# Kumar, G.M., N. Rlys v. Avinash

- **Citation:** First Appeal No. 174 of 2012
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2013-04-30
- **Case number:** First Appeal No. 174 of 2012
- **Bench:** Saeed-Uz-Zaman Siddiqi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/kumar-g-m-n-rlys-v-avinash-42860
- **Pages:** 5

## Headnote

Hindu Marriage Act, 1956- Section 24Interim maintenance-During Pendency of
Divorce proceeding-Trail Court rejected
application-revisional Court-set-a-side the
order
and
directed
for
interim
maintenance-suit dismissed as withdrawn
without considering interim maintenancemaintaining
the
order
of
dismissaldirection to Trail Court to decide interim
maintenance application on merit-issued.

Held: Para-10
In view of the discussions made above,
appeal is allowed. The impugned order is
set aside in as much as it does not
discuss
anything
about
maintenance
under Section 24 of the Act. The
withdrawal of the suit as desired by the
plaintiff (respondent before me) is not
disturbed by this order but the learned
Trial
Court
is
directed
to
decide
application of the appellant/wife under
Section 24 of Hindu Marriage Act,
without delay, on merits.

Case Law discussed:
AIR 1984 Punjab and Haryana 332; AIR
1988 Calcutta 98; AIR 1993 Bombay 160

## Text

1 All State of U.P. Vs. Kanhaiya Lal
441
p. 109 : SCC p. 556, para 19) considered
the direction issued by the High Court and
upheld that there has to be "no pay for no
work", i.e., a person will not be entitled to
any pay and allowance during the period
for which he did not perform the duties of
higher
post,
although
after
due
consideration, he was given a proper
place in the gradation list having been
deemed to be promoted to the higher post
with effect from the date his junior was
promoted. He will be entitled only to step
up the scale of pay retrospectively from
the deemed date but is not entitled to the
payment of arrears of the salary. The
same ratio was reiterated in Virender
Kumar, G.M., N. Rlys. v. Avinash
Chandra Chandha (SCC p. 482, para 16).
"

9. The aforesaid proposition of law
has been followed in the case of Tarsem
Lal(supra) where in identical situation,
Hon'ble Supreme Court has declined to
grant arrears of salary.

10. The cases relied upon by the
learned
counsel
for
the
claimant
respondents seems to be based on
different facts and circumstances. In the
case of G.P. Swami (supra), an employee
was dismissed from service but later on
restored in service. Because of pendency
of litigation, he could not be restored in
service at earlier date. Their Lordships of
Hon'ble Supreme Court held that since
during the course of litigation, the
employee retired, salary for the period
when the employee was out of job may be
paid to him.

11.

The
case
of
Dhanpal
Singh(supra) was decided by one of us
(Hon. Devi Prasad Singh, J) whereby
while allowing for notional promotion,
consequential benefit was granted with
retrospective
effect
and
from
the
judgment, it appears that the notional
promotion was granted only for the
purpose of pensionary benefits. This
Court has not passed any order to pay
arrears of salary in the case of Dhanpal
Singh (supra).

12. In any case, the Constitution
Bench judgment of Hon'ble Supreme
Court
in
the
case
of
Paluru
Ramkrishnaiah(supra)
and
other
judgments (supra) of Hon'ble Supreme
Court is a binding precedent where
Hon'ble Supreme Court held that where
promotion is granted from retrospective
date, then the salary for the period the
petitioner actually had not worked in the
promotional post shall not be paid.
Accordingly, the tribunal seems to have
failed to exercise jurisdiction vested in it.
Thus, the impugned order seems to suffer
from substantial illegality.

13. The writ petition deserves to be
and is hereby allowed. A writ in the
nature of certiorari is issued quashing the
impugned judgment and order dated
10.9.2009, passed by State Public Service
Tribunal, Lucknow in Claim Petition
No.952 of 2003. The claim petition is also
dismissed to the extent it relates to
payment of arrears of salary in lieu of
notional promotion.

14. No order as to costs.
---------
APPELLATE JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 30.04.2013

BEFORE
THE HON'BLE SAEED-UZ-ZAMAN
SIDDIQI,J.
442 INDIAN LAW REPORTS ALLAHABAD SERIES [2013
First Appeal No. 174 of 2012

Pratima Yadav

...Petitioner
Versus
Vinod Kumar Yadav
 ..Respondent
Counsel for the Petitioner:
Sri D.P. Dwivedi, Sri Sharad Dwivedi

Counsel for the Respondent:
Sri Akhilesh Kr. Srivastava

Hindu Marriage Act, 1956- Section 24Interim maintenance-During Pendency of
Divorce proceeding-Trail Court rejected
application-revisional Court-set-a-side the
order
and
directed
for
interim
maintenance-suit dismissed as withdrawn
without considering interim maintenancemaintaining
the
order
of
dismissaldirection to Trail Court to decide interim
maintenance application on merit-issued.

Held: Para-10
In view of the discussions made above,
appeal is allowed. The impugned order is
set aside in as much as it does not
discuss
anything
about
maintenance
under Section 24 of the Act. The
withdrawal of the suit as desired by the
plaintiff (respondent before me) is not
disturbed by this order but the learned
Trial
Court
is
directed
to
decide
application of the appellant/wife under
Section 24 of Hindu Marriage Act,
without delay, on merits.

Case Law discussed:
AIR 1984 Punjab and Haryana 332; AIR
1988 Calcutta 98; AIR 1993 Bombay 160

(Delivered by Hon'ble Saeed-uz-Zaman
Siddiqi, J)

1. The instant appeal has been
preferred under Section 28 of Hindu
Marriage Act, read with Section 19 of
Family Court Act, against the order
dated 10.10.2012, passed by learned
Civil Judge (S.D.), Ambedkar Nagar in
Case No.259 of 2004 by which the suit
for divorce was dismissed as withdrawn.

2. Brief facts of the case are that the
respondent filed suit for divorce which
was registered by the learned Trial Court as
Suit No.259 of 2004. In the said suit the
appellant moved an application for interim
maintenance under Section 24 of Hindu
Marriage Act (hereinafter referred to as the
"Act"), which was rejected by the learned
Trial Court against which she preferred
Civil Revision No.69 of 2008 which was
allowed by learned Additional District
Judge,
Ambedkar
Nagar
and
the
impugned order was quashed and the
learned Trial Court was directed to decide
the application for ad-interim maintenance
under Section 24 of the Act on merits. This
order was passed on 12.01.2012. The
mischievous husband immediately moved
an application for withdrawal of the suit
which was numbered as 54-A1, against
which the appellant filed objection 55-C.
Learned Trial Court allowed the application
subject to payment of Rs.4,00/- as cost and
the suit was dismissed as withdrawn. The
wife/defendant has preferred this appeal
against the impugned order.

3. Heard learned counsel for both
the parties and perused the records.

4. The only point which is involved
in this appeal is that the suit was filed in
the year 2004. The application under
Section 24 of the Act was moved which
was dismissed vide order dated 1.10.2008.
Now the suit has been dismissed as
withdrawn vide order dated 10.10.2012. It
was argued by the learned counsel for
appellant that during the period of
institution of suit till its dismissal the
defendant who is appellant before this
Court
is
entitled
for
ad-interim
1 All Pratima Yadav Vs. Vinod Kumar Yadav
443
maintenance as provided under Section 24
of the Act.

5. For ready reference Section 24 of
Act is reproduced below:-

"24. Maintenance Pendente lite and
expenses
proceedings.
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."

6. A plain reading of the Act shows
that intention of the legislature is that
where in any proceedings 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, order the respondent
to pay the the expenses of the proceedings
and monthly during the proceeding. These
words
make
the
intention
of
the
legislature quite clear that expenses have
to be allowed by the Court if the
requirement as provided under Section 24
of Act are fulfilled for a period during the
pendency of the suit or proceeding.
Termination of proceedings cannot be
treated to be a bar of providing interim
maintenance under Section 24 of the Act.
In this regard the order of rejection of adinterim maintencne has already been
quashed by the Revisional Court vide
order dated 12.1.2012, passed in Civil
Revision No.69 of 2008. It was incumbent
upon the learned Trial Court to have
implemented the order of the Revisional
Court at the time of withdrawing of the
suit which the learned Trial Court has
failed to do. The object of enacting
Section 24 of the Act is that an indigent
spouse should not suffer during pendency
of the proceedings because of his/her
poverty. The whole purpose of Section
would frustrate in case it is dismissed on
the ground that after the decision of the
main petition it does not survive.

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
come 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
444 INDIAN LAW REPORTS ALLAHABAD SERIES [2013
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."

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
(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."

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."

8. Similar view has been taken by
the Calcutta High Court in the case of
Chitra Sengupta v. Dhruba Jyoti
Sengupta, AIR 1988 Calcutta 98,
1 All Pratima Yadav Vs. Vinod Kumar Yadav
445
wherein it has been held that the wifeappellant, who appealed against a decree
of divorce passed against he, 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."

9. 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.

10. In view of the discussions made
above, appeal is allowed. The impugned
order is set aside in as much as it does not
discuss anything about maintenance under
Section 24 of the Act. The withdrawal of
the suit as desired by the plaintiff
(respondent before me) is not disturbed by
this order but the learned Trial Court is
directed to decide application of the
appellant/wife under Section 24 of Hindu
Marriage Act, without delay, on merits.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 10.04.2013

BEFORE
THE HON'BLE RAN VIJAI SINGH,J.

Civil Misc. Writ Petition No. 203 Of 1990

Ram Awadh and another ...Petitioners
Versus
The Board of Revenue U.P. Allahabad
and others

 ...Respondents

Counsel for the Petitioners:
Sri R.S. Chauhan, Sri Alik Singh
Sri Ambrish Prasad, Sri M.K. Dhrubvanshi
Sri R.N. Singh, Sri R.S. Maurya
Sri Surendra Nath Singh

Counsel for the Respondents:
C.S.C., Sri S.K. Tyagi
U.P.Z.A. & L R Act, Section-198- readwith
amended
U.P.
Act
No.
IVf
1969-
Cancellation of lease granted prior to
28.06.68-Power
vested
with
Astt.
Collector of the Division-but lease after
28.06.68-only the collection empowered
to cancel-Board of Revenue rightly set-aside the order by Asst. Collector-being
without
jurisdiction
but
instead
of
directing the Collector or to place the
complaint before collector-kept mumorder passed by Board modified to the
extant-consequential direction issued.

Held: Para-14
Reverting back to the facts of this case,
as I have noticed and found that there
can be no illegality in the order passed
by
the
learned
Member,
Board
of
Revenue, so far as it is held that the
order cancelling the lease by the Sub
Divisional
Officer
was
without
jurisdiction, but simultaneously, looking
into the grievance of the petitioners on
merit, which is still unredressed, this
Court provides an opportunity to the
petitioners to approach the Collector for
cancellation of the lease granted in
favour of the father of respondent nos.
5/1 and 5/2.

Case Law discussed:
2004(9) SCC 619; 2011(11) SCC 198; Special
Appeal No. 164 of 2012; 2012(11) ADJ 70

(Delivered by Hon'ble Ran Vijay Singh, J.)

1. Learned counsel for the petitioners
states that he may be permitted to amend
the prayer by deleting the quashing of the
order dated 23.8.1973. He is permitted to so
during the course of the day.