Termination of proceedings cannot be treated to be a bar of providing interim maintenance under Section 24 of the Act. The object of enacting Section 24 of the Act is that an indigent spouse should not suffer during pendency of the proceedings because of his/her poverty. The whole purpose of Section would frustrate in case it is dismissed on the ground that after the decision of the main petition it does not survive.
ALLAHABAD HIGH COURT
Case :- FIRST APPEAL No. - 16 of 2012
Petitioner :- Ashok Kumar
Respondent :- Smt. Ram Kumari And Another Order Date :- 6.5.2013
Heard learned counsel for the appellant and perused the record.
None appeared on behalf of the respondents instead of sufficient service.
Brief point involved in this appeal is that the appellant filed suit no.639 of 2010 in which he moved application for adjournment which was opposed by defendant/wife on the ground that the plaintiff has not complied with the orders of the Court and has not paid interim maintenance awarded under Section 24 of Hindu Marriage Act. The learned Trial Court by the impugned order dated 13.12.2011 rejected the application for adjournment and dismissed the suit by observing that the plaintiff/respondent has not paid Rs.2500/- as interim maintenance which he has not paid nor has shown any cause in reply to a show cause issued by the Court as to why the petition be not dismissed for want of non-payment of interim maintenance. Learned Trial Court has also observed that the plaintiff/appellant has not paid the costs imposed upon him by the Court earlier. Aggrieved by the impugned order the plaintiff/appellant has preferred the instant appeal.
The impugned order shows that the learned Trial Court has failed to assure the compliance of its orders regarding payment of maintenance to the wife by the husband which is a mandate of law and mere dismissal of application or suit does not ipsofacto end the right of the wife to receive maintenance from the husband as granted by the Court.
For ready reference Section 24 of Act is reproduced below:-
"24. Maintenance Pendente lite and expenses proceedings. Where in any proceeding under this Act it appears to the court that either the wife or the husband, as the case may be, has no independent income sufficient for her or his support and the necessary expenses of the proceeding, it may, on the application of the wife or the husband, order the respondent to pay to the petitioner the expenses of the proceeding, and monthly during the proceeding such sum as, having regard to the petitioner' s own income and the income of the respondent, it may seem to the court to be reasonable."
A plain reading of the Act shows that intention of the legislature is that where in any proceedings it appears to the court that either the wife or the husband, as the case may be, has no independent income sufficient for her or his support and the necessary expenses of the proceeding, it may, order the respondent to pay the the expenses of the proceedings and monthly during the proceeding. These words make the intention of the legislature quite clear that expenses have to be allowed by the Court if the requirement as provided under Section 24 of Act are fulfilled for a period during the pendency of the suit or proceeding. Termination of proceedings cannot be treated to be a bar of providing interim maintenance under Section 24 of the Act. The object of enacting Section 24 of the Act is that an indigent spouse should not suffer during pendency of the proceedings because of his/her poverty. The whole purpose of Section would frustrate in case it is dismissed on the ground that after the decision of the main petition it does not survive.
A Division Bench of Punjab and Haryana High Court in the case of Sohan Lal v. Smt. Kamlesh, AIR 1984 Punjab and Haryana 332, has held as under:-
"From a reading of the section, it is evident that the Court, during the pendency of the proceedings under the Act, viz., for restitution of conjugal rights, judicial separation, divorce or nullity of marriage, can grant to a spouse having no sufficient come to maintain himself/herself and to meet the necessary expenses of the proceeding, maintenance pendente lite and litigation expenses. The object of enacting the section is that an indigent spouse should not suffer during the pendency of the proceedings because of his/her poverty. It is the duty of the Court to decide such an application expeditiously so that the indigent spouse is not handicapped because of want of funds. However, if the application under S. 24 is not decided during the pendency of the main petition on account of dilatory tactics of the other spouse or for some unforeseen circumstances, the whole purpose of the section stands frustrated in case it is dismissed on the ground that after the decision of main petition it does not survive. Therefore, we are of the view that even if the main petition is decided finally, the application under Section 24 which is pending decision can continue. Similarly, a revision petition filed against an order under Section 24 can continue in spite of disposal of the main petition. In the above view, we are fortified by the following observations of D. S. Tewatia, J. in Amrik Singh v. Smt. Narinder Kaur, AIR 1979 Punj & Hary 211:--
"If the view is that the provisions of Section 24 of the Act were intended by the legislature to enable the indigent spouse to secure wherewithal to defend the proceedings against oneself and to maintain oneself during the pendency of the proceedings, then it is incumbent upon the Courts to take an immediate decision upon the petition under Section 24 of the Act, otherwise the delay would defeat the very purpose. Otherwise in a case where the Court delays the decision on the application till the fag-end of the trial of the main case, right to maintenance and litigation expenses would be denied to the applicant on the specious argument that she had been able to prosecute the litigation for all that long period and had survived and so she was not entitled to favourable order on her application, for the litigation expenses and the interim maintenance under Section 24 of the Act was intended merely to meet the contingency of an indigent spouse not being able to prosecute the case and survive during the pendency of the proceedings which contingency would no longer exist when the proceedings had reached the stage of conclusion though not finally concluded."
It was further held:-
"Generally, the petitions under these sections are decided first and should as a matter of fact be decided before conclusion of main petition. It is further observed that a reading of Sections 24 and 26 does not show that if the main petition under Sections 9, 10, 12 or 13 is disposed of, the jurisdiction of the Court to award maintenance pendente lite by an order to be passed thereafter is taken away. This view was affirmed in Bhanwar Lal's case (supra). The same view was taken by a Division Bench of Mysore High Court in N. Subramanyam v. Mrs. M. G. Saraswathi, AIR 1964 Mys 38. It was held therein that it cannot be said that since the proceedings had themselves terminated, there was no occasion to grant interim maintenance or expense. The right to those items, if established, could not be defeated by allowing time to elapse and the pendency of the proceedings to end. We are in respectful agreement with the observations made in the aforesaid cases."
It has been further observed:-
"The word "proceeding" in the section appears at three places and it connotes the main proceedings, that is, proceedings other than proceedings under Section 24. The words "monthly during the proceedings such sum" are very important. These words show the intention of the legislature that it intended to give maintenance to the indigent spouse till disposal of the main petition. If the application under Section 24 is taken to be included in the word "proceeding"', anomalous results would follow. Therefore, we are of the opinion that if the application under Section 24 continues after dismissal of the main petition, the applicant is entitled to the maintenance till the date of the decision of the main petition."
Similar view has been taken by the Calcutta High Court in the case of Chitra Sengupta v. Dhruba Jyoti Sengupta, AIR 1988 Calcutta 98, wherein it has been held that the wife-appellant, who appealed against a decree of divorce passed against he, filed an application for maintenance pendente lite and cost of litigation under Section 24, it would be maintainable. In this case it was also held that "we are, however, of opinion that if she is otherwise entitled to maintenance under S.24, Hindu Marriage Act, the fact that she made no such application in the trial Court would be of no consequence."
In Vinod Kumar Kejriwal v. Usha Vinod Kejriwal, AIR 1993 Bombay 160, the Bombay High Court has also taken the same view as discussed above.
In view of the discussions made above, the impugned order deserves to be set aside in as much as it is silent on the right of the wife to receive maintenance as already granted by the Court.
During the course of argument, learned counsel for the appellant states at bar that the appellant shall pay maintenance within 30 days from today to his wife respondent no. 1.
Accordingly, appeal is allowed, impugned order is set aside and the case is remanded back to learned Trial Court and consequently, learned trial court shall proceed with the case in accordance with law. Appellant shall continue to pay monthly maintenance as directed by learned trial court. Appellant shall appear before learned trial court on 30.5.2013.
Order Date :- 6.5.2013
Rabindra Kumar
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ALLAHABAD HIGH COURT
Case :- FIRST APPEAL No. - 16 of 2012
Petitioner :- Ashok Kumar
Respondent :- Smt. Ram Kumari And Another Order Date :- 6.5.2013
Heard learned counsel for the appellant and perused the record.
None appeared on behalf of the respondents instead of sufficient service.
Brief point involved in this appeal is that the appellant filed suit no.639 of 2010 in which he moved application for adjournment which was opposed by defendant/wife on the ground that the plaintiff has not complied with the orders of the Court and has not paid interim maintenance awarded under Section 24 of Hindu Marriage Act. The learned Trial Court by the impugned order dated 13.12.2011 rejected the application for adjournment and dismissed the suit by observing that the plaintiff/respondent has not paid Rs.2500/- as interim maintenance which he has not paid nor has shown any cause in reply to a show cause issued by the Court as to why the petition be not dismissed for want of non-payment of interim maintenance. Learned Trial Court has also observed that the plaintiff/appellant has not paid the costs imposed upon him by the Court earlier. Aggrieved by the impugned order the plaintiff/appellant has preferred the instant appeal.
The impugned order shows that the learned Trial Court has failed to assure the compliance of its orders regarding payment of maintenance to the wife by the husband which is a mandate of law and mere dismissal of application or suit does not ipsofacto end the right of the wife to receive maintenance from the husband as granted by the Court.
For ready reference Section 24 of Act is reproduced below:-
"24. Maintenance Pendente lite and expenses proceedings. Where in any proceeding under this Act it appears to the court that either the wife or the husband, as the case may be, has no independent income sufficient for her or his support and the necessary expenses of the proceeding, it may, on the application of the wife or the husband, order the respondent to pay to the petitioner the expenses of the proceeding, and monthly during the proceeding such sum as, having regard to the petitioner' s own income and the income of the respondent, it may seem to the court to be reasonable."
A plain reading of the Act shows that intention of the legislature is that where in any proceedings it appears to the court that either the wife or the husband, as the case may be, has no independent income sufficient for her or his support and the necessary expenses of the proceeding, it may, order the respondent to pay the the expenses of the proceedings and monthly during the proceeding. These words make the intention of the legislature quite clear that expenses have to be allowed by the Court if the requirement as provided under Section 24 of Act are fulfilled for a period during the pendency of the suit or proceeding. Termination of proceedings cannot be treated to be a bar of providing interim maintenance under Section 24 of the Act. The object of enacting Section 24 of the Act is that an indigent spouse should not suffer during pendency of the proceedings because of his/her poverty. The whole purpose of Section would frustrate in case it is dismissed on the ground that after the decision of the main petition it does not survive.
A Division Bench of Punjab and Haryana High Court in the case of Sohan Lal v. Smt. Kamlesh, AIR 1984 Punjab and Haryana 332, has held as under:-
"From a reading of the section, it is evident that the Court, during the pendency of the proceedings under the Act, viz., for restitution of conjugal rights, judicial separation, divorce or nullity of marriage, can grant to a spouse having no sufficient come to maintain himself/herself and to meet the necessary expenses of the proceeding, maintenance pendente lite and litigation expenses. The object of enacting the section is that an indigent spouse should not suffer during the pendency of the proceedings because of his/her poverty. It is the duty of the Court to decide such an application expeditiously so that the indigent spouse is not handicapped because of want of funds. However, if the application under S. 24 is not decided during the pendency of the main petition on account of dilatory tactics of the other spouse or for some unforeseen circumstances, the whole purpose of the section stands frustrated in case it is dismissed on the ground that after the decision of main petition it does not survive. Therefore, we are of the view that even if the main petition is decided finally, the application under Section 24 which is pending decision can continue. Similarly, a revision petition filed against an order under Section 24 can continue in spite of disposal of the main petition. In the above view, we are fortified by the following observations of D. S. Tewatia, J. in Amrik Singh v. Smt. Narinder Kaur, AIR 1979 Punj & Hary 211:--
"If the view is that the provisions of Section 24 of the Act were intended by the legislature to enable the indigent spouse to secure wherewithal to defend the proceedings against oneself and to maintain oneself during the pendency of the proceedings, then it is incumbent upon the Courts to take an immediate decision upon the petition under Section 24 of the Act, otherwise the delay would defeat the very purpose. Otherwise in a case where the Court delays the decision on the application till the fag-end of the trial of the main case, right to maintenance and litigation expenses would be denied to the applicant on the specious argument that she had been able to prosecute the litigation for all that long period and had survived and so she was not entitled to favourable order on her application, for the litigation expenses and the interim maintenance under Section 24 of the Act was intended merely to meet the contingency of an indigent spouse not being able to prosecute the case and survive during the pendency of the proceedings which contingency would no longer exist when the proceedings had reached the stage of conclusion though not finally concluded."
It was further held:-
"Generally, the petitions under these sections are decided first and should as a matter of fact be decided before conclusion of main petition. It is further observed that a reading of Sections 24 and 26 does not show that if the main petition under Sections 9, 10, 12 or 13 is disposed of, the jurisdiction of the Court to award maintenance pendente lite by an order to be passed thereafter is taken away. This view was affirmed in Bhanwar Lal's case (supra). The same view was taken by a Division Bench of Mysore High Court in N. Subramanyam v. Mrs. M. G. Saraswathi, AIR 1964 Mys 38. It was held therein that it cannot be said that since the proceedings had themselves terminated, there was no occasion to grant interim maintenance or expense. The right to those items, if established, could not be defeated by allowing time to elapse and the pendency of the proceedings to end. We are in respectful agreement with the observations made in the aforesaid cases."
It has been further observed:-
"The word "proceeding" in the section appears at three places and it connotes the main proceedings, that is, proceedings other than proceedings under Section 24. The words "monthly during the proceedings such sum" are very important. These words show the intention of the legislature that it intended to give maintenance to the indigent spouse till disposal of the main petition. If the application under Section 24 is taken to be included in the word "proceeding"', anomalous results would follow. Therefore, we are of the opinion that if the application under Section 24 continues after dismissal of the main petition, the applicant is entitled to the maintenance till the date of the decision of the main petition."
Similar view has been taken by the Calcutta High Court in the case of Chitra Sengupta v. Dhruba Jyoti Sengupta, AIR 1988 Calcutta 98, wherein it has been held that the wife-appellant, who appealed against a decree of divorce passed against he, filed an application for maintenance pendente lite and cost of litigation under Section 24, it would be maintainable. In this case it was also held that "we are, however, of opinion that if she is otherwise entitled to maintenance under S.24, Hindu Marriage Act, the fact that she made no such application in the trial Court would be of no consequence."
In Vinod Kumar Kejriwal v. Usha Vinod Kejriwal, AIR 1993 Bombay 160, the Bombay High Court has also taken the same view as discussed above.
In view of the discussions made above, the impugned order deserves to be set aside in as much as it is silent on the right of the wife to receive maintenance as already granted by the Court.
During the course of argument, learned counsel for the appellant states at bar that the appellant shall pay maintenance within 30 days from today to his wife respondent no. 1.
Accordingly, appeal is allowed, impugned order is set aside and the case is remanded back to learned Trial Court and consequently, learned trial court shall proceed with the case in accordance with law. Appellant shall continue to pay monthly maintenance as directed by learned trial court. Appellant shall appear before learned trial court on 30.5.2013.
Order Date :- 6.5.2013
Rabindra Kumar
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