Gujarat High Court
Chaitanyakumar Harikrishanbhai Bhatt vs Naliniben C. Bhatt on 21 January, 1995
Equivalent citations: (1995)2GLR1525
JUDGMENT R.K. Abichandani, J.
1. The petitioner-husband challenges the order passed below applications Ex. 11 and Ex. 15 in H.M. Petition No. 328 of 1988, by the learned City Civil Court Judge, on 19-3-1991, allowing the application Ex. 11 filed by the respondent-wife and directing the petitioner-husband to pay to the respondent Rs. 250/- per month as interim maintenance for the minor daughter from the date of the petition, i.e., 19-9-1988 till disposal of the petition and Rs. 2,000/- towards expenses for the litigation. The application filed by the petitioner-husband for maintenance at Ex. 15 was dismissed.
2. The petitioner filed a divorce petition against the respondent-wife on the allegations that she treated him with cruelty and that she had illicit relation with other person. A daughter was born to these parties. She was two years of age on the date of the Application Ex. 11 made by the respondent-wife. In the said application she has stated that she was serving at Poona and had to attend the Court off and on for which she had to incur expenses. In the application she prayed for the expenses to the tune of Rs. 3,000/- for the litigation and also separately prayed for maintenance for herself at the rate of Rs. 750/- and for the minor daughter at the rate of Rs. 500/- per month.
3. It was contended on behalf of the petitioner-husband that the respondent was serving as a Lecturer and therefore, she was not entitled to any amount by way of expenses for litigation. It was also argued that in an application made by the respondent-wife under Section 24 of the Hindu Marriage Act (hereinafter referred to as the Act), the Court could not have awarded any maintenance for the minor child. Reliance was placed in support of this contention on the decisions in the cases of Akasam Chinna Babu v. Akasam Parbati and Anr. ; Bankim Chandra Roy v. Smt. Anjali Roy and Puran Chand v. Mst. Kamla Devi .
4. The trial Court found that the respondent was a dog-trainer possessing capacity to earn and he could not claim any alimony from the respondent-wife. As regards the application of the respondent-wife, it was held that there was no direct evidence about her income. However, having regard to the fact that she was a full-time lecturer it was held that she could maintain herself. So far as the prayer for the maintenance of the minor child was concerned, the trial Court awarded Rs. 250/- per month and a sum of Rs. 2,000/- was awarded towards expenses to the respondent-wife.
5. The contention that in the application made by the respondent-wife the Court could not have made an order granting maintenance for the minor child, cannot be accepted for the simple reason that under Section 26 of the Hindu Marriage Act, the Court is empowered from time to time to pass interim orders, inter alia, for maintenance and education of the minor children. Section 26 does not even require any application being made for such purposes and the Court itself can make interim orders for maintenance of the minor children under the said Act. Therefore, even if there was no application made under Section 26 of the Act for maintenance of the minor child, the Court could have validly awarded the maintenance for the child.
6. The application made by the respondent-wife, though purporting to be under Section 24 of the Act, contained an independent prayer for the maintenance of the minor child which clearly means that the power of the Court under Section 26 of the Act for granting interim maintenance for the child was also invoked in the application. Mere non-mentioning of the provision of Section 26 would make no difference. Apart from this, as observed above, even without any application under Section 26 of the Act, the Court is empowered to make suitable interim orders regarding maintenance of a minor child in a proceeding under the said Act. In this view of the matter the above decisions relied upon on behalf of the petitioner cannot assist him.
7. The Court has awarded Rs. 2,000/- for expenses on the ground that the respondent-wife was being dragged from a long distance to attend the Court proceedings which is a costly affair. There was no evidence to show that the respondent-wife had sufficient income not only to maintain herself but also to incur such expenses. If the Court has granted Rs. 2,000/- to the respondent-wife towards expenses, it cannot be said to be unreasonable or illegal order.
In the above circumstances, there is no merit in this Revision Application. This Revision Application is, therefore, rejected. Rule is discharged with no order as to costs.