So far as the interim maintenance provided for in Section 24 of the Act is concerned, the Court's approach to the problem should be that a marriage de facto carries with it the right to interim maintenance in matrimonial proceeding. The only consideration which should weigh with the judicial mind is whether the applicant is possessed of sufficient means for his or her support and necessary expenses of the proceeding. The word 'sufficient' is of some significance and it connotes that the income of the applicant must be such which would be sufficient for a normal person for his or her sustenance as well as to meet the necessary expenses of the proceeding. It does not contemplate 'some income' by the applicant howsoever meagre it may be, would disentitle the applicant from getting relief under Section 24 of the Act. At the same time, the Court should also bear in mind another principle, namely, that the order should not work out as a penalty crippling the party from prosecuting the proceeding. The Court undoubtedly exercises a wide discretion in these matters but the discretion is judicial and not an arbitrary or capricious one. It is to be guided on sound principles of matrimonial law and should be exercised within the ambit of the provisions in the section and having regard to the object of the Act. Keeping the aforesaid principles in view, if the facts of the present case are examined, it cannot be said that a temporary appointment of the wife as a teacher which is of a very shaky tenure would disentitie her to receive maintenance under Section 24 of the Act. The learned Subordinate Judge, in my opinion, therefore, committed an error in recalling the earlier order on that score.
2. The facts necessary for adjudication of the present dispute may be briefly stated as follows : --
An application under Section 13 of the Hindu Marriage Act (hereinafter referred to as 'the Act') has been filed by the husband-opposite party which has been numbered as O.S. No. 95/83 and is pending disposal before the Subordinate Judge, Bhadrak. During the pendency of the said proceeding, the wife filed a petition under Section 24 of the Act for pendente lite maintenance which was numbered as Misc. Case No. 8/85 and the said application was rejected by the Subordinate Judge by order D/- 14-3-84, The Subordinate Judge had observed that as the wife was serving and had independent source of income, the application could not be entertained, but by the said order gave liberty to the wife to make an application for interim maintenance if she loses her service. Thereafter on 31-7-84, the wife filed an application under Section 24 of the Act which was numbered as Misc. Case No. 106/84 claiming maintenance to the tune of Rs. 450/- per month and also claiming a sum of Rs. 350/- as costs of litigation. It was averred in the said application that she was staying with her minor child, aged four years and further the income of the husband was Rs. 2000/- per month. The husband filed an objection to the said application on 10-8-84. Thereafter instead of contesting the matter, a joint memo was filed on 30-11-84 whereunder the husband agreed to pay a sum of Rs. 250/- per month towards alimony payable from November, 1984 and the amount was to be paid on or before 10th day of each succeeding month. On the basis of the said memo miscellaneous case No. 106/84 was disposed of by the learned Subordinate Judge by order D/- 1-12-84. On 9-1-85 an application was filed by the husband praying for cancellation of the order D/- 1-12-84 on the sole allegation that the wife had been appointed as a teacher and was drawing a salary of Rs. 600/- per month. This application was allowed by the learned Subordinate Judge by order D/-19-6-85 and hence the present revision.
3. Mr. Nayak, the learned counsel appearing for the petitioner contends that in view of the joint memo filed by the parties and the husband having agreed to pay a sum of Rs. 250/- per month towards maintenance of the wife and there being no condition that in the event of the wife serving again the agreement would not operate, the Subordinate Judge had no jurisdiction to cancel the earlier order D/-1-12-84 which was passed on the basis of an agreement between the parties. The learned counsel further urges that in the application for cancellation of the order D/- 1-12-84, it has been averred that the petitioner has been appointed as a teacher in Mamadula P.S.M.E. School vide letter No. 9298 D/- 2-11-84 and, therefore, the order of appointment itself was prior to the consent memo filed on 30-11-84 and the order of the Subordinate Judge D/-1-12-84. No change of circumstances having taken place, the application for cancellation filed by the husband is not maintainable and the impugned order of the Subordinate Judge must be held to be contrary to law. The learned counsel for the petitioner further urges that the phrase "has no independent income sufficient for her or his support" in Section 24 of the Hindu Marriage Act disentitling the applicant for receiving the alimony means that the income is such which' would be really sufficient to maintain the applicant and his or her dependent and this should be adjudged keeping in view the status of the parties, the so-called monthly income of the opposite party and all other relevant factors. According to the learned counsel, the petitioner gets an appointment as a teacher on ad hoc basis of a very shaky tenure and has also a minor child with her. That being the position, she will not be disentitled to receive maintenance from her husband who is a Bank Officer drawing a salary of Rs. 20007-per month.
4. Mr. Sutar, the learned counsel for the opposite party-husband on the other hand contends that a Court does always possess inherent power to modify its earlier order if the situation so demands and, therefore, there is no illegality in the impugned order of the learned Subordinate Judge. Mr. Sutar further urges that under Section 24 of the Act no pendente lite maintenance can be granted in favour of a child and, therefore, the fact that the petitioner-wife is staying with the minor child is of no consequence. The rival contentions require careful examination.
5. The right of a wife to receive maintenance as contemplated under Section 24 of the Act is an incidence of the status of matrimony. Normally the husband is bound to defray the wife's costs in a proceeding and to provide for her maintenance and support pending disposal of the main proceeding. Section 24 of the Act confers wide discretion on the court to grant maintenance but that discretion must be a judicial discretion.
6. The first question which arises for consideration is whether it was open for the husband to file an application for cancellation of the order D/-1-12-84 which was passed on the basis of an agreement between the parties. It appears that the wife had claimed Rs. 450/-per month towards her maintenance and Rs. 350/- towards litigation expense. The husband had also filed an objection to the same, but ultimately agreed to pay Rs. 250/-per month and filed a consent memo on 30-11-84, It is not a condition of the said agreement that it is liable to be recalled in the event of some future contingency. That being so, it was not open for the husband to file an application for cancellation of the earlier order nor was it open for the Subordinate Judge to modify the order D/-1-12-84 which had been passed by agreement of parties. That apart, the so-called order of appointment of the petitioner is D/- 2-11-84 and the consent memo was filed on 30-11-84 i.e. subsequent to the said order of appointment arid thus there has been no change of circumstance, so far as the petitioner is concerned. Even assuming that a change of circumstance would confer jurisdiction on the Court to alter the earlier order, but in the facts of the present case, there having no change of circumstances the Subordinate Judge was wholly in error in modifying his earlier order D/- 1-12-84. It is also apparent that in the application filed by the husband D/-9-1-85, for cancellation of the earlier order, there has been no averment even that the husband was not aware of the order of appointment of the wife and in that view of the matter, it must be assumed that the husband was fully aware of the same but agreed to pay a monthly maintenance of Rs. 250/- in order to avoid contest and for lowering the claim of maintenance claimed by the wife. In this view of the matter, I am clearly of the opinion that the Subordinate Judge had no jurisdiction to modify his earlier order D/-1-12-84 which had been passed on the basis of the consent memo filed by the parties.
7. Though the aforesaid conclusion is sufficient for disposal of this revision, but I think it proper to deal with the other submissions of the learned counsel for the petitioner i.e. what would be the correct interpretation of the expression "independent in come sufficient for her or his support" used in Section 24 of the Act.
8. So far as the interim maintenance provided for in Section 24 of the Act is concerned, the Court's approach to the problem should be that a marriage de facto carries with it the right to interim maintenance in matrimonial proceeding. The only consideration which should weigh with the judicial mind is whether the applicant is possessed of sufficient means for his or her support and necessary expenses of the proceeding. The word 'sufficient' is of some significance and it connotes that the income of the applicant must be such which would be sufficient for a normal person for his or her sustenance as well as to meet the necessary expenses of the proceeding. It does not contemplate 'some income' by the applicant howsoever meagre it may be, would disentitle the applicant from getting relief under Section 24 of the Act. At the same time, the Court should also bear in mind another principle, namely, that the order should not work out as a penalty crippling the party from prosecuting the proceeding. The Court undoubtedly exercises a wide discretion in these matters but the discretion is judicial and not an arbitrary or capricious one. It is to be guided on sound principles of matrimonial law and should be exercised within the ambit of the provisions in the section and having regard to the object of the Act. Keeping the aforesaid principles in view, if the facts of the present case are examined, it cannot be said that a temporary appointment of the wife as a teacher which is of a very shaky tenure would disentitie her to receive maintenance under Section 24 of the Act. The learned Subordinate Judge, in my opinion, therefore, committed an error in recalling the earlier order on that score.
9. In the ultimate result, therefore, the order of the learned Subordinate Judge D/- 19-6-85 is hereby quashed and the order D/- 1-12-84 which had been passed on the basis of the joint memo filed on 30-11-84 must continue to remain operative. This civil revision is accordingly allowed.
10. The interim order of stay of further proceeding of the suit passed by this Court on 18-12-85 is hereby vacated and it is further directed that the Subordinate Judge would dispose of the suit as expeditiously as possible.
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Orissa High Court
Smt. Krishnapriya Mohapatra vs Birakishore Mohapatra on 21 March, 1986
Equivalent citations: AIR 1987 Ori 65
1. The petitioner is the wife of the opposite party and in this revision the order of the Subordinate Judge, D/- 19-6-85 is being challenged.2. The facts necessary for adjudication of the present dispute may be briefly stated as follows : --
An application under Section 13 of the Hindu Marriage Act (hereinafter referred to as 'the Act') has been filed by the husband-opposite party which has been numbered as O.S. No. 95/83 and is pending disposal before the Subordinate Judge, Bhadrak. During the pendency of the said proceeding, the wife filed a petition under Section 24 of the Act for pendente lite maintenance which was numbered as Misc. Case No. 8/85 and the said application was rejected by the Subordinate Judge by order D/- 14-3-84, The Subordinate Judge had observed that as the wife was serving and had independent source of income, the application could not be entertained, but by the said order gave liberty to the wife to make an application for interim maintenance if she loses her service. Thereafter on 31-7-84, the wife filed an application under Section 24 of the Act which was numbered as Misc. Case No. 106/84 claiming maintenance to the tune of Rs. 450/- per month and also claiming a sum of Rs. 350/- as costs of litigation. It was averred in the said application that she was staying with her minor child, aged four years and further the income of the husband was Rs. 2000/- per month. The husband filed an objection to the said application on 10-8-84. Thereafter instead of contesting the matter, a joint memo was filed on 30-11-84 whereunder the husband agreed to pay a sum of Rs. 250/- per month towards alimony payable from November, 1984 and the amount was to be paid on or before 10th day of each succeeding month. On the basis of the said memo miscellaneous case No. 106/84 was disposed of by the learned Subordinate Judge by order D/- 1-12-84. On 9-1-85 an application was filed by the husband praying for cancellation of the order D/- 1-12-84 on the sole allegation that the wife had been appointed as a teacher and was drawing a salary of Rs. 600/- per month. This application was allowed by the learned Subordinate Judge by order D/-19-6-85 and hence the present revision.
3. Mr. Nayak, the learned counsel appearing for the petitioner contends that in view of the joint memo filed by the parties and the husband having agreed to pay a sum of Rs. 250/- per month towards maintenance of the wife and there being no condition that in the event of the wife serving again the agreement would not operate, the Subordinate Judge had no jurisdiction to cancel the earlier order D/-1-12-84 which was passed on the basis of an agreement between the parties. The learned counsel further urges that in the application for cancellation of the order D/- 1-12-84, it has been averred that the petitioner has been appointed as a teacher in Mamadula P.S.M.E. School vide letter No. 9298 D/- 2-11-84 and, therefore, the order of appointment itself was prior to the consent memo filed on 30-11-84 and the order of the Subordinate Judge D/-1-12-84. No change of circumstances having taken place, the application for cancellation filed by the husband is not maintainable and the impugned order of the Subordinate Judge must be held to be contrary to law. The learned counsel for the petitioner further urges that the phrase "has no independent income sufficient for her or his support" in Section 24 of the Hindu Marriage Act disentitling the applicant for receiving the alimony means that the income is such which' would be really sufficient to maintain the applicant and his or her dependent and this should be adjudged keeping in view the status of the parties, the so-called monthly income of the opposite party and all other relevant factors. According to the learned counsel, the petitioner gets an appointment as a teacher on ad hoc basis of a very shaky tenure and has also a minor child with her. That being the position, she will not be disentitled to receive maintenance from her husband who is a Bank Officer drawing a salary of Rs. 20007-per month.
4. Mr. Sutar, the learned counsel for the opposite party-husband on the other hand contends that a Court does always possess inherent power to modify its earlier order if the situation so demands and, therefore, there is no illegality in the impugned order of the learned Subordinate Judge. Mr. Sutar further urges that under Section 24 of the Act no pendente lite maintenance can be granted in favour of a child and, therefore, the fact that the petitioner-wife is staying with the minor child is of no consequence. The rival contentions require careful examination.
5. The right of a wife to receive maintenance as contemplated under Section 24 of the Act is an incidence of the status of matrimony. Normally the husband is bound to defray the wife's costs in a proceeding and to provide for her maintenance and support pending disposal of the main proceeding. Section 24 of the Act confers wide discretion on the court to grant maintenance but that discretion must be a judicial discretion.
6. The first question which arises for consideration is whether it was open for the husband to file an application for cancellation of the order D/-1-12-84 which was passed on the basis of an agreement between the parties. It appears that the wife had claimed Rs. 450/-per month towards her maintenance and Rs. 350/- towards litigation expense. The husband had also filed an objection to the same, but ultimately agreed to pay Rs. 250/-per month and filed a consent memo on 30-11-84, It is not a condition of the said agreement that it is liable to be recalled in the event of some future contingency. That being so, it was not open for the husband to file an application for cancellation of the earlier order nor was it open for the Subordinate Judge to modify the order D/-1-12-84 which had been passed by agreement of parties. That apart, the so-called order of appointment of the petitioner is D/- 2-11-84 and the consent memo was filed on 30-11-84 i.e. subsequent to the said order of appointment arid thus there has been no change of circumstance, so far as the petitioner is concerned. Even assuming that a change of circumstance would confer jurisdiction on the Court to alter the earlier order, but in the facts of the present case, there having no change of circumstances the Subordinate Judge was wholly in error in modifying his earlier order D/- 1-12-84. It is also apparent that in the application filed by the husband D/-9-1-85, for cancellation of the earlier order, there has been no averment even that the husband was not aware of the order of appointment of the wife and in that view of the matter, it must be assumed that the husband was fully aware of the same but agreed to pay a monthly maintenance of Rs. 250/- in order to avoid contest and for lowering the claim of maintenance claimed by the wife. In this view of the matter, I am clearly of the opinion that the Subordinate Judge had no jurisdiction to modify his earlier order D/-1-12-84 which had been passed on the basis of the consent memo filed by the parties.
7. Though the aforesaid conclusion is sufficient for disposal of this revision, but I think it proper to deal with the other submissions of the learned counsel for the petitioner i.e. what would be the correct interpretation of the expression "independent in come sufficient for her or his support" used in Section 24 of the Act.
8. So far as the interim maintenance provided for in Section 24 of the Act is concerned, the Court's approach to the problem should be that a marriage de facto carries with it the right to interim maintenance in matrimonial proceeding. The only consideration which should weigh with the judicial mind is whether the applicant is possessed of sufficient means for his or her support and necessary expenses of the proceeding. The word 'sufficient' is of some significance and it connotes that the income of the applicant must be such which would be sufficient for a normal person for his or her sustenance as well as to meet the necessary expenses of the proceeding. It does not contemplate 'some income' by the applicant howsoever meagre it may be, would disentitle the applicant from getting relief under Section 24 of the Act. At the same time, the Court should also bear in mind another principle, namely, that the order should not work out as a penalty crippling the party from prosecuting the proceeding. The Court undoubtedly exercises a wide discretion in these matters but the discretion is judicial and not an arbitrary or capricious one. It is to be guided on sound principles of matrimonial law and should be exercised within the ambit of the provisions in the section and having regard to the object of the Act. Keeping the aforesaid principles in view, if the facts of the present case are examined, it cannot be said that a temporary appointment of the wife as a teacher which is of a very shaky tenure would disentitie her to receive maintenance under Section 24 of the Act. The learned Subordinate Judge, in my opinion, therefore, committed an error in recalling the earlier order on that score.
9. In the ultimate result, therefore, the order of the learned Subordinate Judge D/- 19-6-85 is hereby quashed and the order D/- 1-12-84 which had been passed on the basis of the joint memo filed on 30-11-84 must continue to remain operative. This civil revision is accordingly allowed.
10. The interim order of stay of further proceeding of the suit passed by this Court on 18-12-85 is hereby vacated and it is further directed that the Subordinate Judge would dispose of the suit as expeditiously as possible.
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