Madhya Pradesh High Court
Dr. Suresh Kumar Verma vs Smt. Hemlata Verma on 4 August, 2000
Equivalent citations: 2001(1)MPHT384
Author: Dipak Misra
Bench: Dipak Misra
ORDER Dipak Misra, J.
1. Invoking the revisional jurisdiction of this Court under Section 115 of the Civil Procedure Code (for short 'the Code') the husband-petitioner has called in question the legal propriety of the order dated 11-1-2000 passed in Misc. Civil Case No. 6/99 passed by the learned Additional District Judge, Rewa.
2. The facts as have been unfolded are that the marriage between the applicant and the wife/non-applicant was solemnised according to the Hindu rites. The applicant filed an application for judicial separation under Section 10 of the Hindu Marriage Act (hereinafter referred to as 'the Act') and obtained a decree for judicial separation on 24-9-19%. The petitioner endeavoured for restitution of the relationship but as his attempts became an exercise in futility he filed an application under Section 13 of the Act. As the non-applicant did not appear before the Trial Court on the dates fixed, an ex parte decree for divorce was passed on 10-3-1999. After the ex parte decree was passed the non-applicant wife filed an application under Order 9 Rule 13 of the Code for setting aside the ex parte decree along with an application under Section 5 of the Limitation Act. While this proceeding was pending the non-applicant filed an application under Section 24 of the Act on 6-12-1999 and claimed for grant of maintenance allowance and litigation expenses. The learned Additional District Judge considering the facts and circumstances of the case granted monthly maintenance allowance at the rate of Rs. 2000/- and awarded Rs. 1000/- towards litigation expenses. The said order is the cause of grievance of the present revisionist.
3. Assailing the aforesaid order, it is submitted by Mr. J.L. Mishra, learned counsel for the applicant that a proceeding under Order 9 Rule 13 of the CPC is not a substantive proceeding under the Act and, therefore, the Court below has fallen into error by allowing maintenance allowance and litigation expenses to the non-applicant. Submission of the learned counsel is that the concept of an application under Section 24 of the Act is quite different and the Court below has not kept in view the language employed in the said provision.
Resisting the aforesaid submission Mr. Atulanand Awasthy, learned counsel for the non-applicant has submitted that the wife is entitled to get maintenance in the proceeding under Order 9 Rule 13 of the Code, as neither of the spouses can be allowed to lead the life of a Church mouse. In support of his contention he has placed reliance on the decision rendered in the case Dwarka Prasad Vs. Krishna Devi, 1986 JLJ 179.
Mr. Ravish Agrawal, learned senior counsel who was present in Court at the time of hearing of this application was requested to act as a friend of the Court. He has submitted that the purpose of Section 24 of the the Act is to secure an indigent spouse some financial assistance to prosecute the case. It is his submission that no indigent spouse should be allowed to suffer during the pendency of the proceedings in his or her indigency and hence, the language employed under Section 24 of the Act has to be given a liberal interpretation. The learned senior counsel has placed reliance on the decisions rendered in the case of Yogini Tiwari (Smt.) Vs. Basant Kumar Tiwari, 1996 (1) MPWN 155, Smt. Dipti Ghosh Vs. Swapan Kumar Ghosh, AIR 1991 Calcutta 414 and Madan Lal Vs. Meena, AIR 1988 Punjab & Haryana 31.
4. To appreciate the rival submissions raised at the Bar, it is apposite to refer to Section 24 of the Act. It reads as under :--
"Section 24. Maintenance pendente life and expenses of 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 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 proceedings, 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."
Submission of Mr. Mishra, learned counsel for the applicant is that in any proceeding under this Act has to be construed in a strict sense and has to be interpreted as a substantive proceeding under the Act, such as : a proceeding for divorce, dissolution or restitution of marriages. The learned counsel has commented that the decisions rendered in the cases of dwarka Prasad (supra) and Yogini Tiwari (Smt.) (supra) require re-consideration. In the case of Dwarka Prasad (supra), Dr. T.N. Singh, J, held as under :--
"3. The words and expression underlined in the above extract amply project the object, purport and also the force of the legislative mandate. The object for "maintenance pendente lite" is to achieve a dual purpose, (a) support (subsistence) of the applicant and (b) expenses of the proceeding and indeed or "any proceeding" under the Act. The application cannot be refused but a "reasonable" maintenance can be ordered having regard only to the absence or sufficiency of the "independent income" of the applicant. What is transparently clear is the fact the provision applies to "any form of proceeding whether original, interlocutory, appellate or revisional so long it concerns any right or liability created by or under the Act. The only objection which could be taken to the impugned order and which is now even feably voiced in a subdued tone as the judgment is being dictated (because, earlier a surrender was of the probable or possible defence) is that the order for maintenance which was passed during the pendency of the suit lost its force as a result of the suit being dismissed. This objection is wholly meritless and indeed such an unholy objection is statutorily excluded as explained above. Dismissal of the suit did not absolve the wife of the responsibility or the liability to defend the restoration proceeding initiated to enforce the right to divorce granted under the Act. How can she, therefore, be deprived that benevolent succour of the wholesome provision of Section 24 inasmuch as by defending the restoration application it would be possible for her to avoid the liability or disability that might eventually ensue on the suit being decreed. I prefer to take the view that even if a fresh order is not passed by the Trial Court in the restoration proceeding, it would be well within the jurisdiction of this Court to make a direction in that regard and to restore the order though such a direction may tantamount to restoring the lapsed order, I would like to consider the proceedings in the suit to be continued by the proceeding in the restoration application and now in this Court inasmuch subsequent proceedings arise out of the petitioner's prayer for divorce."
In the case of Yogini Tiwari (Smt.) (supra) this Court expressed the view that Section 24 of the Act is attracted to a proceeding under Order 9 Rule 13 of the Code instituted for setting aside an ex parte decree.
5. A learned Single Judge of Punjab and Haryana High Court in the case of Madan Lal (supra) held as under :--
"4. Further, the object and rationale of Section 24 of the Hindu Marriage Act, 1955 is to provide against lack of financial means operating to the detriment of a party to proceedings under the Act. In other words, to obviate against the financial handicap of a party to the litigation. Seen from this angle too, the provisions of Section 24 of the Act cannot be construed to take an application for setting aside of an ex parte decree under the Act as outside the purview thereof. To hold otherwise, could mean grave prejudice to an innocent party against whom an ex parte decree has been wrongly passed inasmuch as lacking the financial means to challenge such an exparte decree, it may be constrained to suffer it. Nothing could - have been further from the intention of the legislature in this behalf."
A Division Bench of Calcutta High Court in the case of Smt. Dipti Ghosh (supra) expressed thus :--
"Considering the submissions made by both the parties we are of the view that a proceeding under Order 9 Rule 13 of the CPC is a proceeding under the provisions of the Hindu Marriage Act if the proceeding is initiated for setting aside a decree obtained exparte in a proceeding under the said Act. Accordingly in an application under Section 24 of the Hindu Marriage Act is maintainable in such a proceeding. If such an application is filed it is open to the Court to decide the same on merit but it cannot be held that such an application cannot be disposed of till the proceedings under Order 9 Rule 13 terminate and the decree is set aside."
The High Court of Bombay while dealing with the proceeding under Order 9 Rule 4 of the Code relied on a decision of Delhi High Court rendered in the case of Rishi Dev Anand Vs. Smt. Devindar Kaur, AIR 1985 Delhi 40 and the decision of Punjab & Haryana High Court rendered in the case of Madan Lal (supra) and came to the conclusion that an application for maintenance pendents lite during the pendency of an application under Order 9 Rule 4 of the Code is maintainable.
6. After bestowing my anxious consideration to the submissions raised by Mr. J.L. Mishra, I am of the considered view that the language used in Section 24 of the Act has to be construed in a purposive manner so that, the purpose of the Legislature is achieved. It cannot be said that the Legislature while using the words any proceeding under this Act' intended to confine it only to the substantive proceedings. The purpose of the aforesaid provision is to provide financial assistance to the indigent spouses during their indigency. There is nothing under Section 24 of the Act to suggest that there is prohibition against matrimonial Courts from granting maintenance allowance when the main petition is not pending. If such an interpretation is allowed it will only affect the interest of the spouse who is not in a position to maintain himself or herself. A narrower interpretation would frustrate the purpose of the provision.
7. In this context I may profitably refer to Section 21 of the Act. It reads as under :--
21. Application of Act 5 of 1908,-- Subject to the other provisions contained in this Act and to such rules as the High Court may make in this behalf, all proceedings under this Act shall be regulated, as far as may be, by the Code of Civil Procedure, 1908."
By virtue of the aforesaid provision in the Act, it is quite clear that though CPC is applicable subject to the other provisions in the Act but it would engulf in ambit and sweep of a proceeding under Order 9 Rule 13 of the Code and that would eventually attract the provisions of Section 24 of the Act.
In this backdrop I respectfully concur with the view expressed by Dr. T.N. Singh, J. in the case of Dwarka Prasad (supra).
8. Mr. Mishra, learned counsel for the applicant has also challenged the quantum fixed towards the monthly maintenance allowance on the ground that it is excessive. On a perusal of the impugned order it transpires that the Court below on consideration of the facts and circumstances of the case has granted Rs. 2000/- towards monthly maintenance allowance keeping in view the facts and circumstances of the case. The material brought on record justifies the said conclusion. Hence, I am not inclined to reduce the amount. Accordingly the amount fixed by the Court below is affirmed.
9. In the result, the civil revision, being devoid of merit stands dismissed. However, there shall be no order as to costs.
10. Civil Revision dismissed.