J&K High Court | Maintenance will be awarded from the date of filing the application for maintenance.

Joint complaint
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  • Post published:February 26, 2021
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Shevata Choudhary vs Neeraj Choudhary

The Hon’ble High Court on February 25, 2021, set aside the impugned order passed by the learned Additional District Judge (Matrimonial Cases), Udhampur whereby the maintenance was awarded from the date of order and not from the date of filing the application and further directed the respondent to pay arrears of maintenance to the petitioner from the date of filing of the application.

The petition was filed mainly on the ground that the learned trial court has wrongly awarded the maintenance from the date of the decision.

Arguments on behalf of the petitioner:

Mr. Anil Sethi, Counsel for the petitioner argued that the petitioner be awarded the maintenance from the date of filing of the application and has placed reliance on the judgment of the Apex Court in case, titled, Rajnesh v Neha and others,

Arguments on behalf of the Respondent:

Ms. Monika Kohli, Counsel for the respondent has vehemently argued that the present petition under Article 227 of the Constitution of India, is not maintainable when the dispute is between the private parties and she has also laid much stress that the petitioner was responsible for the delay.

Observations of the Court:

1. Petition under Article 227 of the Constitution of India is not maintainable between the private parties.

While answering the first contention of the respondent, the Hon’ble Court observed that the contention is misconceived as the law is well settled in Radhey Shyam and another vs Chabbhi Nath and others (2015) 2 SCC 423

Relevant paragraphs Nos. 26 and 27 reads as under:

“26. The Bench in Surya Dev Rai also observed in para 25 of its judgment that the distinction between Articles 226 and 227 stood almost obliterated. In para 24 of the said judgment distinction in the two articles has been noted. In view thereof, observation that the scope of Article 226 and 227 was obliterated was not correct as rightly observed by the referring Bench in Para 32 quoted above. We make it clear that though despite the curtailment of revisional jurisdiction under Section 115 CPC by Act 46 of 1999, the jurisdiction of the High Court under Article 227 remains unaffected, it has been wrongly assumed in certain quarters that the said jurisdiction has been expanded. Scope of Article 227 has been explained in several decisions including Waryam Singh and another vs. Amarnath and anothers, Ouseph Mathai vs. M. Abdul KhadirShalini Shyam Shetty vs. Rajendra Shankar Patil and Sameer Suresh Gupta vs. Rahul Kumar Agarwal. In Shalini Shyam Shetty, this Court observed :

“64. However, this Court unfortunately discerns that of late there is a growing trend amongst several High Courts to entertain writ petition in cases of pure property disputes. Disputes relating to partition suits, matters relating to execution of a decree, in cases of dispute between landlord and tenant and also in a case of money decree and in various other cases where disputed questions of property are involved, writ courts are entertaining such disputes. In some cases the High Courts, in a routine manner, entertain petitions under Article 227 over such disputes and such petitions are treated as writ petitions.

65. We would like to make it clear that in view of the law referred to above in cases of property rights and in disputes between private individuals writ court should not interfere unless there is any infraction of statute or it can be shown that a private individual is acting in collusion with a statutory authority.

66. We may also observe that in some High Courts there is a tendency of entertaining petitions under Article 227 of the Constitution by terming them as writ petitions. This is sought to be justified on an erroneous appreciation of the ratio in Surya Dev and in view of the recent amendment to Section 115 of the Civil Procedure Code by the Civil Procedure Code (Amendment) Act, 1999. It is urged that as a result of the amendment, scope of Section 115 CPC has been curtailed. In our view, even if the scope of Section 115 CPC is curtailed that has not resulted in expanding the High Court’s power of superintendence. It is too well known to be reiterated that in exercising its jurisdiction, High Court must follow the regime of law.

67. As a result of frequent interference by the Hon’ble High Court either under Article 226 or 227 of the Constitution with pending civil and at times criminal cases, the disposal of cases by the civil and criminal courts gets further impeded and thus causing serious problems in the administration of justice. This Court hopes and trusts that in exercising its power either under Article 226 or 227, the Hon’ble High Court will follow the time honoured principles discussed above. Those principles have been formulated by this Court for ends of justice and the High Courts as the highest courts of justice within their jurisdiction will adhere to them strictly.”

(emphasis added)

27. Thus, we are of the view that judicial orders of civil courts are not amenable to a writ of certiorari under Article 226. We are also in agreement with the view of the referring Bench that a writ of mandamus does not lie against a private person not discharging any public duty. Scope of Article 227 is different from Article 226.”

9. Thus, the contention that the petition under Article 227 of the Constitution of India is not maintainable qua the dispute between the private parties is misconceived and the same is rejected, particularly in view of the settled position of law that the judicial orders of the civil courts are not amenable to a writ of certiorari under Article 226 of the Constitution of India.

So far as the Article 227 of the Constitution of India is concerned, it stands on different footing.

2. The next contention raised by the respondent is that the petitioner is not entitled to the maintenance from the date of petition as it is the petitioner, who had delayed the disposal of the petition under section 30 of the Jammu and Kashmir Hindu Marriage Act.

The Court observed that the duration for the payment of maintenance under section 30 of the Jammu and Kashmir Hindu Marriage Act is coterminous with the pendency of the main petition, either for grant of divorce or for restitution of the conjugal rights. It is not the case of the respondent that because of the proceedings under section 30 of the Jammu and Kashmir Hindu Marriage Act, the proceedings of the divorce petition were stayed by the trial court, rather the proceedings in the main divorce petition as well as the proceedings under section 30 of the Jammu and Kashmir Hindu Marriage Act were being conducted simultaneously so the mere fact that there was delay on the part of the petitioner for conclusion of the proceedings under section 30 of the Jammu and Kashmir Hindu Marriage Act is of no consequence as the proceedings in the main petition were being continued by the learned trial court regularly and were not stalled.

The Court also relied upon the directions passed by the Apex Court in case titled Rajnesh vs Neha. Paragraph No. 93 has held as under:

“93. It has therefore become necessary to issue directions to bring about uniformity and consistency in the Orders passed by all Courts, by directing that maintenance be awarded from the date on which the application was made before the concerned Court. The right to claim maintenance must date back to the date of filing the application, since the period during which the maintenance proceedings remained pending is not within the control of the applicant.”

The Court also observed that this Court deems it proper to exercise its power under section 227 of the Constitution of India to modify the order impugned and by exercising this power, this Court is not correcting either any error of law or fact but has merely corrected the jurisdictional error committed by the trial court as it had failed to exercise its power to grant maintenance to the petitioner pendente lite from the date of filing of the petition.

Bench: Hon’ble Mr. Justice Rajnesh Oswal, Judge

The Bench while disposing of the petition held that the impugned order dated 20.04.2018 is modified to the extent that the petitioner shall be entitled to the maintenance of Rs. 5,000/- per month from the date of filing of application. The respondent shall be at liberty to liquidate the arrears within a period of eighteen months from today.

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