Himachal Pradesh High Court
Mrs. Rajni Abrol vs Adarsh Abrol on 27 April, 1989
Equivalent citations: AIR1990HP86
JUDGMENT N.M. Kasliwal, C.J.
1. On the request made by the learned counsel for both the parties, arguments were heard on the merits of the main appeal.
2. Mrs. Rajni Abrol, wife of the respondent Shri Adarsh Abrol, has filed the present appeal under Section 28 of the Hindu Marriage Act, 1955 (hereinafter referred to as the Act), against the order of Addl. District Judge (II) Shimla dated July 21, 1988. A preliminary objection was raised on behalf of the respondent that no appeal is maintainable against the impugned order, which was passed under Section 24 of the Act. With regard to this objection, Mr. Sood, learned counsel for the appellant, submitted that this appeal may be treated as revision, in case no appeal was maintainable. In view of the above circumstances, this appeal was permitted to be considered as revision and learned counsel for both the parties addressed their arguments treating it as a revision.
3. The short controversy raised in the present case is with regard to the grant of interim maintenance for the minor daughter who is at present in the custody of her mother. A petition for divorce had been filed by the husband on the ground of cruelty against the wife. During the pendency of the petition, an application was submitted on behalf of the wife for the grant of maintenance under Section 24 of the Act. The learned Addl. District Judge took the view that the wife was also an earning member as she was employed as a clerk in the State Bank of India at Shimla and as such she was not entitled to any interim maintenance under Section 24 of the Act. The learned Addl. District Judge also took the view that so far as the minor daughter is concerned, she is not entitled to get any maintenance under the provisions of Section 24 of the Act.
4. Mr. Sood, appearing on behalf of the petitioner-wife, contended that the lower Court committed a material irregularity in the exercise of its jurisdiction in not awarding maintenance to the minor daughter. It was submitted that such maintenance could have been awarded under Section 26 of the Act. In support of the above contention, reliance has been placed on Baboolal v. Smt. Prem Lata, AIR 1974 Raj 93, Dr. D. Thimmappa v. R. Nagaveni, AIR 1976 Kant 215, Mahendra Kumar Mishra v. Smt. Snehalata Kar, AIR 1983 Orissa 74, Monoj Kr. Jaiswal v. Smt. Lila Jaiswal, AIR 1987 Cal 230 and Gulab Chand v. Sampan Devi, AIR 1988 J & K 22. It was also argued that the husband was working as an Auditor in the office of the Accountant General, at Shimla and getting a salary of Rs. 1943/- per month and as such he was liable to pay maintenance for the minor daughter.
5. On the other hand, Shri Rajeev Mehta, appearing on behalf of the husband contended that no maintenance can be allowed to a minor daughter under the provisions of Section 24 of the Act. It was also submitted that no application was filed under Section 26 of the Act before the lower Court and no argument was raised for treating the application under Section 26 of the Act and as such the lower Court did not commit any error of jurisdiction in passing the impugned order. Reliance in support of his contention was placed on Akasam Chinna v. Akasam Parbati, AIR 1967 Orissa 163, Bankim Chandra Roy v. Smt. Anjali Roy, AIR 1972 Patna 80 and Puran Chand v. Mst. Kamla Devi, AIR 1981 J & K 5. In the alternative, it was also argued by Mr. Mehta that even if this Hon'ble Court may be inclined to take the view that interim maintenance could be awarded to the appellant for the maintenance of the minor daughter, the case should be remanded back as the husband was always ready and willing to keep the minor daughter with him. As the custody of the minor daughter was wrongly and unlawfully denied by the wife herself, as such she was not entitled to claim any maintenance for the minor daughter.
6. I have given my careful consideration to the authorities cited at the Bar. So far as the Orissa and J.&K. High Courts are concerned, their view taken in the earlier cases has not been approved by the later decisions of those High Courts. Mahendra Kumar Mishra v. Smt. Snehalata Kar, AIR 1983 Orissa 74 (supra) and Gulab Chand v. Sampati Devi, (AIR 1988 J&K 22) (supra) have already distinguished the earlier cases of those High Courts on which reliance had been placed by Shri Rajeev Mehta and in the later cases a view has been taken that interim maintenance can be awarded to the minor children under Section 26 of the Act. Calcutta, Rajasthan and Karnataka High Courts have also taken the view that such interim maintenance can be allowed under Section 26 of the Act, so far as the solitary case of Patna High Court reported in AIR 1972 Patna 80 is concerned, it does not deal with the provisions of Section 26 of the Act at all and the case has been decided on the basis of Section 24 alone. Thus now, majority of the High Courts have taken the view that interim order can be passed for the grant of maintenance of the minor children when it is deemed just and proper under Section 26 of the Act. I see no reason to take a different view. Thus it is held that the lower Court committed a material irregularity in the exercise of its jurisdiction in not considering the question of award of maintenance to the minor daughter under Section 26 of the Act.
7. I see no force in the technical objection that no formal application was filed under Section 26 of the Act inasmuch as the mere mention of a particular section on an application is of no consequence and the application filed under Section 24 could have been considered under Section 26 also.
8. The only controversy which now remains to be considered is whether this Court itself should pass an order regarding the amount of maintenance or the case should be sent back to the lower Court for determining such amount as may be deemed just and proper in the facts and circumstances of the case. Section 26 of the Act reads as under :--
"26. Custody of children, -- In any proceedings under this Act, the Court may, from time to time, pass such interim orders and make such provisions in the decree as it may deem just and proper with respect to the custody, maintenance and education of minor children, consistently with their wishes, wherever possible, and may, after the decree, upon application by petition for the purpose, make from time to time, all such orders and provisions with respect to the custody, maintenance and education of such child ren as might have been made by such decree or interim orders in case the proceedings for obtaining such decree were still pending, and the Court may also from time to time revoke, suspend or vary such orders and provisions previously made."
The above provision clearly shows that the Court can pass such interim orders under this section as the same are considered just and proper with respect to the custody, maintenance and education of minor children, consistently with their wishes, wherever possible. In the present case, the contention of Mr. Sood, appearing for the appellant, is that all the circumstances have already come on record and as such this Court should not remand the case and decide the question of maintenance itself. On the other hand, the contention of Mr. Rajeev Mehta is that the father was persistently making efforts of keeping the minor daughter with him which, according to the learned counsel, was also in the welfare of the minor, but the custody of the minor daughter has not been given without justifiable grounds.
9. The question regarding the custody of the minor daughter depends on various factors and the paramount consideration is always the welfare of the minor. Under Section 26, the Court is required to consider the question of custody as well as education of minor children along with the grant of maintenance if such contentions are raised before the Court. In the facts of the present case, when neither any separate application was filed under Section 26 of the Act nor any argument was made under this section before the lower Court, it would not be proper and just if the respondent-father is not allowed to bring in relevant circumstances in this regard before the Court which may be necessary for the just and proper disposal of the grant of maintenance under Section 26 of the Act. The lower Court would be free to consider this question and pass an appropriate order which may be deemed just and proper with respect to the custody, maintenance and education of the minor children. Mr. Sood contended that admittedly the minor daughter is in the custody of the mother and as such she must be awarded maintenance from the date of the filing of the petition till any case is made out by the father for taking the custody of the minor daughter. The lower Court would be free to pass any interim orders in this regard also as Section 26 of the Act itself empowers the Court to pass interim orders from time to time till such question is finally decided.
10. In the result, this appeal/revision is allowed, the order of the learned Addf. District Judge (II) Shimla dated July, 21, 1988 is set aside and he is directed to decide the matter afresh in accordance with the observations made above. The parties are directed to appear before the lower Court on May 4. 1989.