# Sri Vikas Pandey v. Smt. Vandita Gautam

- **Citation:** (2012) 3 ILRA 1422
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2012-10-08
- **Bench:** Dinesh Gupta
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/sri-vikas-pandey-v-smt-vandita-gautam-42443
- **Pages:** 7

## Headnote

Hindu Marriage Act, 1955-Section-18Maintenance-whether a divorced wifepossessing much better financial and
academic position than the husbandcompetent to maintain herself-entitled
to claim maintenance? held-"No"

Held: Para-18

The word 'unable' means that a person is
not able to do what he is supposed to do.
In the present matter, it is not a case
that the wife is an illiterate lady or is not
in a position to do any job, on the
contrary the wife is highly educated
particularly more than the husband and
3 All] Sri Vikas Pandey V. Smt. Vandita Gautam

1423
is clearly in a position to earn more. This
also
disentitles
her
to
get
any
maintenance. Therefore, in view of the
legal and factual aspects of the matter,
plaintiff-respondent is not entitled to any
maintenance
and
the
decree
of
maintenance awarded by the trial court
is liable to be set aside and the appeal
deserves to be allowed.
Case law discussed:
(1993) 3 Supreme Court Cases 406; AIR
Bombay 2005 page 180

## Text

1422 INDIAN LAW REPORTS ALLAHABAD SERIES [2012

and adequate that the Collector may also
determine rent or damages for use of the
property to each of the land owner is
entitled
while
determining
the
compensation amount payable to the land
owner for the acquisition for the property.
As the matter is too old hence it will not be
proper to remand the matter for such
determination. Hence we are of the view
that Collector be directed and is so directed
to determine such amount as compensation
for use and occupation of the land from the
date of taking possession till the date of
notification i.e. 01.07.1971 till 16.02.1997,
within a period of one year from producing
a certified copy of this order. If the
Collector fails to do so within that period,
then it will be open to the claimants to
resort to appropriate legal action/remedy.

28. As of discussion above, all four
appeals are liable to be partly allowed.

29. F.A. No. 961 of 1999 and F.A.
No. 963 of 1999 are partly allowed. The
claimants
shall
be
entitled
for
a
compensation of Rs. 1,500/- per sq. yard
being the market value of the acquired
land. The claimants shall be further entitled
for 30% solatium on the enhanced amount.

30. Claimants are further awarded
9% interest on excess amount that has been
found due by this Court and that has not
been paid by the S.L.A.O., Kanpur Nagar,
from
the
date
of
notification
i.e.
16.02.1997 till the period of one year and
after the expiry of the above period,
claimants are further entitled for 15% p.a.
interest on the above excess sum which has
been found due by this court and which has
not been awarded by the S.L.A.O. Kanpur
Nagar till the date of payment under
section 28 of Land Acquisition Act.

31. F.A. No. 966 of 1999 and F.A.
No. 967 of 1999 are also partly allowed.
The 12% additional amount of the market
value from 01.07.1971 to 16.02.1997 i.e.
from the date of taking possession to the
date of notification which has been
allowed
by
the
reference
court
is
disallowed and instead, claimants are
entitled to rent/damages as determined by
Collector Kanpur Nagar, as directed above.
---------
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 08.10.2012

BEFORE
THE HON'BLE DINESH GUPTA, J.

FIRST APPEAL No. - 1006 of 2000

Sri Vikas Pandey

 ...Applicant
Versus
Smt. Vandita Gautam
 ...Respondents

Counsel for the Petitioner:
Sri Rajesh Tandon
Sri Komal Mehrotra
Sri Manoj Kumar Sharma
Sri Some Narayan Mishra

Counsel for the Respondents:
Sri P.K. Jain

Hindu Marriage Act, 1955-Section-18Maintenance-whether a divorced wifepossessing much better financial and
academic position than the husbandcompetent to maintain herself-entitled
to claim maintenance? held-"No"

Held: Para-18

The word 'unable' means that a person is
not able to do what he is supposed to do.
In the present matter, it is not a case
that the wife is an illiterate lady or is not
in a position to do any job, on the
contrary the wife is highly educated
particularly more than the husband and
3 All] Sri Vikas Pandey V. Smt. Vandita Gautam

1423
is clearly in a position to earn more. This
also
disentitles
her
to
get
any
maintenance. Therefore, in view of the
legal and factual aspects of the matter,
plaintiff-respondent is not entitled to any
maintenance
and
the
decree
of
maintenance awarded by the trial court
is liable to be set aside and the appeal
deserves to be allowed.
Case law discussed:
(1993) 3 Supreme Court Cases 406; AIR
Bombay 2005 page 180

(Delivered by Hon'ble Dinesh Gupta, J.)

1. This appeal has been preferred by
the appellant against the judgment and
decree dated 30.11.2000 passed by Sri
V.K.Jaiswal, III Additional District Judge,
Muzaffar Nagar in Original Suit No.351
of 1997 Smt. Vandita Gautam vs. Sri
Vikas Pandey.

2. The brief facts giving rise to this
appeal are that the plaintiff-respondent
filed Original Suit No.351 of 1997 against
the defendant-appellant u/s. 18 of the
Hindu Adoption and Maintenance Act ( in
brief Act) with the allegations that -

•
The
plaintiff-respondent
was
married on 21.6.1991 with the
defendant-appellant
at
his
residential house at Dehradun.
Her family members spent an
amount of Rs. 4, 50,000/- in the
marriage and sufficient articles,
gift and dowry was given at the
time of the marriage, but the
family members of the defendantappellant were not happy with the
amount spent in the marriage and
further demanded a car in dowry.
However, the plaintiff-respondent
explained
to
the
defendantappellant and his family members
regarding financial status of her
family that they were not in a
position to provide a car.

•
When
the
demand
of
the
defendant-appellant
and
his
family members were not met,
they threw the plaintiff-appellant
out of their house and sent the
plaintiff-respondent
to
her
parental house at Meerut and at
present she is living with her
mother at Meerut. All the articles,
clothes, ornaments etc. given by
the family
members of the
plaintiff-appellant were kept by
the defendant-appellant and his
family members.

•
In November, 1996 the plaintiffrespondent came to know that the
defendant-appellant obtained an
ex-parte decree from the court of
Civil Judge, Dehradun and an
application
to
restore
the
proceedings has already been
moved by the plaintiff-respondent
which is pending.

•
The defendant-appellant has not
taken
care
of
the
plaintiffrespondent since 27.6.1991 and
has not given her any amount of
maintenance and the plaintiffrespondent is living with her
widowed mother. Though the
plaintiff-respondent is a literate
lady having no means to maintain
herself, she is not doing any
service and factually she is a
burden on her parents.
•
The defendant-appellant is a
senior Geologist in Oil and
Natural Gas Commission and at
present he is posted in District-
Shiv Sagar (Assam) and is getting
1424 INDIAN LAW REPORTS ALLAHABAD SERIES [2012

Rs.15000/- per month as salary
and he can easily pay a sum of
Rs.5000/-to his wife to maintain
herself.

•
The plaintiff-respondent is also
entitled to get the maintenance of
Rs.5000/- per month which the
defendant-appellant is liable to
pay.

•
The plaintiff-appellant has also
come to know that the defendantappellant has performed second
marriage with some lady named
Kalpana. However, the plaintiffrespondent reserved her right to
file a civil suit in this regard.

3. The defendant-appellant filed
written statement and denied all the
allegations made in the plaint and
submitted that-

•
The
marriage
between
the
defendant-appellant and plaintiffrespondent was solemnized on
21.6.1991 at Meerut according to
Hindu rites and rituals. It was also
admitted that after the marriage
the plaintiff-respondent lived with
him
for
certain
period
at
Dehradun.
However,
it
was
denied that Rs.4.5 lacs was spent
in the marriage. It was also denied
that the plaintiff-respondent was
thrown out of the house by the
defendant-appellant without any
clothes and ornaments. In fact
whatever ornaments were given
in the marriage the same was
taken away by the plaintiffappellant.

•
It was also denied that the
defendant-appellant or his family
member
ever
demanded
any
dowry or ill-treated the plaintiffrespondent. The real facts are that
soon after the marriage the
behaviour
of
the
plaintiffrespondent with the defendantappellant and his family members
was not proper and she left the
house of her own free will and is
living with her mother at Meerut.

•
The defendant-appellant filed a
suit for divorce and the plaintiffrespondent after receipt of notice
appeared before the court but later
on deliberately absented herself
and the court was compelled to
pass a decree of divorce between
the
parties.
The
plaintiffrespondent did not file any appeal
against the decree of divorce
dated 26.11.1993.

•
The allegation in the plaint that
the plaintiff is living with her
mother, she is not doing any job
and is not having any means is
wrong. In fact, the plaintiffrespondent is a highly educated
lady with M.A. in English and
B.Ed.and is at present also doing
Ph.D. and she is a teacher earning
at least Rs.5000/- per month from
tuition and the job of a teacher.

•
It is not denied that the defendantappellant is a Geologist in Oil and
Natural
Gas
Commission.
However, he gets only Rs.10000/-
as monthly pay and after the
decree of divorce he has already
married one Alpana and at present
is living in Assam with his wife
and one daughter. The demand of
3 All] Sri Vikas Pandey V. Smt. Vandita Gautam

1425
Rs.5000/-
per
month
as
maintenance is wholly excessive.
In fact the behaviour of the
plaintiff-respondent
with
the
defendant-appellant soon after the
marriage was very cruel and
unnatural and because of this the
defendant-appellant
was
compelled to file a suit for
divorce which was decreed and
the plaintiff-respondent preferred
no appeal against the same and
the suit is liable to be dismissed.

4. On the pleading of the parties, the
trial court framed the following issues:-

•
Whether the plaintiff has no
sufficient means to maintain
herself?
•
Whether the defendant neglected
his
wife
in
her
proper
maintenance?
•
To what relief the plaintiff
entitled? And
•
Whether the plaintiff is entitled to
any amount of maintenance?

5. In support of his allegation the
plaintiff-respondent examined herself as
P.W.1while
the
defendant-appellant
examined himself as D.W.1 and also filed
some documentary evidence including
some letters written by the mother of the
plaintiff-respondent.

6. After hearing the parties and
considering the evidence on record, the
trial court decreed the suit of the plaintiff
and granted maintenance of Rs.3000/- per
month to her.

7. Feeling aggrieved, the defendantappellant has filed this appeal.

8. At the time of hearing, learned
counsel for the parties were present.
However, Sri P.K.Jain, learned counsel
for the plaintiff-respondent submitted that
he tried his level best to contact the
plaintiff-respondent but he did not receive
any response from her. In this view of the
matter, the court has been left with no
option but to decide the appeal ex-parte.

9. Learned counsel for the defendantappellant submitted that -

•
The trial court has decreed the
suit
without
taking
into
consideration
the
provisions
mentioned in clause (a) to (g) of
Section 18(2) of the Act.

•
The plaintiff-respondent was not
entitled to any maintenance u/s.
18 of the Act after decree of
divorce.

•
The defendant-appellant was not
guilty of desertion, cruelty and
living with another wife which is
mandatory
for
grant
of
maintenance u/s. 18 of the Act.

•
The divorce was granted only on
the ground that the plaintiffrespondent was not able to
maintain cordial relation with the
family members of the defendantappellant.

•
In order to grant a decree u/s. 18
of the Act, it was mandatory for
the
plaintiff
to
prove
the
ingredients contained in clauses
(a) to (g) of sub section(2) of
Section 18 of the Act.

•
The capacity to earn by the
1426 INDIAN LAW REPORTS ALLAHABAD SERIES [2012

plaintiff-respondent
has
been
fully ignored by the trial court
while granting maintenance to
her.

•
The
defendant-appellant
has
proved by documentary evidence
that the plaintiff-respondent being
a literate lady and doing job of a
teacher and earning more than
Rs.5000/- per month was not
entitled to the maintenance.

9. Even at the appellate stage by
means of supplementary affidavit the
defendant-appellant has filed documents
to show that the plaintiff-respondent is
continuously doing job as lecturer since
the
year
2000
in
Radha
Govind
Engineering College, Grah Road, Meerut
in the Department of Humanities and
thereafter she is employed in Moti Lal
Nehru College, University of Delhi, South
Campus, Delhi in English department and
at no point of time she had got less than
Rs.10,000/- per month as salary which is
more than sufficient to maintain herself.
She is highly educated being M.A. in
English with B.Ed. and also having
Doctorate
degree.
Learned
counsel
referred to the statement of the plaintiffrespondent in which she admitted that at
the time of giving that statement she was
doing Ph.D.

10. Learned counsel for the
defendant-appellant further submitted that
the trial court has wrongly considered the
legal position that even a divorced lady is
also entitled to maintenance u/s. 18 of the
Act and has wrongly relied on the
judgment in the case of Vitthal Mangal
Das Patil vs. Mayaben Patel (1996) DMC
432. The said authority was not at all
applicable in the present case. In that case
the court held that u/s. 25 of the Hindu
Marriage Act the word 'wife' includes a
divorced wife and putting the same
analogy to Section 18 of the Act the court
presumed that it also included 'divorcee
wife'.

11. Learned counsel for the
appellant further argued that the trial court
has also taken a wrong view of the fact
that the plaintiff-respondent has already
applied for setting aside the ex-parte
decree of divorce while in fact after the
decree of divorce although an application
being Misc. Case No.201/1996 was
moved by the plaintiff-respondent to
restore the original suit but the same was
rejected vide order dated 9.9.1985 which
clearly shows that the divorce decree is
still maintained and has not been set aside
and the plaintiff-respondent is admittedly
a divorcee and is not entitled to any
maintenance u/s. 18 of the Act.

12. Learned counsel for the
appellant relied upon Chand Dhawan
(Smt) Vs. Jawahar Lal Dhawan (1993)
3 Supreme Court Cases 406 and
submitted that the apex court clearly held
that a divorcee cannot get maintenance
u/s. 18 of the Hindu Marriage Act. In a
recent case Mrs. Manisha Sandeep
Gade Vs. Sandeep Vinayak Gade, AIR
Bombay 2005 page 180 the Bombay
High Court also took the same view and
clearly held that after grant of divorce, the
wife is not entitled to maintenance.

13. Lastly learned counsel argued
that since the decree of divorce has not
been set aside as yet, the plaintiffrespondent
is
not
entitled
to
any
maintenance u/s. 18 of the Act and the
trial court has wrongly decreed the suit.
3 All] Sri Vikas Pandey V. Smt. Vandita Gautam

1427

14. So far as legal position is
concerned, admittedly a divorce decree
was passed between the parties and an
application to set aside that decree was
also rejected. There is no documentary
evidence produced by the plaintiffrespondent to show that the said divorce
decree has been set aside or any
proceeding is pending to set aside that
divorce decree. Hence, for all purposes
the plaintiff-respondent is a divorcee and
according to Section 18 of the Act the
word 'wife' does not include a 'divorcee
wife' and as such she is not entitled to any
maintenance. The case laws fully supports
the contention of learned counsel for the
defendant-appellant.

15. In Mrs. Manisha Sandeep Gode
(supra) it was clearly held that the trial
court was equally right in rejecting the
petition for maintenance u/s. 18 of the
Act. This was because once the divorce
was granted the petition u/s. 18 of that
Act could not be maintained.

16. So far as the case law relied on
by the trial court Vitthal Mangal Das is
concerned, I am of the view that the trial
court has taken a wrong approach in
interpreting
the
said
authority
and
wrongly came to the conclusion that the
word 'wife' mentioned in Section 25 of the
Hindu Marriage Act is similar to the word
'wife' mentioned in Section 18 of the Act.

17. So far as the merit of the appeal
is concerned, the appellant has proved by
documentary evidence that the plaintiffrespondent being a highly educated lady
and engaged as lecturer in different
colleges at different time, was receiving
salary much more than the appellant.

18. The Bombay High Court has
also held that the wife is not entitled to
maintenance
when
it
was
clearly
established that the income of the wife
was better than the husband. It is also
important to mention here that Section 18
of the Act or Section 25 of the Hindu
Marriage Act deals with the situation
where the wife is unable to maintain
herself. The word 'unable' means that a
person is not able to do what he is
supposed to do. In the present matter, it is
not a case that the wife is an illiterate lady
or is not in a position to do any job, on the
contrary the wife is highly educated
particularly more than the husband and is
clearly in a position to earn more. This
also
disentitles
her
to
get
any
maintenance. Therefore, in view of the
legal and factual aspects of the matter,
plaintiff-respondent is not entitled to any
maintenance
and
the
decree
of
maintenance awarded by the trial court is
liable to be set aside and the appeal
deserves to be allowed.

19. In the result, the appeal succeeds
and is allowed. The judgment and decree
dated 30.11.2000 passed by III Additional
District
Judge,
Muzaffar
Nagar
in
Original Suit No.351 of 1997 Smt.
Vandita Gautam vs. Sri Vikas Pandey is
hereby set aside.

20. There shall be no order as to
costs.
---------
1428 INDIAN LAW REPORTS ALLAHABAD SERIES [2012

APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 26.11.2012

BEFORE
THE HON'BLE ARVIND KUMAR TRIPATHI (II), J.

Criminal Appeal No. - 1097 of 2005

Malhoo and another

...Applicant
Versus
The Iind Addl.Session Judge,Sultanpur.&
Another

 ...Respondents

Counsel for the Petitioner:
Sri Hrish Chandra

Counsel for the Respondents:
Govt. Advocate

Code of Criminal Procedure-Section 446recovery
of
sureties
amount-without
recording
satisfaction
for
forfeiture
of
sureties amount-without show cause notice
before passing recovery order-held-order not
sustainable-quashed.

Held: Para-6

A perusal of the impugned order again
reveals that no show cause notice to the
sureties was issued, directing them to
show cause as to why their sureties
amount be not forfeited. Apex Court in
the case of Ghulam Mehdi Vs. State of
Rajasthan reported in A.I.R. 1960 SC
1185 and this Court in the case of
Mahmood Hasan Vs. State reported in
1979 Cr.L.J. 1439 has held that Section
446 deals with two stages. The first
stage requires the ground of satisfaction
to
be
recorded
by
the
Judge
or
Magistrate
concerned
for
ordering
forfeiture
and
after
recording
such
forfeiture show cause is to be issued. An
order for recovery can be made only on
fulfilling the two steps contemplated by
Section 446. Where no opportunity has
been given to show cause why he should
not be made to pay, the proceedings
cannot be said to be in accordance of law
and should be quashed.
Case Law discussed:
A.I.R. 1960 SC 1185; 1979 Cr.L.J. 1439

(Delivered by Hon'ble Arvind Kumar Tripathi (II), J.)

1. List has been revised.

2. None appeared for the appellants
Malhoo and Siraj Ahmad. Learned AGA is
present.

3. Heard learned AGA and gone through
the record.

4. This appeal has been filed against the order
dated 2.8.2005 passed by the Additional Sessions
Judge, Court No. 2, Sultanpur, in a proceeding under
Section 446 Cr.P.C., by which bail bond of accused
were forfeited and sureties were directed to deposit
the security amount of Rs. 25,000/- of accused Raj
Bahadur in Session Trial No. 251 A/95, under
Section 302 I.P.C. of Police Station Kotwali Dehat,
District Sultanpur.

5. A perusal of the impugned order,
which is on record, reveals that the sureties
were seeking time to produce the accused but
they were not able to produce the accused
persons in the court so in that continuation, on
2.8.2005, they again moved an application for
time to produce accused persons. This
application was rejected and warrant of
realisation was issued against sureties Malhoo
and Siraj Ahmad.

6. A perusal of the impugned order
again reveals that no show cause notice to the
sureties was issued, directing them to show
cause as to why their sureties amount be not
forfeited. Apex Court in the case of Ghulam
Mehdi Vs. State of Rajasthan reported in
A.I.R. 1960 SC 1185 and this Court in the
case of Mahmood Hasan Vs. State
reported