# Shashi Pal v. Sachin Kumar Pal

- **Citation:** (2024) 10 ILRA 906
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-10-24
- **Case number:** First Appeal No. 20 of 2023
- **Bench:** Rajan Roy, Om Prakash Shukla
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/shashi-pal-v-sachin-kumar-pal-51159
- **Pages:** 8

## Headnote

Civil Law- Appeal under Section 19 (1) of
the
Family
Court
Act,
1984-Hindu
Adoptions and Maintenance Act, 1956 -
Section 18 - Maintainability of claim for
maintenance under Section 18 despite
parallel proceedings under Section 125
Cr.P.C. - Held, proceedings under Section
125 Cr.P.C. are summary in nature and do
not bar a separate suit under Section 18 of
the 1956 Act - Claim under Section 18
maintainable when prior maintenance
under Cr.P.C. has been disclosed
-
Directions in Rajnesh v. Neha, (2021) 2
SCC 324, followed.

Code of Criminal Procedure, 1973 -
Section 125 - Proceedings under Section
125 Cr.P.C. do not preclude a subsequent
claim for maintenance under personal law
statutes - Principles of adjustment and
set-off to apply to avoid overlapping
maintenance orders- Maintenance must
be realistic and meet basic sustenanceAppeal partly allowed. (Paras 12, 16, 17,
and 21)

HELD:
Having regard to the rival submissions of the
learned Counsel for the parties and going
through the record available before this Court,
the point of consideration before us is twofold,
(I) whether suit filed by the appellant under
Section
18
of
the
Hindu
Adoption
and
Maintenance
Act,
1956
is
maintainable
especially in view of the order of maintenance
granted under Section 125 of the Cr.P.C.?; and
(ii) whether quantum of maintenance granted
by the Family Court vide impugned order is
adequate, if no, then what reliefs. (Para 12)

Later on, the Apex Court in its celebrated
judgment in Rajnesh v. Neha & anr. : (2021) 2
SCC
324
has
laid
down
comprehensive
guidelines pertaining to overlapping jurisdiction
among courts when concurrent remedies for
grant of maintenance are available under the
Special Marriage Act, 1954, Section 125 Cr.P.C.,
the Protection of Women from Domestic
Violence Act, 2005, Hindu Marriage Act, 1955
and Hindu Adoptions and Maintenance Act,
10 All. Shashi Pal Vs. Sachin Kumar Pal
907
1956, and Criteria for determining quantum of
maintenance, date from which maintenance is
to be awarded, enforcement of orders of
maintenance including fixing payment of interim
maintenance. (Para 16)

From perusal of the record of the Family Court,
we find that the appellant has filed additional
affidavit dated 17.10.2022, wherein at para-6,
the factum of granting maintenance under
Section
125
Cr.P.C.
has
been
narrated.
Therefore, there is full disclosure of the
maintenance having been awarded
under
section 125 of the Cr. P.C. Thus, in view of the
Rajneesh case ( mentioned supra), we are of
the view that the suit filed by the appellant
under Section 18 of the Hindu Adoption and
Maintenance
Act,
1956
was
very
much
maintainable and the Family Court has rightly
entertained the suit filed by the appellant. Point
no.1 is answered in affirmative in favour of the
appellant. (Para 17)

This Court finds that even if this meagre amount
of Rs. 1000/-, when added to the maintenance
amount as granted under Section 125 Cr.P.C to
the appellant, the said amount cannot be
termed as adequate or commensurate to
maintain a living in today's society. The Court
should not forget that any maintenance
awarded should not be merely ornamental or
defeat the very purpose for which it has been
provided for under the statute. The learned
Family Court was expected to be more realistic
and pragmatic in awarding the maintenance
amount and should not be oblivious to the daily
basic needs required for sustaining in today's
world, keeping in mind that the sheer object of
granting maintenance under any law is to afford
the weaker party with sufficient means to
sustain herself/ himself. (Para 21)

Appeal partly allowed. (E-14)

List of Cases cited:

## Text

906 INDIAN LAW REPORTS ALLAHABAD SERIES
of forum shopping, which practice has
always been deprecated by the Courts.

15.

Having
considered
the
aforesaid facts and circumstances of the
case, this Court is of the considered view
that when a statutory remedy of filing a
revision before this Court itself is available
to the applicant which revision will also be
placed before an Hon'ble Single Judge
Bench
of
this
Court,
although
the
application under Section 528 of BNSS
would be maintainable, it would not be
proper for this Court to exercise it
discretion of invoking its inherent powers
when the petitioner has got a statutory
remedy available under Section 438 BNSS,
which remedy lies before this Court itself.
For the aforesaid reasons, this Court finds
that although the application under Section
528 BNSS would be maintainable, it would
not be entertainable in view of the peculiar
facts and circumstances of the case.

16. Accordingly, the application is
dismissed leaving it open to the applicant to
avail the statutory remedy under Section
438 BNSS available to her.
----------
(2024) 10 ILRA 906
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 24.10.2024

BEFORE

THE HON'BLE RAJAN ROY, J.
THE HON'BLE OM PRAKASH SHUKLA, J.

First Appeal No. 20 of 2023

Shashi Pal ...Appellant
Versus
Sachin Kumar Pal ...Respondent

Counsel for the Appellant:
Anup Kumar Mishra
Counsel for the Respondent:
Manjeet Singh

Civil Law- Appeal under Section 19 (1) of
the
Family
Court
Act,
1984-Hindu
Adoptions and Maintenance Act, 1956 -
Section 18 - Maintainability of claim for
maintenance under Section 18 despite
parallel proceedings under Section 125
Cr.P.C. - Held, proceedings under Section
125 Cr.P.C. are summary in nature and do
not bar a separate suit under Section 18 of
the 1956 Act - Claim under Section 18
maintainable when prior maintenance
under Cr.P.C. has been disclosed
-
Directions in Rajnesh v. Neha, (2021) 2
SCC 324, followed.

Code of Criminal Procedure, 1973 -
Section 125 - Proceedings under Section
125 Cr.P.C. do not preclude a subsequent
claim for maintenance under personal law
statutes - Principles of adjustment and
set-off to apply to avoid overlapping
maintenance orders- Maintenance must
be realistic and meet basic sustenanceAppeal partly allowed. (Paras 12, 16, 17,
and 21)

HELD:
Having regard to the rival submissions of the
learned Counsel for the parties and going
through the record available before this Court,
the point of consideration before us is twofold,
(I) whether suit filed by the appellant under
Section
18
of
the
Hindu
Adoption
and
Maintenance
Act,
1956
is
maintainable
especially in view of the order of maintenance
granted under Section 125 of the Cr.P.C.?; and
(ii) whether quantum of maintenance granted
by the Family Court vide impugned order is
adequate, if no, then what reliefs. (Para 12)

Later on, the Apex Court in its celebrated
judgment in Rajnesh v. Neha & anr. : (2021) 2
SCC
324
has
laid
down
comprehensive
guidelines pertaining to overlapping jurisdiction
among courts when concurrent remedies for
grant of maintenance are available under the
Special Marriage Act, 1954, Section 125 Cr.P.C.,
the Protection of Women from Domestic
Violence Act, 2005, Hindu Marriage Act, 1955
and Hindu Adoptions and Maintenance Act,
10 All. Shashi Pal Vs. Sachin Kumar Pal
907
1956, and Criteria for determining quantum of
maintenance, date from which maintenance is
to be awarded, enforcement of orders of
maintenance including fixing payment of interim
maintenance. (Para 16)

From perusal of the record of the Family Court,
we find that the appellant has filed additional
affidavit dated 17.10.2022, wherein at para-6,
the factum of granting maintenance under
Section
125
Cr.P.C.
has
been
narrated.
Therefore, there is full disclosure of the
maintenance having been awarded
under
section 125 of the Cr. P.C. Thus, in view of the
Rajneesh case ( mentioned supra), we are of
the view that the suit filed by the appellant
under Section 18 of the Hindu Adoption and
Maintenance
Act,
1956
was
very
much
maintainable and the Family Court has rightly
entertained the suit filed by the appellant. Point
no.1 is answered in affirmative in favour of the
appellant. (Para 17)

This Court finds that even if this meagre amount
of Rs. 1000/-, when added to the maintenance
amount as granted under Section 125 Cr.P.C to
the appellant, the said amount cannot be
termed as adequate or commensurate to
maintain a living in today's society. The Court
should not forget that any maintenance
awarded should not be merely ornamental or
defeat the very purpose for which it has been
provided for under the statute. The learned
Family Court was expected to be more realistic
and pragmatic in awarding the maintenance
amount and should not be oblivious to the daily
basic needs required for sustaining in today's
world, keeping in mind that the sheer object of
granting maintenance under any law is to afford
the weaker party with sufficient means to
sustain herself/ himself. (Para 21)

Appeal partly allowed. (E-14)

List of Cases cited:

1. Nagendrappa Natikar Vs Neelamma, (2014)
14 SCC 452

2. Rajnesh Vs Neha & anr., (2021) 2 SCC 324

3. Chaturbhuj Vs Sita Bai, (2008) 2 SCC 316
(Delivered by Hon'ble Om Prakash Shukla, J.)

(1) Heard Shri Anup Kumar Mishra,
learned Counsel representing the appellant
and Shri Manjeet Singh, learned Counsel
representing the respondent.

(2) This appeal under Section 19
(1) of the Family Court Act, 1984 has been
filed by the wife/appellant, Shashi Pal,
seeking enhancement of the quantum of
maintenance inter alia on the grounds that
merely Rs.1000/- has been granted by the
Additional Principal Judge, Family Court,
Pratapgarh (hereinafter referred to as the
'Family
Court')
vide
order
dated
16.11.2022 in Original Suit No. 737 of
2017 filed by her under Section 18 of the
Hindu Adoptions and Maintenance Act,
1956.

(3) The factual matrix of the case at
hand, which has been highlighted by the
appellant, is that marriage of appellant and
respondent was solemnized on 09.05.2006 in
accordance with Hindu rites and rituals. In the
said marriage, appellant's father gave dowry
including household goods as per his capacity
to the respondent. Out of their wedlock, one
child, namely, Sauryapal, was born on
03.08.2008. In the year 2008, the father of
respondent/husband, who was working in the
railway department, died, as a consequence of
which,
the
respondent/
husband
got
appointment in the railway department on
compassionate ground in the year 2008 itself.
After getting job in the railway department, the
respondent/husband became careless towards
his marital life and on 26.06.2012, he
solemnized a second marriage illegally with
one Nilam Pal son of Gyan Prakash Pal,
residence of Naya Mal Godam Road, P.S.
Kotwali Nagar, district Pratapgarh and
eventually the appellant was thrown out of her
matrimonial home in September, 2017.
908 INDIAN LAW REPORTS ALLAHABAD SERIES
(4) Based on the aforesaid
facts/allegations,
the
wife/appellant
instituted Original Suit No.737 of 2017
under Section 18 of the Hindu Adoptions
and Maintenance Act, 1956 on 27.10.2017
before the Family Court, claiming half of
the appellant's salary towards maintenance.
In the said suit, notice was issued to the
defendant/husband. In response thereof, the
defendant/husband filed his objection,
denying all the allegations made in the
plaint.
It
has
been
stated
by
the
defendant/husband that plaintiff/appellant
herself left him (defendant/husband) and
the children on 10.03.2005 and has started
living at her father's residence and since
then, marital relationship has not been
established between them. It has been
stated in para-21 and 22 of the objection
that it was only after husband's sincere
persuasion, the appellant got ready to
dissolve the marriage subject to payment of
Rs.15,00,000/- in one lump sum and also
returning the stridhan to her. Thereafter, the
husband/ respondent has returned stridhan
to the appellant/wife and also handed over
a Demand Draft No. 002398 amounting to
Rs.5,00,000/- to the wife/appellant on the
date of institution of a suit under Section
13-B of the Hindu Marriage Act, 1955,
which was filed seeking Divorce on mutual
consent, however, subsequently, the said
suit filed under Section 13-B of the Hindu
Marriage Act, 1955 was dismissed due to
non-presence and non-participation of the
wife/appellant.

(5) The learned Counsel has drawn
attention of this court towards the factum of
the wife/appellant having instituted Case
No. 240 of 2020 under Section 125 Cr.P.C.
seeking maintenance. It has also been
stated in para-27 of the objection by the
husband/ respondent that the only child
born out of the wedlock is in his custody
and he is spending about Rs.10,000/- per
month on his education, health and food. In
para-28, it has been stated that the suit
instituted by the plaintiff/appellant is
contrary to the object of Section 18 of the
Hindu Adoptions and Maintenance Act,
1956.
Furthermore,
as
the
plaintiff/appellant herself has instituted a
suit under Section 125 Cr.P.C. before the
Court seeking maintenance, the present suit
filed under Section 18 of the Hindu
Adoptions and Maintenance Act, 1956
ought to had been held non-maintainable
and rejected.

(6) On the contrary, in support of
her case, the wife/appellant (P.W.1) has
filed her oral depositions on affidavit
(marked as 17Ka2) and also filed her
brother's
depositions
(P.W.2-Pramod
Kumar) on affidavit (marked as 18Ka 2)
before the Family Court. Apart from it,
wife/appellant has also filed pay-slip of her
husband/respondent (marked as 14Ga/2)
along with the list of document (marked as
14Ga1) before the Family Court.

(7) The record of the learned
Family Court reveals that after filing of
objection
to
the
plaint,
the
husband/responded did not respond and as
such, vide order dated 07.12.2021, the
Family Court proceeded ex parte against
the husband/defendant/ respondent.

(8)

The
Family
Court,
on
appraising the depositions of appellant
P.W.1-Shashipal (appellant) and her brother
P.W.2-Pramod and also going through the
income of the defendant/husband and also
the fact that in a proceeding under Section
125 Cr.P.C., Rs.5000/- per month was
ordered to be paid to the appellant towards
maintenance, partly allowed the instant suit
ex parte vide order dated 16.11.2022 and
10 All. Shashi Pal Vs. Sachin Kumar Pal
909
directed the defendant/ husband/respondent
to pay Rs.1000/- per month from the date
of institution of the suit i.e. w.e.f.
27.10.2017 to his wife/appellant towards
maintenance.

(9) Not satisfied with the aforesaid
quantum of maintenance granted vide order
dated 16.11.2022, the wife/appellant has
filed the instant appeal.

(10) Learned Counsel representing
the wife/appellant has argued that the
Family Court had passed the impugned
order in a very cursory manner without
rightfully appreciating the conduct of the
respondent during the proceedings before
the Family Court. He submitted that the
version of the appellant-wife, who had
stepped into the witness box, as also the
version of the other witnesses examined by
her had remained unchallenged, as the
Family Court had proceeded ex parte
against the respondent because he did not
appear before the Family Court and,
therefore, there was no reason for the
Family Court not to believe the version of
the appellant-wife which was deposed by
her on oath. However, the Family Court,
without there being any evidence on record
adduced by the respondent, has only
granted a meagre amount of Rs.1000/- per
month as maintenance to the appellant by
means of the impugned order.

(11) The learned counsel for the
respondent, on the other hand, besides
reiterating the objections already taken by
the husband before the learned Family
Court, has also argued that the appellant
had made various complaints against the
respondent relating to his second marriage
before his employer-Northern Railway
Lucknow, which resulted in instituting an
inquiry
against
him,
leading
to
a
punishment under Rule 21 of the Railway
Services (Conduct) Rules, 1966, by virtue
of which the payment of the respondent has
been reduced from basic pay of Rs.32900/-
to Rs.19900/-. The learned counsel, in this
regard has drawn the attention of this court
to the punishment order dated 23.09.2020,
which is Annexure No.2 to the objection.
According to the learned counsel, after the
aforesaid punishment order, the respondent
is now getting total salary of Rs.23078/-
after deduction of Rs.11644/-. He submits
that the appellant's son is studying in 10th
class and his monthly fees is Rs.2000/- and
Tuition Fee is also Rs.2000/- per month and
daughter of the respondent is studying in
KG Nursery and her monthly fee is
Rs.1100/- per month and her vehicle
charges is also Rs.1000/- per month and as
such, total expenses of Rs.10,000/- per
month is being spent towards the education
of the children of the respondent. Apart
from it, according to learned Counsel, the
respondent's mother is aged about 64 years,
who due to her old age frequently falls ill
and as a huge amount also goes towards the
medical expenses of his mother and as a
result of which the respondent is unable to
bear the expenses from his total salary of
Rs.23078/- and as such has on several
occasion made a request to the department
to not deduct the Insurance amount. Acting
upon his request, from the month of June,
2024, the department started to pay the net
amount of Rs.34989/- per month. In this
backdrop, he prays that the salary being
earned by him is not even sufficient to meet
his own expenses as stated herein and thus
submitted that the amount of maintenance
of the appellant which have been passed by
the Family Court is adequate and proper.

(12) Having regard to the rival
submissions of the learned Counsel for the
parties and going through the record
910 INDIAN LAW REPORTS ALLAHABAD SERIES
available before this Court, the point of
consideration before us is twofold, (I)
whether suit filed by the appellant under
Section 18 of the Hindu Adoption and
Maintenance Act, 1956 is maintainable
especially in view of the order of
maintenance granted under Section 125 of
the Cr.P.C.?; and (ii) whether quantum of
maintenance granted by the Family Court
vide impugned order is adequate, if no,
then what reliefs ?

(13) As far as point no. (I) whether
suit filed by the appellant under Section 18
of the Hindu Adoption and Maintenance
Act, 1956 is maintainable specially in view
of the order of maintenance granted under
Section 125 of the Cr.P.C.?, is concerned,
we find from perusal of the impugned order
that this point has not been considered by
the Family Court while passing the
impugned order even though specific
pleadings in this regard at paras-28 and 29
of the objection, have been made by the
husband/respondent. But since specific plea
in this regard has been made by the
respondent, therefore, we deem it apt to
decide this issue in the present Appeal.

(14) It is not in dispute that the
appellant has sought maintenance by
initiating two separate proceedings i.e.
(i) under Section 125 Cr.P.C.; and (ii)
under Section 18 of the Hindu Adoption
and Maintenance Act, 1956. In the
proceedings under Section 125 Cr.P.C.,
the respondent/husband was directed to
pay
Rs.5000/-
per
month
to
the
wife/appellant
vide
order
dated
21.05.2022. After passing this order of
maintenance, the Family Court, on
taking into consideration the quantum of
maintenance granted in the proceedings
under Section 125 Cr.P.C., has also
granted maintenance of Rs.1000/- per
month in the proceedings under Section
18 of the Act, 1956.

(15) Hon'ble the Supreme Court
in the case of Nagendrappa Natikar Vs.
Neelamma : (2014) 14 SCC 452 has
held that proceedings under Section 125
Cr.P.C. is summary in nature and
intended to provide a speedy remedy to
the wife and any order passed under
Section 125 Cr.P.C. by compromise or
otherwise cannot foreclose the remedy
available to a wife under Section 18 (2)
of the Hindu Adoption and Maintenance
Act, 1956.

(16) Later on, the Apex Court in
its celebrated judgment in Rajnesh v.
Neha and Another : (2021) 2 SCC 324
has laid down comprehensive guidelines
pertaining to overlapping jurisdiction
among courts when concurrent remedies
for grant of maintenance are available
under the Special Marriage Act, 1954,
Section 125 Cr.P.C., the Protection of
Women from Domestic Violence Act,
2005, Hindu Marriage Act, 1955 and
Hindu Adoptions and Maintenance Act,
1956, and Criteria for determining
quantum of maintenance, date from
which maintenance is to be awarded,
enforcement of orders of maintenance
including fixing payment of interim
maintenance. The relevant directions
contained in Rajnesh (supra) reads as
under :-

"Directions
on
overlapping jurisdictions
It is well settled that a wife
can make a claim for maintenance
under
different
statutes.
For
instance, there is no bar to seek
maintenance both under the D.V.
Act and Section 125 of the Cr.P.C.,
10 All. Shashi Pal Vs. Sachin Kumar Pal
911
or
under
H.M.A.
It
would,
however, be inequitable to direct
the husband to pay maintenance
under each of the proceedings,
independent of the relief granted in
a
previous
proceeding.
If
maintenance is awarded to the wife
in
a
previously
instituted
proceeding, she is under a legal
obligation to disclose the same in a
subsequent
proceeding
for
maintenance, which may be filed
under another enactment. While
deciding
the
quantum
of
maintenance in the subsequent
proceeding, the civil court/family
court shall take into account the
maintenance
awarded
in
any
previously instituted proceeding,
and determine the maintenance
payable to the claimant.
To overcome the issue of
overlapping
jurisdiction,
and
avoid conflicting orders being
passed in different proceedings,
we direct that in a subsequent
maintenance
proceeding,
the
applicant
shall
disclose
the
previous
maintenance
proceeding,
and
the
orders
passed therein, so that the Court
would take into consideration the
maintenance already awarded in
the previous proceeding, and
grant an adjustment or set-off of
the said amount. If the order
passed in the previous proceeding
requires any modification or
variation, the party would be
required to move the concerned
court
in
the
previous
proceeding."

(17) From perusal of the record of
the Family Court, we find that the appellant
has
filed
additional
affidavit
dated
17.10.2022, wherein at para-6, the factum
of granting maintenance under Section 125
Cr.P.C. has been narrated. Therefore, there
is full disclosure of the maintenance having
been awarded under section 125 of the Cr.
P.C. Thus, in view of the Rajneesh case (
mentioned supra), we are of the view that
the suit filed by the appellant under Section
18 of the Hindu Adoption and Maintenance
Act, 1956 was very much maintainable and
the Family Court has rightly entertained the
suit filed by the appellant. Point no.1 is
answered in affirmative in favour of the
appellant.

(18) Now, we come to the second
point i.e. whether quantum of maintenance
granted by the Family Court vide impugned
order is adequate, if no, then what reliefs ?

(19) Indeed, it is the sacrosanct
duty of the husband to provide financial
support to the wife and to the minor
children. The husband is required to earn
money even by physical labour, if he is an
able-bodied, and can not avoid his
obligation,
except
on
the
legally
permissible grounds mentioned in the
statute. In Chaturbhuj vs, Sita Bai :
(2008) 2 SCC 316, the Apex Court has held
that the object of maintenance proceedings
is not to punish a person for his past
neglect, but to prevent vagrancy and
destitution of a deserted wife, by providing
her food, clothing, and shelter by a speedy
remedy.

(20) In the instant case, the Family
Court had not only over-looked and
disregarded the aforesaid settled legal
position but has proceeded with the
proceedings in absolutely pervert manner.
The right of the respondent to crossexamine the witnesses of the appellant-
912 INDIAN LAW REPORTS ALLAHABAD SERIES
plaintiff was closed as he had failed to
appear before the Family Court. The
allegations made by the appellant-wife in
her evidence before the Court had remained
unchallenged. She had clearly stated as to
how she was harassed and subjected to
cruelty by the respondent, which had
constrained her to leave the matrimonial
home, and as to how the respondent had
failed and neglected to maintain her and
illegally entered into a second marriage and
is living now with the second wife and his
children. She had also stated that her father
is no more and she is living with her old
aged mother, who has also having no
source of income.

(21) This Court finds that even if
this meagre amount of Rs. 1000/-, when
added to the maintenance amount as granted
under Section 125 Cr.P.C to the appellant, the
said amount cannot be termed as adequate or
commensurate to maintain a living in today's
society. The Court should not forget that any
maintenance awarded should not be merely
ornamental or defeat the very purpose for
which it has been provided for under the
statute. The learned Family Court was
expected to be more realistic and pragmatic
in awarding the maintenance amount and
should not be oblivious to the daily basic
needs required for sustaining in today's
world, keeping in mind that the sheer object
of granting maintenance under any law is to
afford the weaker party with sufficient means
to sustain herself/himself.

(22) This Court would have
remanded the matter back to the Family
Court for considering it afresh, however
considering the fact that the matter has
been pending before this Court since 2023,
and remanding would further delay the
proceedings, this Court deems it proper to
pass this order.
(23) As observed herein above, the
fulcrum of the argument of respondent rests
on the hinge that he gets a net amount of
Rs.34989/- from salary w.e.f. June, 2024 as
is evident from salary slip of respondenthusband enclosed as Annexure No.5 to the
objection, out of which Rs.10,000/- per
month is being spent on the children and,
therefore, according to him, the salary is
not sufficient to enhance the amount of
maintenance of the appellant which has
been passed by the Family Court. However,
this plea is not acceptable in the facts of the
case. Even after taking into consideration
the photocopies of the documents filed in
respect of the expenses incurred by the
respondent regarding education of the
daughter, the monthly tuition fee is only
Rs.1100/- as per the said document. The
respondent being an able bodied man, he is
obliged to earn by legitimate means and
maintain his wife.

(24) Having regard to the evidence
of the appellant-wife before the Family
Court and having regard to the other
evidence on record, this Court has no
hesitation in holding that though the
respondent had sufficient source of income
and was able-bodied, had failed and
neglected to maintain the appellant.

(25) Considering the totality of
facts and circumstances, appellant shall pay
Rs.1000/- per month as maintenance from
the date of filing of the suit till May, 2024
and keeping in view that the total salary of
the respondent/husband enhanced to about
Rs.34,989/- per month w.e.f. June, 2024,
we deem it proper to enhance the
maintenance amount from Rs. 1000/-
awarded by the learned Family Court to
Rs.4000/- per month w.e.f. June, 2024 to
the appellant-wife, which shall be in
addition to the maintenance allowance of
10 All. Pawan Kumar Pandey Vs. Sudha
913
Rs. 5,000/- granted by the trial Court under
Section 125 Cr.P.C. Point No.2 is decided
accordingly.

(26) In view of the aforesaid, it is
directed that the respondent/ husband shall
pay maintenance amount of Rs. Rs. 1000/-
per month from the date of filing of the suit
till May, 2024 and shall pay Rs. 4000/- per
month to the appellant-wife w.e.f. June,
2024. The entire amount of arrears shall be
deposited by the respondent in the Family
Court within eight weeks from today, after
adjusting the amount, if any, already paid
or deposited by him.

(27) The impugned order dated
16.11.2022 is modified to the aforesaid
extent.

(28) The appeal stands allowed in
part accordingly.
----------
(2024) 10 ILRA 913
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 24.10.2024

BEFORE

THE HON'BLE RAJAN ROY, J.
THE HON'BLE OM PRAKASH SHUKLA, J.

First Appeal No. 174 of 2023

Pawan Kumar Pandey ...Appellant
Versus
Sudha ...Respondent

Counsel for the Appellant:
Bhavini Upadhyay, Pankaj Kumar Tripathi,
Sandhya Dubey

Counsel for the Respondent:
--

Civil Law- Appeal under Section 19 (1) of
Family Courts Act, 1984 read with Section
28 of Hindu Marriage Act, 1955 and
Section 96 of the Code of Civil Procedure,
1908- against dismisaal Hindu Marriage
Act, 1955 - Section 13(1) (iii) - Divorce
- Cruelty and desertion - Continuous
separation for over a decade - No
physical cohabitation - Wife's failure to
contest proceedings despite service -
Held, prolonged separation, coupled with
non-performance of marital obligations
and absence of opposition to appeal,
amounts to mental cruelty - Matrimonial
bond ruptured beyond repair - Family
Court's refusal to grant divorce reversed
in part - Judgment of Family Court partly
set aside- Decree of divorce granted.

H.M. Act, 1955 - Section 13(1)(iii) -
Unsoundness of mind - Schizophrenia -
Allegation
of
mental
disorder
not
sufficiently proved - Mere diagnosis
without
cogent
medical
evidence
of
severity
and
functional
incapacity
insufficient to dissolve marriage - Law
requires proof of degree and intensity of
mental disorder - Family Court's finding
upheld- Appeal allowed. (Para 8, 10, 13,
17, and 18)

HELD:
In the present case, the appellant is working in
Uttar Pradesh Fire Department. He got married
to the respondent on 08.06.2003. Apparently,
both the parties belong to reputed families. The
respondent/wife has lodged F.I.R. against the
plaintiff/appellant and his family members. In
cross
examination,
D.W.1/respondent-wife
herself has St.d that after marriage, parties
cohabitated only for a brief period and that she
has been residing separately since 2012. Now, a
period of more than a decade has elapsed since
the parties started living separately. (Para 8)

Moreso, the respondent is not contesting the
appeal in spite of service on notice having been
issued by this Court. She has not come forward
to oppose the pleas of the appellant. This shows
her disinclination to live with the appellant in
spite of the stand taken by him. Thus, the
feeling
of
deep
anguish,
disappointment,
frustration of the appellant caused by the
conduct of respondent for a long time may also
lead to mental cruelty and the long period of