Punjab-Haryana High Court
Mohinder Kaur vs Gobind Singh on 9 May, 1989
Equivalent citations: I(1990)DMC292
JUDGMENT M.S. Liberhan, J.
1. This revision petition arises out of an order of the District Judge declining the interim maintenance to the petitioner under Section 24 of Hindu Marriage Act, 1955 (for short 'the Act').
2. The short facts are that the respondent filed a petition under Section 13 of the Act claiming divorce from the petitioner on the ground of desertion. The petitioner appeared and claimed maintenance of Rs. 800/-per month and Rs. 1500/ as litigation expenses contending that she had no independent source of income sufficient to maintain her. The respondent was stated to be owning 22 Killas of land and having income from tailoring business. In proceedings under Section 125 of the Code of Criminal Procedure (for short 'the Code'), Rs. 100/- per month were granted to the male child of one year old and maintenance was refused to the petitioner on the ground that it was she who had refused to live with the respondent without reasonable cause.
3. The District Judge granted Rs. 300/- as the litigation expenses and refused to grant the maintenance in view of the order passed under Section 125 of the Code declining the maintenance to the petitioner.
4. The counsel for the petitioner contends that the order under Section 125 of the Code is not a relevant consideration for declining the maintenance under Section 24 of the Act as the objects under Section 125 of the Code are different than the ones under Section 24 of the Act. It is contended that the object under Section 24 of the Act is to save a party from his inability to conduct the proceedings on account of his having no independent income. The counsel further relies on Surjit Kaur v. Tirath Singh, 1978 (1) Marriage Law Journal 47 and Smt. Mohinder Kaur v. Vakil Chand, 1982 (V) Marriage Law Journal 188.
5. In Surjit Kaur's case (supra) it has been observed :
"A plain reading of the provision of Section 24 of the Hindu Marriage Act, 1955, shows that the only condition precedent for the grant of maintenance pendente lite to any of the parties to a proceeding under the Act is that the applicant has no independent income sufficient for his or her support. If it is found that the applicant has sufficient income for his or her support, no amount can be allowed as maintenance under Section 24 of the Act. If, however, it is found that the applicant either has no independent income or his or her income is not sufficient for his or her support, the Court is duty-bound to allow his or her suitable maintenance pendente lite."
6. It has further been observed that the remedy under the Code and that under the Act is independent and is not relevant to each other.
7. In Smt. Mohinder Kaur's case (supra) it has been observed :
"The main object underlying Section 24 of the Act is that neither party may suffer by his or her inability to conduct the proceedings for want of money or expenses (Dr. Yoginder Pal Soni v. Smt. Padma Soni, 1970 PLR 878). The jurisdiction to pass an order under Section 24 arises as soon as any proceeding is instituted under the Act in the Court and lasts so long as the proceeding is pending. This provision, however, is not meant to give full and final maintenance to the party concerned because order under this Section can be passed only if the party concerned had no independent income sufficient for his or her support during the proceedings and to defray the litigation expenses. All this is only by way of an interim measure."
Section 125 of the Code provides as under :--
"Order for maintenance of wives, children and parents--(1) If any person having sufficient means neglects or refuses to maintain--
(a) his wife, unable to maintain herself, or
(b) his legitimate or illegitimate minor child, whether married or not, unable to maintain itself, or
(c)xx xx xx xx
(d) xx xx xx xx a Magistrate of the First Class may, upon proof of such neglect or refusal, order such person to make a monthly allowance for the maintenance of his wife or such child, father or mother, at such monthly rate nor exceeding five hundred rupees in the whole, as such Magistrate thinks fit, and to pay the same to such person as the Magistrate may from time to time direct.
(2)xx xx xx xx xx (3)xx xx xx xx xx (4)xx xx xx xx xx (5)xx xx xx xx xx." Section 24 of the Act reads as under :--
"24. Maintenance pendente lite 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 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."
8. It would be obvious by reading of the two Sections that neglect by a spouse or refusal to maintain the spouse is one of the essential ingredients while granting or declining maintenance under Section 125 of the Code. It is not the condition precedent under Section 24 of the Act. Apart from this, the maintenance granted under Section 24 of the Act is only an ad hoc arrangement to provide sufficient funds and means to the spouse having no means during the pendency of the proceedings under the Act, and lasts so long as the proceedings are pending in Court.
9. The facts and circumstances of this case are squarely by Surjit Kaur's case (supra).
10. In order to give a reasonable opportunity of defence to a spouse having no independent income sufficient for his or her maintenance, a right has been conferred under Section 24 of the Act to seek adequate amount of maintenance during the pendency of the litigation.
11. The counsel for the respondent states that the case be remanded to the District Judge in order to determine the quantum of maintenance. I would have agreed for the same, but these are summary proceedings and very object of the provisions of Section 24 of the Act shall stand frustrated if the case is remanded to the trial Court for determining the maintenance as it would result in undue delay while the Act provides disposal of proceedings preferably within six months.
12. In order to finally dispose of the matter, I have been taken through the application under Section 24 of the Act filed by the petitioner as well as the reply to the same filed by the respondent, ft has been averred in the application that the respondent owns 22 Killas of agricultural land and has an income from tailoring business amounting to rupees one lac apart from the income from buffaloes, tractor, trolley etc. The respondent has merely denied the said allegations though not specifically. Further the denial of the allegations has been verified on the basis of his belief only.
13. It is not disputed that Rs. 100/- per month have been granted to the minor child by the trial Court which order has become final inter se the parties having not been challenged. Since it is the duty of the respondent to maintain the wife, keeping in view the status of the parties, the respondent being admittedly an agriculturist, I award Rs. 300/- per month as maintenance pendente lite to the petitioner from the date of the application.
14. It is not disputed that the petitioner is living at Ludhiana and she has to contest the proceedings at Bathinda. A nominal amount of Rs. 300/- has only been awarded as litigation expenses which may not even suffice for her travelling for contesting the litigation on numerous dates to be attended in the original proceedings. While awarding the litigation expenses practical view should be taken. It would be reasonable to assess the litigation expenses at Rs. 1000/-. I accordingly award Rs. 1000/- as the litigation expenses.
15. At this stage the counsel for the respondent states that since litigation expenses assessed at Rs. 300/- were paid in Court and had been accepted without protest, the same cannot be varied.
16. The objection has got no force in view of the fact that even after the acceptance of the litigation expenses, the petitioner is at liberty to apply for variation/enhancement of the litigation expenses as well as maintenance during the pendency of the litigation. Since the order does not attain finality and can be varied during the pendency of the litigation, the acceptance of the litigation expenses without protest loses its significance.
17. In view of my observations made above, the revision petition is allowed.