# Geeta Devi v. Sushil Kumar Yadav Opp. Party 146 INDIAN LAW REPORTS ALLAHABAD SERIES

- **Citation:** (2021) 6 ILRA 145
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020-01-03
- **Case number:** First Appeal No. 917 of 2019
- **Bench:** Bala Krishna Narayana, Shamim Ahmed
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/geeta-devi-v-sushil-kumar-yadav-opp-party-146-indian-law-reports-allahabad-46168
- **Pages:** 5

## Headnote

A. Civil Law - Hindu Marriage Act, 1955 -
Sections 13 & 24 - Matrimonial dispute -
Divorce - Expenses of proceeding, claimed
-
Quantum
of
interim
maintenance,
determination thereof - Principle laid
down - Defendant-appellant is working as
Headmistress
in
Primary
School
and
getting regular salary - Held, having due
regard to Section 24, the Court is required
to take into consideration the income of
the parties before deciding the quantum
of the interim maintenance - The Court
has to keep in view of the need of the
applicant-defendant and paying capacity
of
the
plaintiff-opposite
party
-
Defendant-appellant can maintain herself
and she can bear the expenses of
litigation and therefore, she is not entitled
for any relief under section 24. (Para 8, 10
and 14)

First Appeal dismissed. (E-1)
Cases relied on :-

## Text

6 All. Geeta Devi Vs. Sushil Kumar Yadav
145
in judicial proceedings, which is part of the
record before the Family Court, has
categorically mentioned that she also
showed her desire to live separately from
the appellant and bring an end to the
marriage. Learned Judge has come to the
conclusion that there was no cruelty
perpetrated by the respondent rather he has
come to the negative finding that cruelty
was perpetrated by the husband. The
evidence on record of the wife in other
matters has been made the main basis for
refusing grant of decree of divorce.

21. The matter had gone before the
mediator where both the parties rather the
appellant showed his desire to take the
respondent back to the matrimonial home
where also she has not showed any desire
in continuing the marriage which showed
that the learned Judge ought to have
pressed into service the provisions of Order
XII Rule 6 of the Code of Civil Procedure
which
are
made
applicable
to
the
proceedings before the Family Courts. As,
in our case, there is clear admission though
not in the Form No. 10 of the Appendix,
the admission of facts should have been
taken into consideration while passing the
judgment. The provisions of Order 12 Rule
6 reads as follows:-

[6.
Judgment
on
admissions.-(1)
Where admissions of fact have been made
either in the pleading or otherwise, whether
orally or in writing, the Court may at any
stage of the suit, either on the application
of any party or of its own motion and
without waiting for the determination of
any other question between the parties,
make such order or give such judgment as
it may think fit, having regard to such
admissions.

(2)
Whenever
a
judgment
is
pronounced under sub-rule (1), a decree
shall be drawn up in accordance with the
judgment and the decree shall bear the date
on which the judgment was pronounced.]

22. Much emphasis has been placed
on record by the Counsel for the appellant.
The Hon'ble Supreme Court in the case of
K. Srinivas Vs. K. Sunita reported in
(2014) 16 SCC 34, has held that the
respondent wife filed a false criminal
complaint resultant acquittal of husband
and his family members, such complaint is
sufficient to constitute matrimonial cruelty.

23. In an another matter, the Hon'ble
Supreme Court in the case of Rani
Narsimha Sastry Vs. Rani Suneela Rani,
civil Appeal No.8871 of 2019, decided on
19.11.2019 held that when a person
undergoes a trial in which he is acquitted of
the allegation of offence under Section
498A of IPC, levelled by the wife against
the husband, it cannot be accepted that no
cruelty has meted out to the husband.

24. In that view of the matter, the
appeal is allowed. Unfortunately, as the
wife is not before us we do not pass any
orders for maintenance which she may
raise under the law as/if permitted to her.
----------
(2021)06ILR A145
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 03.01.2020

BEFORE

THE HON'BLE BALA KRISHNA NARAYANA, J.
THE HON'BLE SHAMIM AHMED, J.

First Appeal No. 917 of 2019

Geeta Devi ...Appellant
Versus
Sushil Kumar Yadav ...Opp. Party
146 INDIAN LAW REPORTS ALLAHABAD SERIES
Counsel for the Appellant:
Sri Rajiv Kumar Mishra, Sri Radhey Shyam

Counsel for the Opp. Party:
--

A. Civil Law - Hindu Marriage Act, 1955 -
Sections 13 & 24 - Matrimonial dispute -
Divorce - Expenses of proceeding, claimed
-
Quantum
of
interim
maintenance,
determination thereof - Principle laid
down - Defendant-appellant is working as
Headmistress
in
Primary
School
and
getting regular salary - Held, having due
regard to Section 24, the Court is required
to take into consideration the income of
the parties before deciding the quantum
of the interim maintenance - The Court
has to keep in view of the need of the
applicant-defendant and paying capacity
of
the
plaintiff-opposite
party
-
Defendant-appellant can maintain herself
and she can bear the expenses of
litigation and therefore, she is not entitled
for any relief under section 24. (Para 8, 10
and 14)

First Appeal dismissed. (E-1)
Cases relied on :-
1. Padmavathi Vs C. Lakshminarayana; AIR
2002 Kant 424
2. Neelam Kalia Vs Rajesh Kalia; AIR2013 HP 76
3. Captain Ramesh Chander Vs Veena Kaushal;
AIR 1978 SC 1807
4. Manokaram Vs Devaki; AIR 2003 Mad 212

(Delivered by Hon'ble Shamim Ahmed, J.)

1. Heard learned counsel for the
defendant-appellant
and
perused
the
impugned judgment and order.

2. This appeal is directed against the
impugned judgment and order dated
21.11.2019 passed by the Principal Family
Judge, Jaunpur, by which, the application18ga moved by the defendant-appellant,
under Section 24 of the Hindu Marriage
Act, 1955 in Case No.943 of 2015 ( Sushil
Kumar Yadav Vs. Geeta Devi) has been
rejected.

3. It is contended by the learned
counsel for the defendant-appellant that the
marriage
of
defendant-appellant
was
performed with plaintiff-opposite party on
27.11.2004 according to Hindu Rites and
Rituals and after the marriage, both of them
were living peacefully and from the
aforesaid wed-lock, two daughters namely,
Vishanavi and Pragati were born. It is
further contended that prior to the marriage,
both the parties were appointed on the post
of assistant teacher and they were posted in
different places.

4. It is further contended by the
learned counsel for the defendant-appellant
that the plaintiff/opposite party started
treating
the
defendant-appellant
with
cruelty but the defendant-appellant kept
mum and tried to negotiate the matter but
plaintiff-opposite party did not pay any
heed and threw the defendant-appellant out
from his house, and thereafter, the
defendant-appellant and her two minor
daughters are living separately and the
plaintiff-opposite party is not taking care
and not paying any amount for their
expenditure.

5. Learned counsel for the defendantappellant
further
contended
that
the
plaintiff-opposite party has filed a petition
before the learned Trial Court, under
Section 13 of the Hindu Marriage Act
bearing
Case
No.943
of
2015
on
19.12.2015. Notices were issued and when
the defendant-appellant got the information
he was shocked by the conduct of the
plaintiff-opposite party and she tried to
6 All. Geeta Devi Vs. Sushil Kumar Yadav
147
negotiate the matter but the plaintiffopposite party did not pay any heed and
refused to live jointly.

6. Learned counsel for the defendantappellant
further
contended
that
the
defendant-appellant's financial condition
was not good, therefore, she filed an
application under Section 24 of Hindu
Marriage Act with the prayer that she is
unable to maintain herself and her two
daughters, therefore, she needs an interim
maintenance for Rs.5,000/- per month for
herself and Rs.5,000/- for filing written
statement and Rs.500/- per month for
conveyance charges to attend the Court.

7. Learned counsel for the defendantappellant
further
contended
that
the
plaintiff-opposite party filed his objection
19-Ga and submitted that the defendantappellant is working as Headmistress in
Primary School, Bara Deeh, Chhota Deeh,
Gyanpur and after deduction she is getting
a total sum of Rs.63,056/- per month and
she has already filed an application, under
Section 125 Cr.P.C, by which the Court
below vide its order dated 28.11.2017
declined to pay any amount to the
defendant-appellant and only directed to
pay Rs.4,000/- per month to each of the
daughters totalling to Rs.8,000/- per month
for their maintenance. In the objection 19ga, the plaintiff-opposite party further
submitted that defendant-appellant from his
income purchased a land on which a
boundary wall was constructed, therefore,
she is not in need to get any amount under
Section 24 of the Hindu Marriage Act as
prayed by her in application no.18ga. It is
also mentioned in the application that the
old parents are also living with the
plaintiff-opposite party and he is bearing all
expenses of their medicines and other
requirements
and
prayed
that
the
application 18-ga filed by the defendantappellant under Section 24 of the Hindu
Marriage Act may be dismissed.

8. Having heard learned counsel for
the defendant-appellant and perused the
impugned judgement and order dated
21.11.2019 as well as the other material
brought on record, we find that the Court
below after coming to the conclusion that
the defendant-appellant is working as
Headmistress in Primary School, Bara
Deeh, Chhota Deeh, Gyanpur, District
Bhadohi and getting regular salary and
further the plaintiff-opposite party is paying
Rs.4000/- each to the minor daughters for
their
maintenance
vide
order
dated
28.11.2017 rejected the application filed
under Section 125 Cr.P.C further observing
that the plaintiff/opposite party is also
maintaining his own parents, for which,
there is no denial on behalf of defendantappellant.

9. It is not out of place to mention
here that the provision of Section 24 of the
Hindu Marriage Act which provided as
under:-

"Where in any proceeding under this
Act it appears to the court that either the
wife or the husband, as the case may be,
has no independent income sufficient for
her or his support and the necessary
expenses of the proceeding, it may, on the
application of the wife or the husband,
order the respondent to pay to the
petitioner the expenses of the proceeding,
and monthly during the proceeding such
sum as, having regard to the petitioner's
own income and the income of the
respondent, it may seem to the court to be
reasonable.

[Provided that the application for the
payment of the expenses of the proceeding
148 INDIAN LAW REPORTS ALLAHABAD SERIES
and
such
monthly
sum
during
the
proceeding, shall, as far as possible, be
disposed of within sixty days from the date
of service of notice on the wife or the
husband, as the case may be.]"

10. Having due regard to the provision
of Section 24 of Hindu Marriage Act, the
Court is required to take into consideration
the income of the parties before deciding the
quantum of the interim maintenance. The
Court has to keep in view of the need of the
applicant-defendant and paying capacity of
the plaintiff-opposite party, this view was
taken in the case of Padmavathi Vs. C.
Lakshminarayana, AIR 2002 Kant 424.
Further, the Himanchal Pradesh High Court
in the case of Neelam Kalia Vs. Rajesh
Kalia, AIR2013 HP 76 was pleased to
observe that if maintenance is being paid
under section 125 of the Code of Criminal
Procedure, 1973 , the same though can be
taken into consideration while granting
maintenance pendentelite under Section 24 of
the Hindu Marriage Act, 1955. The Hon'ble
Apex Court in the case of Captain Ramesh
Chander Vs. Veena Kaushal, AIR 1978 SC
1807 was pleased to observe that mere
divorce
does
not
end
the
right
to
maintenance. The Madras High Court in the
case of Manokaram Vs. Devaki, AIR 2003
Mad 212 was pleased to observe that during
the pendency of the divorce proceedings at
any point of time if the wife establishes that
she has no sufficient independent income for
her support, it is open to her to claim
maintenance pendente lite.

11. In our view the provisions of
Section 24 of the Hindu Marriage Act
provides for support to be given by the
earning spouse in favour of non earning
spouse during the pendency of proceedings
before the court.

12. But in the present case, the wife
(defendant-appellant)
is a government
teacher and she is getting a handsome
salary which is sufficient for her to
maintain herself, therefore, she is not
entitled to get the benefit of maintenance as
provided under Section 24 of the Hindu
Marriage Act and the two children are also
getting an amount of Rs.4,000/- per month
for their maintenance vide order dated
28.11.2017 passed in an application filed
under Section 125 Cr.P.C. by defendantapplicant.

13. Therefore, in the present case, the
defendant-appellant is not in need of any
amount as provided under the provisions of
Section 24 of the Hindu Marriage Act. She
is also working as Headmistress in the
Primary School and receiving handsome
salary for maintaining herself and she can
bear the expenses of the litigation without
any difficulty. Apart from this, the
plaintiff-opposite party is paying Rs.4,000/-
per month to each of the daughters
regularly (total of Rs.8000/-) for their
maintenance and there is no case set up by
the defendant-appellant that the plaintiff-
opposite party has committed default in
payment of the amount to the above minor
daughters.

14. In view of the observation made
above and the law laid down by the Hon'ble
Apex Court and the High Court in this
regard, we are of the view that there is no
dispute that the defendant-appellant is
earning good salary as she is the
government employee and working as
Headmistress in Primary School, therefore,
she can maintain herself and she can bear
the expenses of litigation and therefore, she
is not entitled for any relief under section
24 of the Hindu Marriage Act,1955.
6 All. Smt. Hadisul Nisha Vs. Addl. Commissioner (J) & Ors.
149

15. The Court below after considering
all the materials on record has rightly come
to the conclusion that the defendantappellant is not entitled for any relief,
under Section 24 of the Hindu Marriage
Act, 1955 and has rightly rejected the
application 18-ga filed by the defendantappellant.

16. However, considering the peculiar
facts and circumstances of the case, the
Principal Family Judge, Jaunpur is directed
to make every possible endeavour to decide
the Case No. 943 of 2015 (Sushil Kumar
Yadav Vs. Geeta Devi) filed u/s 13 of the
Hindu Marriage Act within a period of six
months from the date of filing of a certified
copy of this order.

17. Subject to the aforesaid direction,
this appeal is ,accordingly, dismissed.

18. No order as to cost.
----------

(2021)06ILR A149
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 25.06.2021

BEFORE

THE HON'BLE MRS. SANGEETA CHANDRA, J.

Misc. Single No. 5147 of 2015

Smt. Hadisul Nisha ...Petitioner
Versus
Addl. Commissioner (J) & Ors.
 ...Respondents

Counsel for the Petitioner:
S.K.
Upadhyay,
Pradeep
Kumar
Maurya,
Pramesh Kumar Jaiswal

Counsel for the Respondents:
C.S.C., Adnan Ahmad, B.K. Singh, Varun Pratap
Singh
(A) Civil Law - Uttar Pradesh Zamindari
Abolition and Land Reforms Act, 1950 -
Sections 171 (1) , 172 (2) - Uttar Pradesh
Land Revenue Act, 1901 - Sections 34 , 35
, 219 - Uttar Pradesh Revenue Code 2006
- Sections 34, 35 - Land Law - Excess
jurisdiction -Mutation proceedings being
summary proceedings, only decide the
question of liability to pay taxes/land
revenue to the Government - mostly
decided on the basis of possession - a
proclamation is made on the basis of
mutation application in favour of a person
who has obtained possession on his
having shown to the court evidence that
he was in possession, in support of his
objection. (Para - 15,27)

Petitioner (widow) - name recorded on the
basis of succession - Opposite Party No.3
(brother of Petitioners husband) initially filed an
application for mutation on the basis of forged
Will deed - dismissed for want of prosecution -
application for recall of the order - not pressed
by Opposite Party No.3 - after nearly ten years
moved another application for mutation of
property - ground - remarriage of the
petitioner - rejected by the Tehsildar - Appeal
before Sub Divisional Magistrate - allowed exparte - Revision before Additional Commissioner
- rejected - observations being prejudicial to
the petitioner's interest - holding her to have
remarried - dis-entitled to inherit the property of
her late husband - petitioner filed Writ
Petition.(Para - 2,3,4,5)

HELD:- There is no finding recorded either by
the Appellate Court or by the Revisional Court
as to who was in actual possession of the
property in question and therefore liable to pay
revenue to the Government. The orders
impugned have placed reliance on the issue of
whether petitioner had remarried or not. The
evidence
produced
by
either
side
being
inconclusive, still a finding was recorded that
the petitioner had remarried and therefore was
disentitled to the property of her late husband
as per Sections 171 and 172 of the U.P.Z.A. &
L.R. Act. The orders impugned being clearly in
excess
of
jurisdiction
conferred
on
such
authorities, and also against the statutory
provisions of the U.P. Land Revenue Act, are set
aside. (Para - 29,30)