MANU/DE/3432/2018

IN THE HIGH COURT OF DELHI

MAT. APP. (F.C.) 61/2016
Decided On: 20.09.2018
Appellants: Poonam Bhardwaj
Vs.
Respondent: Ashish Abrol
Hon'ble Judges/Coram:
Hima Kohli and V. Kameswar Rao, JJ.
Counsels:
For Appellant/Petitioner/Plaintiff: Jawahar Raja and Abhey Narula, Advs.
For Respondents/Defendant: Sharat Kapoor, Shrey Kumar, Heena Panchoori, Advs. and
Party-in-Person
JUDGMENT
V. Kameswar Rao, J.
REV. PET. 249/2017
1 . This Review Petition has been filed by Poonam Bharadwaj, (appellant in the MAT
Appeal (FC) 61/2016), seeking review of the order dated February 27, 2017, passed on
an application filed by the respondent, being CM. No. 7725/2017. The MAT Appeal was
directed against the order of interim maintenance dated March 18, 2016, passed by the
learned Family Court, Saket on an application under Section 24 of the Hindu Marriage
Act, filed by the appellant/petitioner herein awarding an interim maintenance at '
25,000/- per month from the date of the order. It is the case of the appellant/petitioner
that the appeal was filed both, on the quantum of maintenance awarded and also
challenging the decision to grant maintenance from the date of passing of the order
instead of the date of moving the application. The appeal was taken up for the first time
on April 27, 2016 when this Court had directed the respondent to remain present on the
next date of hearing, i.e., on May 2, 2016.
2. On May 2, 2016, this Court had passed a detail order, paras 3 to 5 whereof reads as
under:
"3. It is trite that orders of maintenance are normally passed w.e.f. the date of
making of the application unless the court finds that the applicant was
employed or not needing the maintenance for any period during the pendency
of the application. There is no such finding in the present case. Therefore, the
maintenance payable to the appellant was required to have been directed to be
paid w.e.f. the date of the application. Without opining on the merits of the
appellant's prayer for enhancement of the maintenance awarded, if computed
on the basis of the amount awarded w.e.f. the date of the application, i.e. for
the period between January, 2014 to 18th March, 2016 (both months inclusive),
the maintenance is liable to be paid for a period of 27 months which comes to a
total of Rs. 6,75,000/-.

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 4 . The maintenance for the months of April, 2016 and May, 2016 is also due
and payable.
5. Before proceeding in the matter any further, we direct as follows:
(i) The appellant would be entitled to payment of maintenance w.e.f.
the date of her Section 24 application under the Hindu Marriage Act,
1955.
(ii) For the time being, without prejudice to the respective rights and
contentions of the parties on the aspect of quantum, the respondent is
directed to pay the amount of Rs. 6,75,000/- (as computed in para 3
above) within a period of two weeks from today.
(iii) The appellant shall pay the maintenance for the month of April,
2016 and May, 2016 by RTGS mode of transfer into the Saving Bank
A/c No. 52310137027 maintained by the appellant in Standard
Chartered Bank within a period of seven days from today.
(iv) The litigation expenses awarded by the Family Court shall also be
paid by the same mode within one week from today.
(v) The payment and acceptance of the above amounts are without
prejudice to the respective rights and contentions of both sides.
List on 11th May, 2016 at 3:00 pm when the parties shall also remain
present."
3. It may be noted that even the respondent herein had preferred an appeal against the
order of the learned Family Court dated March 18, 2016, registered as MAT Appeal
(F.C.) No. 73/2016 on the ground that the appellant/petitioner is not entitled to any
maintenance. The respondent had also filed a Review Petition being 234/2016 against
the captioned order dated May 2, 2016, alleging therein that the said order was
improper, was legally untenable and had been passed without application of mind. The
said Review Petition was subsequently withdrawn by the respondent on May 11, 2016.
On the same day itself, notice was issued on MAT. Appeal (FC) 61/2016, filed by the
appellant/petitioner. The respondent had sought leave of the court to pay the arrears of
maintenance to the appellant/petitioner in six equal monthly installments, which we
have been told has not been complied with till date.
4. On August 17, 2016, both the Appeals filed by the appellant/petitioner & respondent
were dismissed and it was held that there was no reason to interfere with the impugned
order passed by the learned Family Court granting interim maintenance of ' 25,000/- per
month to the appellant/petitioner. It is the case of the appellant/petitioner that while
passing the order dated August 17, 2016, the court did not take note of the order dated
May 2, 2016 inasmuch as the maintenance should have been awarded from the date of
moving the application. It is also the case of the appellant/petitioner that the order
dated August 17, 2016, was passed without appreciating the documents/pleadings and
the grounds raised by her in the Appeal, including the ground that the maintenance had
wrongly been granted from the date of order, without considering the ground raised by
the appellant/petitioner to the effect that the same was payable from the date of filing
of the application.
5 . It has been averred by the appellant/petitioner in the Review Petition that without

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prejudice to her right to assail the order dated August 17, 2016, she had filed an
application, being CM. No. 36960/2016 submitting inter alia that the order dated August
17, 2016 had failed to note the earlier order dated May 2, 2016 and accordingly, a
clarification was sought vide the said application that the order dated August 17, 2016
be clarified to the extent that the interim maintenance @ ' 25,000/- per month shall be
payable from the date of the application. The said CM was disposed of by this Court on
October 5, 2016 by stating as under:
"In view of the order dated May 2, 2016, which has attained finality, no
clarification is warranted. The amount determined under Section 24 of the
Hindu Marriage Act, 1955 shall be payable as per the said order dated May 2,
2016."
6. It is noted that on February 22, 2017, the respondent filed an application being CM.
No. 7725/2017 under Section 152, read with Sections 153 and 151 of the CPC for
amendment of the order dated October 5, 2016. It was the case of the respondent that
the order dated October 5, 2016 was passed in his absence. The said application filed
by the respondent was taken up for hearing on February 27, 2017, when this Court had
dismissed CM. No. 36960/2016 moved by the appellant and in CM. No. 7725/2017, the
order dated October 5, 2016 was corrected, by stating as under:
"In view of the order dated March 18, 2016, which has attained finality, no
clarification is warranted. The amount determined under Section 24 of the
Hindu Marriage Act, 1955 shall be payable as per the said order dated March
18, 2016.
7 . Being aggrieved by the aforesaid orders dated August 17, 2016 and February 27,
2017, the appellant/petitioner filed an SLP (Civil) No. 7829/2017 before the Supreme
Court. Vide order dated April 17, 2017, the Supreme Court did not entertain the SLP but
at the request of the learned counsel for the appellant/petitioner asking for leave to file
a review application, the Supreme Court granted leave.
8. It is the submission of Mr. Jawahar Raja, learned counsel for the appellant/petitioner
that this Court has erred in upholding the order of the learned Family Court granting
maintenance at ' 25,000/- per month from the date of passing of the order, by
overlooking the settled position of law that maintenance has to be granted from the
date of the application unless, the appellant/petitioner was found to be working/earning
at the relevant time. According to him, the impugned order dated February 27, 2017 is
erroneous as the Court had dismissed CM. No. 36960/2016 when the same had already
been considered and an order passed on October 5, 2016.
9 . Learned counsel for the appellant/petitioner further stated that the Court had erred
while considering the application of the respondent being CM. No. 7725/2017 and
holding that the order dated October 5, 2016 required correction. According to Mr. Raja,
the earlier order dated May 2, 2016 holding that the appellant/petitioner is entitled to
maintenance, had become final between the parties as no ground had been shown by
the respondent to disentitle her from the said relief and the said order in any event, was
not challenged/appealed against by the respondent. He thus justified the order passed
by this Court on October 5, 2016. According to Mr. Raja, there is no finding by this
Court in the order dated August 17, 2016, on the aspect as to whether the
appellant/petitioner is not entitled to maintenance from the date of the application. In
the absence of any finding, the appellant/petitioner had to file CM. No. 36960/2016 on
which an order was rightly passed on October 5, 2016. Otherwise, the grievance of the

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appellant/petitioner in her appeal would have remained unaddressed as apart from the
quantum of maintenance, it was her plea that she was entitled to maintenance from the
date of the application. Learned counsel would rely upon the judgments of the Supreme
Court in the case of the Jaiminiben Hirenbhai Vyas v. Hirenbhai Rameshchandra Vyas
MANU/SC/1046/2014 : (2015) 2 SCC 385 and Vinod Kumar Jolly v. Sunita Jolly and
Anr. MANU/DE/9345/2007 : I (2008) DMC 371 to justify the above submission.
1 0 . On the other hand, Mr. Sharat Kapoor, learned counsel appearing for the
respondent would justify the order dated February 27, 2017. He submitted that the
application for review filed by the appellant/petitioner is not maintainable as it is
hopelessly time barred and not tenable in law. He also stated that the review petition
seeking recall of the order dated February 27, 2017 shall only be maintainable if there
is an error apparent on the face of the record. He states that Order XLVII Rule 1 of the
CPC provides that a review is maintainable only if there is a discovery of new and
important matter or evidence which, after the exercise of due diligence, was not within
the knowledge of the aggrieved or could not be produced by him at the time when the
decree was passed, which is not the case here. Even otherwise, it was argued that the
order dated March 18, 2016 passed by the learned Family Court having attained finality
on the passing of the order dated August 17, 2016 in MAT. Appeal (F.C.) 61/2016 and
MAT. Appeal (F.C.) 73/2016, as such, the review petition is liable to dismissed.
11. On merits, it was contended on behalf of respondent that there are circumstances
which justified the grant of maintenance only from the date of passing of the order as
the appellant/petitioner had been working before the marriage on a handsome salary
and during the period when the parties had lived together as husband and wife as also
after their separation. He submitted that there is evidence on the record of her earnings
and expenditure in these tenures, thus evidencing her income during the period of the
separation and during the pendency of the Divorce Petition and her application for
maintenance. Learned counsel thus seeks dismissal of the review petition. He relied
upon the judgment of the Supreme Court in the case of Smt. Jasbir Kaur Sehgal v. the
District Judge Dehradun and Ors. MANU/SC/0835/1997 : 1997 (5) SCALE in support of
his submissions.
12. Having heard the learned counsel for the parties and on noting the aforesaid facts,
the only issue which arises for our consideration is whether the order dated February
27, 2017 needs to be reviewed.
13. First of all, we shall deal with the submission of Mr. Kapoor, learned counsel for the
respondent that the Review Petition is barred by time. Suffice it to state, that the Review
Petition has been filed by the appellant/petitioner on May 17, 2017 pursuant to the
liberty granted to her by the Supreme Court on April 17, 2017. The liberty granted was
unconditional. Therefore, the issue of limitation would not arise. On merits, there is no
dispute that the two appeals filed by the parties herein against the grant of interim
maintenance by the learned Family Court vide order dated February 27, 2017 were
dismissed by the Division Bench. One of the grounds of challenge by the
appellant/petitioner to the order dated March 18, 2016 was that the interim maintenance
granted by the Family Court must relate back to the date of the application. It is not
denied by Mr. Kapoor that there is no finding in the order dated August 17, 2016 passed
by this court in that regard. In the absence of any finding, surely, the appellant herein
had a cause to seek clarification of the order dated August 17, 2016, which she did by
filing CM. No. 36960/2016.
14. The captioned application was considered by this Court on October 5, 2016, when it

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was clarified that the amount under Section 24 of the Hindu Marriage Act, 1955 shall be
payable as per the order dated May 2, 2016, the effect of which is that the interim
maintenance granted by the Family Court shall relate back to the date of moving the
application. In fact, the said order had the effect of disposing of CM. No. 36960/2016.
Be that as it may, in the interregnum, the respondent had also filed CM. No. 7725/2017.
Both the said applications, i.e. CM No. 36960/2016 and CM No. 7725/2017 were
considered by the Court on February 27, 2017, on which date, CM. No. 36960/2016 was
dismissed.
15. In so far as CM. No. 7725/2017 is concerned, the Court passed an order correcting
its earlier order dated October 5, 2016 stating that the amount as determined under
Section 24 of the Hindu Marriage Act, 1955 shall be payable as per the order dated
March 18, 2016, which in effect means that the order of the learned Family Court would
determine the interim maintenance, i.e., at ' 25,000/- per month payable from the date
of the order. As a matter of fact, this order is at variance with the earlier order passed
by this court on October 5, 2016. No doubt, the appellant/petitioner had filed an SLP
challenging the orders dated February 27, 2017 and August 17, 2016 which was
dismissed, but at the same time, Supreme Court had granted her liberty to approach the
High Court for filing a review application. It is in view of the liberty granted by the
Supreme Court, that the present review application has been filed. The relief prayed for
in the review application is to a limited extent, i.e., for reviewing the order dated
February 27, 2017.
16. The question which arises for our consideration is whether this Court could have
corrected the earlier order dated October 5, 2016 by passing an order dated February
27, 2016, holding that the maintenance payable to the appellant/petitioner shall be
regulated by the order dated March 18, 2016. To answer that question, it would be
important to note that one of the grounds raised by the appellant/petitioner while
challenging the order dated March 18, 2016, was that the interim maintenance must
relate back to the date of the application. Though Mr. Kapoor, learned counsel for the
respondent had relied upon para 17 of the order dated August 17, 2016, but he
conceded that there is no finding in the said order rejecting the ground taken by the
appellant/petitioner to the effect that the interim maintenance must relate back to the
date of the application under Section 24 of the Hindu Marriage Act, 1955. If that be so,
surely the appellant/petitioner had a grievance for which she filed an application, CM
No. 36960/2017, seeking clarification of the order dated August 17, 2016 which order
was clarified by this court on October 5, 2016.
17. We have no doubt that this court had fallen in an error while correcting the order
dated October 5, 2016, on the basis of the application filed by the respondent. In effect,
the order October 5, 2016 is in conformity with the law laid down by the Supreme Court
in Jaiminiben Hirenbhai Vyas (supra), wherein the following was held:-
"8. In Shail Kumari Devi v. Krishan Bhagwan Pathak,
(MANU/SC/3353/2008 : [2008] 9 SCC 632), this Court dealt with the question
as to from which date a Magistrate may order payment of maintenance to wife,
children or parents. In Shail Kumar Devi, this Court considered a catena
of decisions by the various High Courts, before arriving at the
conclusion that it was incorrect to hold that, as a normal rule, the
Magistrate should grant maintenance only from the date of the order
and not from the date of the application for maintenance. It is,
therefore, open to the Magistrate to award maintenance from the date
of application. The Court held, and we agree, that if the Magistrate intends to

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 pass such an order, he is required to record reasons in support of such Order.
Thus, such maintenance can be awarded from the date of the Order, or, if so
ordered, from the date of the application for maintenance, as the case may be.
For awarding maintenance from the date of the application, express order is
necessary.
9. In the case before us, the High Court has not given any reason for not
granting maintenance from the date of the application. We are of the view that
the circumstances eminently justified grant of maintenance with effect from the
date of the application in view of the finding that the Appellant had worked
before marriage and had not done so during her marriage. There was no
evidence of her income during the period the parties lived as man and wife. We,
therefore reverse the Order of the High Court in this regard and direct that the
respondent shall pay the amount of maintenance found payable from the date of
the application for maintenance. As far as maintenance granted under Section 24
of the H.M. Act by the Courts below is concerned, it shall remain unaltered".
(emphasis added)
18. In Vinod Kumar Jolly (supra), the High Court had held as under:-
"16. Insofar as other appeal filed by the wife and child of the appellant is
concerned, we find from the impugned judgment that no reasons are given by
the learned ADJ as to why the direction is given to pay maintenance from the
date of the order only and not from the date of filing of the petition. The
normal rule is that the maintenance is to be allowed from the date of
filing of the petition. If this rule is to be deviated, there has to be
special reasons for adopting such course. We find none. Therefore, second
appeal has to be allowed. The judgment dated 4.11.2006 is modified to the
extent that maintenance @ Rs. 2500/- to the respondent No. 2 and Rs. 1500/-
per month to the respondent No. 1 shall be paid by the appellant to them w.e.f.
21.2.1995. The appellant, however, shall be entitled to seek adjustment of the
amounts of maintenance which the appellant had paid to the respondents in the
proceedings in divorce petition which he was ordered to pay under Section 24 of
the Hindu Marriage Act. Adjustment of only that amount which was paid after
21.2.1995 shall be given. Arrears of maintenance shall be calculated and paid by
the appellant to the respondents within two months. In case appellant wants to
pay the arrears in Installments, he shall be at liberty to approach the Trial Court
for this purpose and such a request, if any, shall be considered by the Trial
Court on its own merits."
(emphasis added)
19. In so far as the judgment in the case of Smt. Jasbir Kaur Sehgal (supra) relied
upon by learned counsel for the respondent is concerned, in the said judgment, it is
noted that the concerned court had awarded the wife maintenance of ' 1,000/- per
month. Her revision petition before the District Judge was dismissed. Thereafter, she
had filed a writ petition under Article 227 of the Constitution of India, whereby the High
Court had granted her maintenance @ ' 1,500/- per month. The Supreme Court
enhanced the maintenance pendent lite at ' 5,000/- per month. The question that arose
before the Supreme Court was as to what should be date from which the wife would be
entitled to claim enhanced amount of maintenance, pendent lite. In para 9 of the said
decision, the Supreme Court held as under:

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 "9. The question then arises as to from which date the wife would be entitled to
claim the enhanced amount of maintenance pendente lite. If wife has no source
of income it is the obligation of the husband to maintain her and also children of
the marriage on the basis of the provision contained in the Hindu Adoption and
Maintenance Act, 1956. Her right to claim maintenance fructifies on the
date of the filing of the petition for divorce under the Act. Having thus
fixed the date as the filing of the petition for divorce it is not always
that the court has to grant the maintenance from that date. The court
has discretion in the matter as to from which date maintenance under
Section 24 of the Act should be granted. The discretion of the court
would depend upon multiple circumstance which are to be kept in
view. These could be the time taken to serve the respondent in the petition the
date of filing of the application under Section 241 of the Act; conduct of the
parties in the proceedings; averments made in the application and the reply
there to; the tendency of the wife to inflate the income out of all proportion and
that of the husband to suppress the same; and the like. There has to be honesty
of purpose for both the parties which unfortunately we find lacking in this case.
We are therefore of the opinion that ends of justice would be met if we direct
that maintenance pendente lite as fixed by this judgment to be payable from the
date of impugned order of the High Court which is October 16, 1996. We order
accordingly. The impugned judgment of the High Court shall stand modified to
that extent. All arrears of maintenance shall be paid within a period of two
months from today and then regularly every month."
(emphasis added)
20. It is thus apparent that the abovesaid judgment of the Supreme Court was passed
only to meet the ends of justice. The Supreme Court had directed that maintenance,
pendente lite shall be payable from the date of the impugned order of the High Court.
21. In the case in hand, the reasons given by this Court in its order dated May 2, 2016,
holding that the appellant/petitioner shall be entitled to payment of maintenance from
the date of the application, has already been reproduced above. Suffice it is to state that
in para 3 of the order, this court has held that normally, the order of maintenance has
to be passed w.e.f. from the date of the application, unless the court finds that the
applicant was employed or not needing the maintenance for any period during the
pendency of the application. The conclusion of the Court was that there is no finding in
the order dated March 18, 2016 passed by the learned Family Court in that regard.
Therefore, the maintenance payable to the appellant/petitioner was required to have
been directed to be paid w.e.f. the date of the application, i.e. w.e.f. April, 2014.
22. No doubt, in the order dated May 11, 2016, this court had stated that the directions
issued on May 2, 2016 and those issued on May 11, 2016 were not a final view of the
matter and the maintenance had been computed without prejudice to the rights and
contentions, but at the same time, we also note that the learned Family Court had given
a finding that the appellant/petitioner is earning an amount of ' 1 lakh per month and
the respondent herein, about ' 2 lakh per month. Despite that, the learned Family Court
had granted an amount of ' 25,000/- per month as maintenance to the
appellant/petitioner. Having granted the appellant/petitioner maintenance @ ' 25,000/-
per month, no reasoning has been given by the learned Family Court as to why the said
amount must be given from the date of the order and not from the date when the
application was filed by her. Contrary to the submission made by the learned counsel
for the respondent, no evidence has come on record to demonstrate that the

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appellant/petitioner was employed during the pendency of the application under Section
24 of the Hindu Marriage Act, 1955 or the facts and circumstances of this case are such,
that the maintenance needs to be granted from the date of the order.
23. Accordingly, the Review Petition is allowed. The order dated February 27, 2017 is
reviewed and resultantly, the order dated October 05, 2016 is revived. In other words,
the amount determined under Section 24 of the Hindu Marriage Act is held to be
payable by the respondent to the appellant/petitioner as per the order dated May 02,
2016 from the date of moving the application, w.e.f. April, 2014. Review Petition is
disposed of.
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