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Kamala Vs. Shama Rupchand and ors. - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtMumbai High Court
Decided On
Case NumberMisc. (First) Appeal No. 197 of 1956
Judge
Reported inAIR1958Bom466; (1958)60BOMLR633; ILR1958Bom949
ActsHindu Marriage Act, 1955 - Sections 9, 10, 11, 12, 13, 14, 19 and 24; Bombay Hindu Divorce Act, 1947 - Sections 6
AppellantKamala
RespondentShama Rupchand and ors.
Appellant AdvocateD.G. Tankhiwale, Adv.
Respondent AdvocateR.N. Deshpande, Adv.
Excerpt:
.....devi [1957] a.i.r. punjab 85 agreed with. - - in order to decide which of these interpretations is correct, it is necessary to consider the object of the section, which clearly is to ensure that a party to a proceeding does not suffer during the pendency of the proceeding bv reason of his or her poverty......correct, it is necessary to consider the object of the section, which clearly is to ensure that a party to a proceeding does not suffer during the pendency of the proceeding bv reason of his or her poverty. the section provides for the grant of maintenance 'pendente lite and the expenses of the proceeding. the party standing in need of such relief may be either the petitioner or the respondent, and prima facie', there is no reason why the parliament should try to make a distinction when the needy party is the petitioner, who had made the original petition and when the person requiring interim relief is the respondent. the fact that under section 24, relief can be granted to both the wife and the husband indicates that the parliament intended to make no such distinction. a petitioner may.....
Judgment:

1. The appellant is the wife of respondent No. 1. They were married on 18-5-1955. In April 1956 respondent. No. 1 filed a petition under Section 12 of the Hindu Marriage Act, 1955 (No. 25 of 1955), praying that his marriage with the appellant should be declared null and void. During the pendency of this petition, the appellant made an application under Section 24 of the Act, in which she asked for an order directing respondent No. 1 to pay her maintenance at the rate of Rs. 50/-per month and the expenses of the proceedings. This application was opposed by respondent No. 1. It was urged on his behalf that an order under this section can only be made in favour of the petitioner, that is, the party, who had filed the main petition before the Court. This argument urged on behalf of respondent No. 1 was found favour with the learned trial Judge, who accordingly dismissed the application made by the appellant for obtaining interim relief. Against that order, the present appeal has been filed.

2. Section 24 of the Act is as follows: ' '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 respon-dent, it may seem to the court to be reasonable.' The words used in the section are, 'application,' 'respondent' and 'petitioner'. On behalf of the respondents, it has been contended that the words petitioner' and 'respondent' refer to the parties to the main petition made to the Court under Section 12 of the Act. On the other hand, it has been urged on behalf of the appellant that these words respectively mean the person who had made the application under Section 24, and the person opposing this application. In order to decide which of these interpretations is correct, it is necessary to consider the object of the section, which clearly is to ensure that a party to a proceeding does not suffer during the pendency of the proceeding bv reason of his or her poverty. The section provides for the grant of maintenance 'pendente lite and the expenses of the proceeding. The party standing in need of such relief may be either the petitioner or the respondent, and prima facie', there is no reason why the Parliament should try to make a distinction when the needy party is the petitioner, who had made the original petition and when the person requiring interim relief is the respondent. The fact that under Section 24, relief can be granted to both the wife and the husband indicates that the Parliament intended to make no such distinction. A petitioner may institute a proceeding 'bona fide', but may be unable to continue it, owing to his inability to meet the further costs of the proceeding. Similarly, there may be cases, in which the aggrieved party is really the respondent, but in which the proceeding is initiated by the other party in the hope or expectation that he might succeed owing to the inability of the respondent to defend it. Such cases frequently come before the Courts. It is difficult to believe that Parliament intended to give relief only in the first class of cases and made no provision for the other cases. Unless, therefore, the Legislature has shown a clear intention to the contrary, which it has not, it would not be reasonable to confine the relief under this section only to the party, who had initiated the original proceeding before the Court.

3. Under the ordinary Hindu Law, a husband is bound to maintain his wife, whether he possessed property or not: sec paragraph 554 in Sir Dinshah Mulla's Hindu Law, 1952 edition. Section 6 of the Bombay Hindu Divorce Act, 1947, provided that in any suit under that Act, if the wife had not an independent income sufficient for her support and the necessary expenses of the suit, the Court, on the application of the wife, might order the respondentto pay her the expenses ot the suit, and monthly during the suit such sum not exceeding the husband's one-fifth net income as the Court, considering the circumstances of the parties, thought reasonable. This Act of the Bombay Legislature has been repealed by the new Hindu Marriage Act, if the interpretation urged 011 IKD if ot 'tie respondents is accepted, the result will be that in proceedings initiated by the husband, the wife will not be able to claim interim maintenance wrongfully withheld by her husband and will have to file a separate suit in order to recover the maintenance due to her. We very much doubt whether the Parliament, which had before it Section 6 of the Bombay Hindu Divorce Act, intended to bring about this result.

4. The principal argument urged on behalf of the respondents is that the Act generally uses the word 'petition' with reference to the substantive application made to the Court: see for instance Sections 9, 10, 11, 12, 13, 14 and 19. The corresponding word used in Section 24 is 'application'. It has, therefore, been contended that the word 'petitioner' in this section means a person who had filed the main petition before the Court. In this connection, it is necessary to consider the language used in Sub-section (1) of Section 25, which runs as follows:

'Any Court exercising jurisdiction under this Act may, at the time of passing any decree or at any time subsequent thereto, on application made to it for the purpose by either the wife or the husband, as the case may be, order that the respondent shall, while the applicant remains unmarried, pay to the applicant for her or his maintenance and support such gross sum or such monthly or periodical sum for a term not exceeding the life of the applicant as. having regard to the respondent's own income and other property, if any, the income and other property of the applicant and the conduct of the parties, it may seem to the Court to be just, and any sucb payment may be secured, if necessary, by a charge on the immovable property of the respondent.'

The relevant words in this section are the 'applicant' and 'respondent'. The word 'applicant' obviously refers to the person, who has made the application under this section. The respondent must, therefore, mean the person, who opposes this application or against whom an order under this section is sought. There is no sufficient reason why the same meaning should not be given to the word 'respondent' in Section 24 of the Act. Not much significance can, therefore, be attached to the fact that the words used in Section 24 are the petitioner and the respondent, and not the applicant and the opponent. There is also force in the argument advanced on behalf of the appellant that if the intention of the Legislature was that under Section 24 relief should be granted only to the party, who had made the main petition, the language in the relevant portion of the section would have been 'it appears to the court that the petitioner has no indepndent income' and not it appears to the court that either the wife or the husband as the case may be ..... .....has no independent income'. The languageused by the Legislature suggests that its intention was that the party standing in need of relief, whether the husband or the wife, should be able to obtain it, irrespective of the fact whether he or she had initiated the proceeding or not.

5. in our opinion, therefore, the words 'petitioner' and 'respondent in Section 24 of the Act mean respectively the party who had made the application under this section and the party opposing the application or against whom a claim . under thissection is made. This interpretation will carry out the object of the Legislature and should, therefore. I be preferred to the other construction, which has been urged on behalf of the respondents. The view, which we are taking, is also in accordance with that taken by my learned brother in Mangala v. Madhao Ganesh Jog, Civil Revn. No; 183 of 1957, D/- 11-10-1957 (Bom) (A). The Mysore and the Punjab High Courts have also taken the same view; see Nanjappa v. Vimala Devi AIR 1957 Mys 44 and Rameshwar Nath v. Kanta Devi, . Both these are decisions of single Judges, but with respect, we agree with the view taken in these cases.

6. The order passed by the lower Court dismissing the application made by the appellant under Section 24 of the Act is, therefore, set aside. Thelower Court should hear this application on itsmerits and then dispose of it in accordance withlaw. The appellant should get the costs of thisappeal from the respondents.

7. Order accordingly.


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