# Dr. Shailesh Kumari v. Dr. Amod Kumar Sachan

- **Citation:** (2016) 5 ILRA 1128
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2016-05-23
- **Bench:** Satyendra Singh Chauhan, Dr. Vijay Laxmi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/dr-shailesh-kumari-v-dr-amod-kumar-sachan-43739
- **Pages:** 6

## Headnote

Pushpila Bisht, Dr. L.P.Misra
5 All. Dr. Shailesh Kumari Vs Dr. Amod Kumar Sachan

1129
Maintenance pendente lite - Release of deposited amount - Effect of disposal of appeal -
Functus officio.

Where pendente lite maintenance awarded by the High Court had been affirmed by the Hon'ble Supreme
Court, the Court does not become functus officio merely because the first appeal has been decided. In
matrimonial matters, the Court retains jurisdiction to release the amount deposited pursuant to such order,
particularly when the right to maintenance has attained finality. (Paras 6, 9, 10 & 11)

Hindu Marriage Act, 1955 - S. 24 - Object of provision - Continuance of right after termination
of proceedings.

The purpose of Section 24 is to ensure that an indigent spouse is not deprived of the means to prosecute or
defend matrimonial litigation. Termination of proceedings does not extinguish the right to receive
maintenance pendente lite which had accrued during pendency of the litigation but remained unrealised due
to procedural circumstances. (Paras 7 & 8)

 Matrimonial dispute - Financial hardship of wife - High income of husband - Entitlement to
maintenance.
Considering prolonged litigation, pendency of proceedings before the Hon'ble Supreme Court, and the
comparative financial position of the parties, refusal to release pendente lite maintenance would defeat the
statutory object. Once the award has attained finality, the wife is entitled to withdrawal of the amount lying
deposited in Court. (Paras 4, 10, 11 & 12)

In result : Appellant will be entitled for pendente lite maintenance during pendency of the proceedings.

Appeal Allowed.

List of Cases cited:

Pratima Yadav v. Vinod Kumar Yadav, 2013 (5) ALJ 48
Vinod Kumar Kejriwal v. Usha Vinod Kejriwal, AIR 1993 Bom 160
Chitra Sengupta v. Dhruba Jyoti Sengupta, AIR 1988 Cal 98
Sohan Lal v. Smt. Kamlesh, AIR 1984 P&H 332
Amrik Singh v. Smt. Narinder Kaur, AIR 1979 P&H 211
N. Subramanyam v. Mrs. M.G. Saraswathi, AIR 1964 Mys 38
Dwaraka Das v. State of M.P. and another, (1999) 3 SCC 500
State of Rajasthan v. Teja Ram and others, (1999) 3 SCC 507
Jayalakshmi Coelho v. Oswald Joseph Coelho, (2001) 4 SCC 181
State of Punjab v. Darshan Singh, (2004) 1 SCC 328
Dy. Director, Land Acquisition v. Malla Atchinaidu and others, (2006) 12 SCC 87
State Bank of India and others v. S.N. Goyal, (2008) 8 SCC 92

## Text

1128 INDIAN LAW REPORTS ALLAHABAD SERIES
34. Testimony of all the prosecution witnesses is innocuous, clinching and inspiring
confidence and nothing adverse comes out of their cross examination. It is a special circumstance
that no one knew anything about death of deceased till recovery of her dead body and conduction
of post mortem examination; but the appellant came out with specific case of sexual assault by antisocial elements on the deceased. In such a scenario, it was open to the appellant to have come out
with some cogent evidence or circumstance which could have supported such claim or hypothesis.

35. The learned trial court has rightly taken into account testimony of the prosecution
witnesses on record and appreciated circumstances of the case and has recorded just finding of
conviction while imposing sentence on the appellant according to law.

36. In the result, the impugned judgment and order of conviction dated 31.07.2012 passed
by the Additional Sessions Judge, Court No. 3, Lakhimpur Kheri in Sessions Trial No.1081 of
2009 arising out of Case Crime No.497 of 2007, under Sections 498-A, 304-B IPC and 4 Dowry
Prohibition Act, Police Station Singahi, District Kheri, is upheld in appeal.

37. Consequently, the instant appeal being devoid of merit is dismissed.

38. In this case, appellant Heeralal is in jail. He shall serve out the remaining part of his
sentence imposed upon him in the aforesaid sessions trial.

39. Let a copy of this judgment be certified to trial court for intimation and necessary
follow up action.
---------
APPELLATE JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 23.05.2016

BEFORE

 THE HON'BLE SATYENDRA SINGH CHAUHAN, J.
THE HON'BLE DR. VIJAY LAXMI, J.

First Appeal No.- 91 Of 2006

Dr. Shailesh Kumari ...Appellant
Versus
Dr. Amod Kumar Sachan ...Respondent

Counsel for the Appellant:
I.B. Singh, Ashok Sinha, Saket Misra

Counsel for the Respondent:
Pushpila Bisht, Dr. L.P.Misra
5 All. Dr. Shailesh Kumari Vs Dr. Amod Kumar Sachan

1129
Maintenance pendente lite - Release of deposited amount - Effect of disposal of appeal -
Functus officio.

Where pendente lite maintenance awarded by the High Court had been affirmed by the Hon'ble Supreme
Court, the Court does not become functus officio merely because the first appeal has been decided. In
matrimonial matters, the Court retains jurisdiction to release the amount deposited pursuant to such order,
particularly when the right to maintenance has attained finality. (Paras 6, 9, 10 & 11)

Hindu Marriage Act, 1955 - S. 24 - Object of provision - Continuance of right after termination
of proceedings.

The purpose of Section 24 is to ensure that an indigent spouse is not deprived of the means to prosecute or
defend matrimonial litigation. Termination of proceedings does not extinguish the right to receive
maintenance pendente lite which had accrued during pendency of the litigation but remained unrealised due
to procedural circumstances. (Paras 7 & 8)

 Matrimonial dispute - Financial hardship of wife - High income of husband - Entitlement to
maintenance.
Considering prolonged litigation, pendency of proceedings before the Hon'ble Supreme Court, and the
comparative financial position of the parties, refusal to release pendente lite maintenance would defeat the
statutory object. Once the award has attained finality, the wife is entitled to withdrawal of the amount lying
deposited in Court. (Paras 4, 10, 11 & 12)

In result : Appellant will be entitled for pendente lite maintenance during pendency of the proceedings.

Appeal Allowed.

List of Cases cited:

Pratima Yadav v. Vinod Kumar Yadav, 2013 (5) ALJ 48
Vinod Kumar Kejriwal v. Usha Vinod Kejriwal, AIR 1993 Bom 160
Chitra Sengupta v. Dhruba Jyoti Sengupta, AIR 1988 Cal 98
Sohan Lal v. Smt. Kamlesh, AIR 1984 P&H 332
Amrik Singh v. Smt. Narinder Kaur, AIR 1979 P&H 211
N. Subramanyam v. Mrs. M.G. Saraswathi, AIR 1964 Mys 38
Dwaraka Das v. State of M.P. and another, (1999) 3 SCC 500
State of Rajasthan v. Teja Ram and others, (1999) 3 SCC 507
Jayalakshmi Coelho v. Oswald Joseph Coelho, (2001) 4 SCC 181
State of Punjab v. Darshan Singh, (2004) 1 SCC 328
Dy. Director, Land Acquisition v. Malla Atchinaidu and others, (2006) 12 SCC 87
State Bank of India and others v. S.N. Goyal, (2008) 8 SCC 92

 (Delivered by Hon'ble Satyendra Singh Chauhan, J.)

1. This is an application for release of amount of pendente lite maintenance.

2. This application has been moved with the prayer that the entire amount of pendente lite
maintenance of the applicant-appellant may be released in pursuance to the order dated 4.12.2012
1130 INDIAN LAW REPORTS ALLAHABAD SERIES
passed by this Court and confirmed vide order dated 15.4.2014 passed by the Hon'ble Supreme
Court.

3. The applicant-appellant filed First Appeal No.91 of 2006 and the said appeal came to be
decided in her favour vide order dated 6.11.2015 and it is stated that when the appeal was decided,
the pendente lite amount which was directed to be deposited by this Court could not be released in
favour of the applicant-appellant due to the fact that the matter went up to the Hon'ble Supreme
Court against the order passed by this Court wherein the applicant-appellant pressed for release of
the amount, which was refused by this Court and later on, the Hon'ble Supreme Court affirmed that
order. During the course of hearing of the appeal, again an application was moved for release of the
amount, which was rejected by this Court vide order dated 13.8.2015. Thereafter, the appeal was
heard and allowed. While allowing the appeal, this Court could not take into consideration the
request of the applicant-appellant for releasing the pendente lite maintenance deposited before this
Court.

4. It has been submitted by the learned counsel for the applicant appellant that the
applicant-appellant is facing long drawn litigation and she has to engage various lawyers before
this Court as well as before the Hon'ble Supreme Court where the SLP is now pending and the
judgment of this Court has been stayed. Learned counsel submits that for engaging the Advocate in
the Hon'ble Supreme Court and also for pursuing the appeal in the Hon'ble Supreme Court, she is in
the need of amount and she cannot face the litigation from her salary, which is being paid to her, in
this scenario of inflation. It is submitted that the husband of the applicant appellant is a Doctor and
running a hospital and is having a huge income as compared to the income of the applicantappellant. The applicant-appellant is facing financial hardship in this long drawn litigation and
hence, she is entitled for release of the pendente lite maintenance, which has been deposited in this
Court. He has relied upon the judgment rendered in the case of Pratima Yadav v. Vinod Kumar
Yadav, 2013 (5) ALJ 48 and the cases relied upon in the said judgement i.e. Vinod Kumar
Kejriwal v. Usha Vinod Kejriwal, AIR 1993 Bombay 160, Chitra Sengupta v. Dhruba Jyoti
Sengupta, AIR 1988 Calcutta 98, Sohan Lal v. Smt. Kamlesh, AIR 1984 Punjab and Haryana
332, Amrik Singh v. Smt. Narinder Kaur, AIR 1979 Punj & Hary 211 and N. Subramanyam v.
Mrs. M. G. Saraswathi, AIR 1964 Mys 38.

5. Learned counsel for the respondent has filed an objection and refuted the argument of
the learned counsel for the applicant-appellant and has submitted that once the Court has decided
the appeal, it has become functus officio and cannot pass any order. If the amount has been
deposited, then the same cannot be released by this Court after the final judgment is passed. He has
relied upon the judgments rendered in the case of Dwaraka Das v. State of M.P. and another,
(1999) 3 SCC 500, State of Rajasthan v. Teja Ram and others, (1999) 3 SCC 507, Jayalakshmi
Coelho v. Oswald Joseph Coelho, (2001) 4 SCC 181, State of Punjab v. Darshan Singh, (2004)
1 SCC 328, Dy. Director, Land Acquisition v. Malla Atchinaidu and others, (2006) 12 SCC 87
and State Bank of India and others v. S.N. Goyal, (2008) 8 SCC 92.
5 All. Dr. Shailesh Kumari Vs Dr. Amod Kumar Sachan

1131
6. The question before this Court is as to whether the Court has become functus officio
after decision of the appeal or still has right to release pendente lite maintenance, which still lies
with the Court without any order. What should be the provisions in matrimonial matters?

7. In matrimonial matters, this Court has already taken a view in the case of Pratima
Yadav (supra) wherein it was held that if the suit for divorce is dismissed as withdrawn,
termination of proceedings cannot be treated as bar for providing interim maintenance and the trial
court failed to implement the order of the revisional court granting ad interim maintenance at the
time of withdrawing suit and this Court after relying upon various judgments of various High
Courts in paragraphs-7, 8, 9, 10 & 11 held as under:-

"7. A Division Bench of Punjab and Haryana High Court in the case of Sohan Lal
v. Smt. Kamlesh, AIR 1984 Punjab and Haryana 332, has held as under:

"From a reading of the section, it is evident that the Court, during the pendency of
the proceedings under the Act, viz., for restitution of conjugal rights, judicial separation, divorce or
nullity of marriage, can grant to a spouse having no sufficient income to maintain himself/herself
and to meet the necessary expenses of the proceeding, maintenance pendente lite and litigation
expenses. The object of enacting the section is that an indigent spouse should not suffer during the
pendency of the proceedings because of his/her poverty. It is the duty of the Court to decide such
an application expeditiously so that the indigent spouse is not handicapped because of want of
funds. However, if the application under S. 24 is not decided during the pendency of the main
petition on account of dilatory tactics of the other spouse or for some unforeseen circumstances, the
whole purpose of the section stands frustrated in case it is dismissed on the ground that after the
decision of main petition it does not survive. Therefore, we are of the view that even if the main
petition is decided finally, the application under Section 24 which is pending decision can continue.
Similarly, a revision petition filed against an order under Section 24 can continue in spite of
disposal of the main petition. In the above view, we are fortified by the following observations of
D. S. Tewatia, J. in Amrik Singh v. Smt. Narinder Kaur, AIR 1979 Punj & Hary 211:-

"If the view is that the provisions of Section 24 of the Act were intended by the
legislature to enable the indigent spouse to secure wherewithal to defend the proceedings against
oneself and to maintain oneself during the pendency of the proceedings, then it is incumbent upon
the Courts to take an immediate decision upon the petition under Section 24 of the Act, otherwise
the delay would defeat the very purpose. Otherwise in a case where the Court delays the decision
on the application till the fag-end of the trial of the main case, right to maintenance and litigation
expenses would be denied to the applicant on the specious argument that she had been able to
prosecute the litigation for all that long period and had survived and so she was not entitled to
favourable order on her application, for the litigation expenses and the interim maintenance under
Section 24 of the Act was intended merely to meet the contingency of an indigent spouse not being
able to prosecute the case and survive during the pendency of the proceedings which contingency
would no longer exist when the proceedings had reached the stage of conclusion though not finally
concluded."
1132 INDIAN LAW REPORTS ALLAHABAD SERIES
 8. It was further held:-

"Generally, the petitions under these sections are decided first and should as a
matter of fact be decided before conclusion of main petition. It is further observed that a reading of
Sections 24 and 26 does not show that if the main petition under Sections 9, 10, 12 or 13 is
disposed of, the jurisdiction of the Court to award maintenance pendente lite by an order to be
passed thereafter is taken away. This view was affirmed in Bhanwar Lal's case (AIR 1983 Raj 229)
(supra). The same view was taken by a Division Bench of Mysore High Court in N. Subramanyam
v. Mrs. M. G. Saraswathi, AIR 1964 Mys 38. It was held therein that it cannot be said that since the
proceedings had themselves terminated, there was no occasion to grant interim maintenance or
expense. The right to those items, if established, could not be defeated by allowing time to elapse
and the pendency of the proceedings to end. We are in respectful agreement with the observations
made in the aforesaid cases."

 9. It has been further observed:-

"The word "proceeding" in the section appears at three places and it connotes the
main proceedings, that is, proceedings other than proceedings under Section 24. The words
"monthly during the proceedings such sum" are very important. These words show the intention of
the legislature that it intended to give maintenance to the indigent spouse till disposal of the main
petition. If the application under Section 24 is taken to be included in the word "proceeding"',
anomalous results would follow. Therefore, we are of the opinion that if the application under
Section 24 continues after dismissal of the main petition, the applicant is entitled to the
maintenance till the date of the decision of the main petition."

10. Similar view has been taken by the Calcutta High Court in the case of Chitra
Sengupta v. Dhruba Jyoti Sengupta, AIR 1988 Calcutta 98, wherein it has been held that the wifeappellant, who appealed against a decree of divorce passed against him, filed an application for
maintenance pendente lite and cost of litigation under Section 24, it would be maintainable. In this
case it was also held that "we are, however, of opinion that if she is otherwise entitled to
maintenance under S.24, Hindu Marriage Act, the fact that she made no such application in the trial
Court would be of no consequence."

11. In Vinod Kumar Kejriwal v. Usha Vinod Kejriwal, AIR 1993 Bombay 160, the
Bombay High Court has also taken the same view as discussed above."

8. After relying upon the judgments of various High Courts, this Court held that even if the
suit has been dismissed as withdrawn and the trial court failed to release the maintenance amount,
the same ought to have been released. Termination of proceedings does not mean that the
maintenance amount cannot be released, which was otherwise due under law.
5 All. Smt. Shanti Alias Satiya Vs Smt. Phoolan Dullaiya & Ors.

1133
9. Learned counsel for the respondent has relied upon the decisions rendered in the case of
Dwaraka Das (supra), Teja Ram and others (supra), Jayalakshmi Coelho (supra), Darshan
Singh (supra), Malla Atchinaidu and others (supra) and S. N. Goyal (supra), wherein general
principle of law is involved, but the counsel for the respondent has not relied upon any case law
relating to matrimonial dispute. Where matrimonial disputes are involved and it is found that the
wife is entitled for maintenance which otherwise could not be released, then the amount is liable to
be released.

10. Power is still possessed by the Court to release the amount. The maintenance awarded
to the wife has already been approved by the Apex court. Grant of maintenance to the applicantappellant was challenged before the Apex Court and Apex Court has dismissed the SLP vide order
dated 15.4.2014 wherein orders passed by this Court dated 4.12.2012, 26.11.2013 and 3.3.2014
were put to challenge.

11. Once the maintenance has attained finality, then validity of the award of pendente lite
maintenance cannot be looked into by this Court and SLP having been dismissed, the amount fixed
by this Court has attained finality. The applicant-appellant is, therefore, entitled for withdrawal of
the amount and for receiving the pendente lite maintenance during the course of litigation. Apart
from it, looking to the long drawn litigation between the parties and also looking to the fact that
income of the husband of the applicant-appellant is very high as he is running hospital and earning
money from it coupled with the fact that the applicant-appellant has to pursue proceedings in the
Hon'ble Supreme Court by engaging Advocate, we find that the applicant-appellant is entitled for
pendente lite maintenance.

12. We accordingly allow this application and direct the Registry of this Court to release
the amount deposited in this Court within a period of one week and we further provide that the
applicant-appellant will be entitled for pendente lite maintenance during pendency of the
proceedings as has been awarded by this Court vide order dated 4.12.2012.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 20.05.2016

BEFORE

THE HON'BLE RAM SURAT RAM (MAURYA), J.

Matter Under Article 227 No.- 3687 Of 2016
&
Matter Under Article 227 No.- 3688 Of 2016

Smt. Shanti alias Satiya ...Petitioner
Versus
Smt. Phoolan Dullaiya & Ors. ...Respondents