Calcutta High Court
Monoj Kr. Jaiswal vs Smt. Lila Jaiswal on 23 May, 1986
Equivalent citations: AIR1987CAL230, 90CWN1149, AIR 1987 CALCUTTA 230, (1986) 2 HINDULR 277, (1986) 90 CAL WN 1149, (1986) 2 CAL HN 455, (1986) 2 CURCC 991, (1986) 2 DMC 269
JUDGMENT A.M. Bhattacharjee, J.
1. We have given our anxious consideration to the submissions so fairly and forcefully made by Mr. Banerjee, the learned counsel for the petitioner, but we are satisfied that we cannot but decline to intervene in revision initiated by the petitioner-husband against an order of maintenance pendente lite passed against him in favour of his wife and minor child.
2. The learned Judge having perfect jurisdiction to grant pendente lite maintenance under Section 24 and Section 26 of the Hindu Marriage Act, this is not a case of illegal assumption of jurisdiction within the meaning of Section 115(1)(a) of the Code of Civil Procedure. The learned Judge having exercised that jurisdiction and passed order of maintenance, this is also not a case of non-exercise of or failure to exercise jurisdiction within the meaning of Section 115(1)(b) of the Code. And the learned Judge having considered and assessed the materials on record in coming to his finding and not having acted in breach of any provisions of law and also not having committed any error of procedure, this is also not a case of illegal or irregular exercise of jurisdiction within the meaning of Section 115(1)(c) of the Code.
3. It is true that the learned Judge had before him an application only under Section 24 of the Act for pendente lite maintenance both for the wife and the minor child. It is also true that Section 24, in terms, provides for pendente lite maintenance for the spouse only and not for the children of marriage. But Section 26 invests the Court with full jurisdiction to pass, from time to time, such interim orders for maintenance of minor children as the Court may deem just and proper. It should also be noted that while Section 24 requires for its operation an application from the spouse concerned, the provision of Section 26, so far it relates to interim maintenance, may be invoked even without any application in writing and a formal application in writing is necessary under Section 26 only for awarding maintenance and other reliefs after the decree. The learned Judge, therefore, had perfect jurisdiction to grant pendente lite maintenance to the minor child even without a formal application and, therefore, his granting such interim maintenance even when moved by an application labelled as one under Section 24 only, cannot be branded as without jurisdiction or to involve any jurisdictional question, even though Section 24 does not provide for maintenance for children. As already indicated, when the Court had jurisdiction under Section 26 to grant pendente lite maintenance to the minor child and the court could exercise its jurisdiction even without any formal application, it would be putting too much premium on technicalities to strike down an order for maintenance for the child solely on the ground that the application invoking such jurisdiction quoted a wrong section or did not quote the right section. The tendency of the courts, as pointed out by the Supreme Court in Pratap Singh v. Shri Krishna Gupta, , towards technicalities is to be deprecated because it is the substance that counts and must take precedence over mere form. If in substance the wife has applied for maintenance of the child also and the materials on record also justify such a grant, then the application being labelled as one under Section 24 is only a matter of form and the application could very well be treated as an application for the purpose of Section 26 also, even if an application was necessary for pendente lite maintenance of children under Section 26.
4. It is true that some High Courts have taken the view that while allowing an application under Section 24 of the Hindu Marriage Act, the Court has no power to grant pendente lite maintenance for the minor children and reference in this connection may be made, among others, to a Division Bench decision of the Orissa High Court in Akasam Chinna v. Akasam Parbati, and to a single-Judge decision of the Patna High Court in Bankim Chandra v. Anjali Roy, . We have examined those decisions and we have felt, and this we say with great respect, that these decisions have adopted a rather technical and literal approach and the effect and impact of Section 26 of the Hindu Marriage Act have not at all been considered in these decisions. The single Judge decision of the Karnataka High Court in D. Thimmappa v. N. Nagveni, AIR 1976 Kant 215 is, however, in full accord with our view where it has been held (at 217) that when the wife makes an application under Section 24 of the Act to the Court for the grant of interim maintenance for the children also, the Court can grant the relief to the children also in exercise of its power under Section 26 wherever it considers it to be just and proper. The single Judge decision of the Rajasthan High Court in Baboolal v. Prem Lata, AIR 1974 Raj 93. is also to the same effect where it has been held (at 96) that if a case is made out to that effect, interim maintenance can be granted to the minor children while considering an application under Section 24 by the wife even in the absence of separate application under Section 26 of the Act. We are, therefore, of the view that in granting maintenance to the minor daughter, while disposing of and allowing the application under Section 24 by the wife, the learned Judge has not made any illegal assumption or illegal exercise of jurisdiction to warrant our intervention in revision.
5. One word more. The impugned order is obviously an interlocutory one and now under the proviso added to Section 115(1) of the Code of Civil Procedure by the Amendment Act of 1976, revision against an interlocutory order must satisfy one of the two further conditions contained in the proviso in addition to one of the jurisdictional conditions laid down in Clauses (a), (b) and (c) of Section 115(1). These two alternative conditions are that the interlocutory order must be such that (1) if it had been made in favour of the party applying for revision, it would have finally disposed of the suit or other proceeding or, (2) if allowed to stand, it would cause a failure of justice or cause irreparable injury to the party against whom it was made. We have already indicated that in our view the impugned order of interim maintenance in this case does not satisfy the requirements of any of the Clauses of Section 115(1) and we have also no doubt that it does not satisfy any of the two further conditions laid down in the proviso thereto for a revision against an interlocutory order.
6. We accordingly decline the revision but without any order as to costs.
Sukumar Chakravarty, J.
7. I agree.