Section 25(1) of the Act does provide that the conduct of the parties and other circumstances of the case are to be taken into consideration by the Court while fixing permanent alimony and maintenance, but there is no such provision under Section 24 of the Act. But, it is within the discretion of the Court to make an order for pendente lite maintenance, and merely because two of the conditions, namely, the wife or the husband, as the case may be, has no independent income sufficient for her or his support and necessary expenses of the proceedings, and the other spouse has sufficient means, are satisfied, then it is not necessary for the Court to order payment of maintenance pendente lite and expenses of the proceedings. Therefore, though it is not specifically provided that the conduct of the applicant for maintenance pendente lite and expenses of the proceedings is also to be taken into consideration, but the fact that the discretion of the Court to make an order or not to make an order goes to show that the Court has to take the conduct and the other circumstances also into consideration while disposing of the application under Section 24 of the Act. The famous author 'Mulla' in Principles of Hindu Law (14th Edn.) while dealing with Section 24 of the Act and discretion of the Court has observed at page 801 like this :--
"At the same time there is nothing in the section to prevent the court from taking into consideration the conduct of the parties. A comparison of the language of this Section with that of Section 25 which deals with permanent alimony and maintenance shows that under latter section the conduct of the parties is an important factor for consideration in awarding the same. The words "conduct of the parties" do not appear in the present section but the conduct of the parties would not be ignored by the Court in making the order asked for or in assessing the amount of alimony. The matter is one for the court to deal with as it thinks just and reasonable in its unfettered discretion and the court has the power to make an order for alimony pendente lite for instance in favour of a respondent wife notwithstanding the wife's adultery. In considering an application for such an order the court would take into account all relevant circumstances, including the adultery, the conduct of the parties and any plea of conduct conducing or condonation. Cases are conceivable in which although the court has power to award alimony pendente lite, no order may be made. Thus, for instance, in case of a wife who has brought cohabitation to an end by admitted misconduct for which the husband is not to be blamed or in case where the conduct of the erring spouse is shown to have caused exceptional hardship to the other or where the erring spouse is shown to have been guilty of exceptional depravity the court may refuse to grant alimony pendente lite. The section confers on the court a general power to make orders for alimony pendente lite and the court would take into consideration the whole of the circumstances of the case although the prime consideration even in such cases would be the means of the parties.
Rajasthan High Court
Balbir Singh vs Smt. Swaran Kanta on 18 November, 1980
Equivalent citations: AIR 1981 Raj 266
1. Against an order of the learned District Judge, Alwar ordering a permanent alimony at Rs. 85/-p.m. under Section 25 of the Hindu Marriage Act, 1955 (hereinafter referred to as the Act) while dismissing the application of the appellant moved under Section 13 of the Act, an appeal has been preferred in this Court. In this appeal, two applications under Sections 24 and 26 of the Act were filed. These applications are to be disposed of.2. The respondent, who is the wife of the appellant, has claimed Rs. 770/- as Advocate's fee and Rs. 200/- towards the expenses of the appeal. Thus, in all, she has claimed Rs. 970/-. The case of the respondent is, that she has no independent income of her own to meet the expenses of the proceedings, and the appellant is an Upper Division Clerk with the Food Corporation of India and getting not less than Rs. 800/- p.m. He has none to support except the respondent whom he has neglected to support. In reply to this application, the appellant has come out with a case that his income is only Rs. 489/- per month, and the respondent is a trained nurse and she is running a private clinic in the village and earning Rs. 500/- p.m. Both the parties have in support of their case relating to the income have filed affidavits. In the application under Section 26 of the Act, the respondent has claimed pendente lite maintenance for her minor daughter,
3. It is not disputed that an application under Section 11 of the Act has been filed by the appellant in the Court, of learned District Judge, Alwar, which is pending. It is also not disputed that in those proceedings an order has been made under Section 24 of the Act directing the appellant to pay Rs. 120/- p.m. as pendente lite maintenance. Therefore, if the respondent so chooses, she can file an application under Section 26 of the Act in those proceedings in the trial Court for grant of maintenance to the minor daughter.
4. In the present stay application, the only question is as to whether the respondent should be awarded any sum to meet the expenses of the proceedings. Mr. Khan, the learned Advocate for the respondent submits that while dealing with an application under Section 24 of the Act, the Court has also to see to the conduct of the parties and if the conduct of the respondent is looked into, it is such which does not entitle her to an order under Section 24 of the Act for expenses of the proceedings, i.e., this appeal. Mr. Rastogi, the learned Advocate for the non-petitioner, on the other hand, contends that the conduct is only relevant while making an order of a permanent alimony under Section 25 of the Act, so far as pendente lite maintenance under Section 24 of the Act is concerned the conduct of the parties is not relevant. Therefore, the question is, as to whether while dealing with an application under Section 24 of the Act either for pendente lite maintenance and/or for expenses of the proceedings, the court can look into the conduct of the parties?
5. Section 25(1) of the Act does provide that the conduct of the parties and other circumstances of the case are to be taken into consideration by the Court while fixing permanent alimony and maintenance, but there is no such provision under Section 24 of the Act. But, it is within the discretion of the Court to make an order for pendente lite maintenance, and merely because two of the conditions, namely, the wife or the husband, as the case may be, has no independent income sufficient for her or his support and necessary expenses of the proceedings, and the other spouse has sufficient means, are satisfied, then it is not necessary for the Court to order payment of maintenance pendente lite and expenses of the proceedings. Therefore, though it is not specifically provided that the conduct of the applicant for maintenance pendente lite and expenses of the proceedings is also to be taken into consideration, but the fact that the discretion of the Court to make an order or not to make an order goes to show that the Court has to take the conduct and the other circumstances also into consideration while disposing of the application under Section 24 of the Act. The famous author 'Mulla' in Principles of Hindu Law (14th Edn.) while dealing with Section 24 of the Act and discretion of the Court has observed at page 801 like this :--
"At the same time there is nothing in the section to prevent the court from taking into consideration the conduct of the parties. A comparison of the language of this Section with that of Section 25 which deals with permanent alimony and maintenance shows that under latter section the conduct of the parties is an important factor for consideration in awarding the same. The words "conduct of the parties" do not appear in the present section but the conduct of the parties would not be ignored by the Court in making the order asked for or in assessing the amount of alimony. The matter is one for the court to deal with as it thinks just and reasonable in its unfettered discretion and the court has the power to make an order for alimony pendente lite for instance in favour of a respondent wife notwithstanding the wife's adultery. In considering an application for such an order the court would take into account all relevant circumstances, including the adultery, the conduct of the parties and any plea of conduct conducing or condonation. Cases are conceivable in which although the court has power to award alimony pendente lite, no order may be made. Thus, for instance, in case of a wife who has brought cohabitation to an end by admitted misconduct for which the husband is not to be blamed or in case where the conduct of the erring spouse is shown to have caused exceptional hardship to the other or where the erring spouse is shown to have been guilty of exceptional depravity the court may refuse to grant alimony pendente lite. The section confers on the court a general power to make orders for alimony pendente lite and the court would take into consideration the whole of the circumstances of the case although the prime consideration even in such cases would be the means of the parties."
6. Mr. Rastogi, the learned Advocate for the respondent has placed reliance on Surendra Kumar Asthana v. Smt. Kamlesh Asthana, AIR 1974 All 110, Mrs. Arti Singh v. Lt. Col. Kanwar Pal Singh, AIR 1977 Delhi 76 and Lallubhai Reshavram Joshi v. Nirmalaben Lalluram Joshi. AIR 1972 Guj 174. In Surendra Kumar's case (supra), it has been held that relief under Section 24 can be granted even if objection to jurisdiction is raised and not decided. They have not held as to whether the conduct of the parties in the other circumstances of the case is also to be taken into consideration, and all that has been held is that an indigent spouse should not be left without means of putting her or his case fairly before the Court. In Mrs. Arti Singh's case (supra) all that has been held is that the exercise of the power under Section 24 of the Act is not dependent on the defence raised by the opposite party. Whether or not the conduct of the parties and the other circumstances of the case are also to be taken into consideration in an application under Section 24 of the Act was not considered. We will look into the only authority which has dealt with as to whether the conduct of the parties is relevant or not and that is Lallubhai's case (supra) where it has been held that conduct of either party is immaterial while dealing with an application under Section 24, although it is relevant for passing an order under Section 25. The basis of this authority is that if the conduct of a party was to be taken into consideration for passing any order, there would have been appropriate provisions in the section itself as is found in Section 25 of the Act. I have already stated earlier that it is within the discretion of the Court to pass an order for pendente lite maintenance and expenses of the proceedings under Section 24 of the Act, and merely because the two conditions, as mentioned earlier, are satisfied, it is not incumbent to pass an order, and notwithstanding the existence of two conditions, the court may in a proper case refuse to pass an order under Section 24 of the Act. Therefore, in exercise of its discretion, the court is competent to consider the conduct of the parties and the other circumstances of the case, though, by and large the main consideration with the court will be the means of the parties to the litigation, as a person having no means has a right to engage a lawyer to defend him or her, as the case may be. Mr. Khan, the learned counsel for the appellant, has referred to two authorities, namely, Raja Gopalan v. Rajamma, AIR 1967 Ker 181 and Sachindra Nath Biswas v. Smt. Banmala Biswas, AIR 1960 Cal 575. In all these authorities under Section 25 of the Act, there is a provision that the conduct of the parties and the other circumstances of the case are also to be taken into consideration. None of these authorities has dealt with the point as to whether these factors are also relevant while dealing with an application under Section 24 of the Act. But, notwithstanding that there is no analogous provision about taking into consideration the conduct in the circumstances of the case in Section 24 of the Act, the order being discretionary, these elements are such which need consideration.
7. Now. 1he question is, as to whether in the instant case looking to the conduct of the parties the circumstances are such that an order should be made in favour of the respondent ordering the appellant to pay expenses of the proceedings, and if so to what extent? It is contended by Mr. Khan, the learned Advocate for the appellant, that the respondent was already married to one Shivpal Singh and during the subsistence of that marriage she again contracted a second marriage with the appellant. Therefore, according to him, the marriage was a nullify in view of Section 5 of the Act. It is further contended that the learned trial court while dismissing the application under section 13 of the Act moved by the appellant could not have ordered payment of permanent alimony under Section 25 of the Act, and an order could only be made in case a decree would have been passed. This is such a point which can only be taken up for consideration in the main appeal and not in the proceedings under Section 24 of the Act in this Court. It is yet to be decided, though documentary evidence has been filed by the appellant, as to whether during the subsistence of first marriage with Shivpal Singh, the second marriage with the appellant was contracted. It is a point on the merits of the case, and it is not possible to say anything this way or that way while dealing with an application under Section 24 of the Act, or dealing with the appeal in this case, because it is only confined to the order of permanent alimony while dismissing the application for divorce under Section 13 of the Act. The respondent has given her affidavit that the allegations levelled earlier that she was having her own income and was drawing Rs. 500/- p.m. are not correct. She has given an affidavit, which has been controverted by the appellant, who has stated in his affidavit that she being a trained nurse is running a private clinic and earning Rs. 500/- p.m. On these affidavits, it cannot be held definitely that the respondent is having an independent income of her own so as to meet the expenses of the proceedings. As already observed earlier, the means of the parties to the litigation are relevant while considering the application under Section 24 of the Act. The appellant is only earning Rs. 489/- p.m.
8. Taking all these circumstances into consideration, I will order the payment of Rs. 75/- p.m. as expenses of this appeal by the appellant to the respondent. The payment should be made within two weeks. The moment the payment is made and Mr. Khan informs, the appeal itself shall be listed for hearing.
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