ANW AAR HUSSAIN, J.---Through the present constitutional petition, following prayer has been made: "It is, therefore, respectfully prayed that this writ petition may kindly be accepted and the impugned judgments and decrees dated 03.01.2022 and 25.02.2022 passed by learned Judge Family Court and learned ADJ respectively, be declared illegal, void ab-initio, having been passed without jurisdiction and be set-aside and the suit of respondents may kindly be dismissed, in the interest of justice.
Any other relief, which this Honourable Court may deem fit in the facts and circumstances of the case, may also please be granted."
2. Briefly stated facts of the case are that respondents Nos.1 and 2 ("the respondents") instituted a suit for recovery of dowry articles of respondent No.1 amounting to Rs.345,000/- and recovery of maintenance allowance at the rate of Rs.15,000/- per month each. Vide order dated 28.01.2021, issues were framed and interim maintenance allowance of respondent No.2/minor at the rate of Rs.5,000/- was fixed from the date of institution of the suit, i.e., 02.12.2019 along with arrears thereof.
Admittedly, the petitioner regularly paid the interim maintenance allowance since 28.01.2021 but the arrears related to interim maintenance allowance pertaining to period prior to order dated 28.01.2021 was not paid as directed by the learned Court below. The respondents filed application under Section 17-A of the Family Courts Act, 1964 with the prayer that the right of the petitioner to defend the suit be struck off as the petitioner had failed to comply with the order of the Court and pay the amount of maintenance from the date of institution of the suit, i.e., 02.12.2019. The said application was contested by the petitioner and through impugned order and decree dated 03.01.2022, the learned Trial Court, while invoking Section 17-A of the Act, struck off the right of the petitioner to defend the suit and fixed maintenance of respondent No.1, at the rate of Rs.7,000/- per month, for her Iddat period only and maintenance of respondent No.2 (minor) at the rate of Rs.10,000/- per month with 10% annual increase since institution of the suit. Against the said order and decree, appeal was preferred by the petitioner, which was dismissed by the learned Appellate Court below through the impugned judgment and decree dated 25.02.2022. It is worth-mentioning that during interregnum, the dispute between the parties regarding the dowry articles was settled and by appointment of a bailiff by the learned Trial Court, vide order dated 18.02.2021, dowry articles were returned and the only point of controversy between the parties now is the amount of maintenance allowance.
3. Learned counsel for the petitioner submits that appeal of the petitioner was dismissed to the extent of respondent No.2/minor, mainly for the reason that no appeal was filed against maintenance allowance allowed to the minor that is a misconstruction of record as the petitioner challenged the entire judgment and decree and not confined his appeal to the maintenance allowance of respondent No.1 but this aspect was not properly appreciated by the learned Appellate Court below.
4. Conversely, learned counsel for the respondents submits that undisputedly, arrears to the tune of Rs.80,000/- at the rate of Rs.5,000/- fixed as interim maintenance to be paid remained unpaid and it was contumacious on part of the petitioner by not paying the said amount within time, therefore, order and decree dated 0101.2022 was righty passed against which no appeal was preferred by the petitioner to the extent of the minor and hence, the same has attained finality.
5. In rebuttal, learned counsel for the petitioner reiterates his earlier submission that he challenged the decree as a whole and asserts that only one opportunity was granted for clearing the arrears due that is not adequate.
6. Arguments heard. Record perused.
7. Admittedly, copy of appeal along with grounds thereof is available with the case file and perusal thereof clearly indicates that the challenge was laid to order and decree dated 03.01.2022 without arraying the minor as respondent therein. Meaning thereby that the petitioner has admitted the findings of the learned Trial Court to the extent of the relief extended to the minor through the order and decree dated 03.01.2022 and now the petitioner cannot take a somersault on the ground that he has challenged the decree as a whole. Even otherwise, perusal of impugned judgment dated 25.02.2022 reveals that the petitioner has taken the plea that he is a poor person and working as a Driver with no stable source of income and cannot afford to pay the maintenance to the minor at the rate of Rs.10,000/- per month. The same ground has been agitated today during the course of arguments. In this regard, the learned Appellate Court below has rightly held that mere poverty is no ground for interference in the order passed by the learned Trial Court. Needless to mention that the amount of Rs.10,000/- is neither exorbitant nor unreasonable considering the present inflation and cost of living for the livelihood and hardly sufficient for subsistence of a human being.
8. Learned counsel for the petitioner has laid a lot of emphasis on the ground that only one opportunity was granted to clear the arrears of maintenance allowance while fixing the interim maintenance allowance and the same was not an adequate opportunity. In this regard, suffice to observe that the interim maintenance allowance was fixed with direction to the petitioner to pay the same that was not complied with. It is not vested right of the petitioner to claim multiple opportunities for compliance of the same and he was obligated to adhere to the direction of the learned Trial Court and pay the interim maintenance allowance and clear the arrears without delay and act of non-compliance of order of the Court disentitles him from any discretionary relief from this Court. Moreover, order was passed by the learned Trial Court on 28.01.2021 to pay the interim maintenance allowance from the date of institution of the suit whereafter the case was fixed for a number of dates and remained pending till 03.01.2022 when order and decree dated 03.01.2022 was passed, therefore, the contention of learned counsel for the petitioner that only one opportunity was given to the petitioner to clear outstanding arrears of the interim maintenance allowance in compliance with order dated 28.01.2021 is misconceived, hence, the same is discarded.
9. The impugned decisions passed by learned Courts below are in accordance with law. Learned counsel for the petitioner has not been able to point out any illegality therein. Hence, no interference is called for.
10. For what has been discussed above, this writ petition has no merit, therefore, the same is dismissed.