-husband. The Family Court, therefore, after appreciation of evidence, was pleased to pass an order on 22. 9. 2006 recording therein that the petitioner-wife is working as a Librarian and is drawing salary of Rs. 4,653/- per month and, therefore, it was ordered that she is not entitled to any maintenance from the respondent- husband as the decree of divorce had already been passed in favour of the respondent-husband. The wife, therefore, has filed this writ petition challenging the order of the Family Court on the ground that the Family Court was not justified in withdrawing the order of maintenance granted in her favour as according to her counsel Mr. S. P. Sharma, the wife is entitled to grant of maintenance during pendency of matrimonial proceedings. We, however, find no substance in this plea as the order of maintenance although was granted in favour of the wife, subsequently a contested decree of divorce has already been passed in favour of the respondent-husband recording a finding that the wife is guilty of cruelty and desertion. It is no doubt true that the wife is entitled to alimony or maintenance while a decree of divorce is passed if it is proved that the respondent- husband indulges in neglecting his wife in any manner. But, once the matter has been contested between the couple and a decree of divorce is passed after appreciation of evidence and a finding is recorded that the wife has indulged in cruelty and desertion, the claim of maintenance at her instance perhaps could have been granted during pendency of the appeal provided she had no source of income at all. But when the Family Court has already recorded a finding that she is having an independent source of income and the two children, i. e. the sons are also living with their father and a decree of divorce has already been granted in favour of the respondent-husband recording a finding that the wife is guilty of cruelty and desertion, we see no jurisdiction why the order for grant of maintenance, which was passed earlier during pendency of the proceedings, should be allowed to remain on record. The provision under the Hindu Marriage Act clearly stipulates that the conduct of the parties is one of the relevant consideration for granting maintenance and we find substance in the submission of the counsel for the petitioner that the conduct of the parties while deciding the question for awarding maintenance should also be considered and if the circumstance like adultery and desertion is proved, denial of grant of maintenance would be justified. This, in our view, is the correct legal position in this regard. In so far as the case at hand is concerned, when the order of maintenance was granted in favour of the wife, the question regarding cruelty and desertion committed by her against the husband was subjudice hence the grant of maintenance was justified but after its adjudication and a final decree having been passed annulling the marriage between the parties and thereafter also recording a finding that she has an independent source of income, we see no justification for the petitioner-wife to assail the order of the Family Court claiming maintenance when the two children also are living with their father.
(3.) WE thus, find no substance in this writ petition and hence it stands dismissed. .;