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Dilipbhai Chhaganlal Patel Vs. State of Maharashtra and anr. - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtMumbai High Court
Decided On
Case NumberWrit Petn. No. 2903 of 1982
Judge
Reported inAIR1983Bom128; 1984(2)BomCR338
ActsHindu Marriage Act, 1955 - Sections 23 (2) and 24
AppellantDilipbhai Chhaganlal Patel
RespondentState of Maharashtra and anr.
Appellant AdvocateP.R. Vyas and;H.S. Patel, Advs.
Respondent AdvocateA.M. Salik Asstt. Government Pleader and;M.D. Vichare, Adv.
Excerpt:
.....learned counsel appearing for the original respondent husband contended before me that the order passed by the learned judge of the city civil court, bombay is without jurisdiction since the learned judge has failed to follow the mandatory previsions of s. 13. (3) for the purpose of aiding the court in bringing about such reconciliation, the court may, if the parties so desire or if the court thinks it just and proper so to documents, adjourn the proceeding for a reasonable period not exceed fifteen days and refer the matter to any person named by the parties in this behalf or to by any person nominated by the court if the parties fail to name any person with direction to report to the court as to whether reconciliation can be and has been, effected and the court shall in disposing of..........learned counsel appearing for the original respondent husband contended before me that the order passed by the learned judge of the city civil court, bombay is without jurisdiction since the learned judge has failed to follow the mandatory previsions of s. 23(2) and (3) of the hindu marriage act. according to shri vyas unless this procedure was followed it was not open to the court to proceed further in the matter and grant relief under s. 24. he also contended that the attention of the court was specifically drawn towards this provisions of the act and in spite of this the learned judge with making any efforts to bring about reconciliation has passed the order under section 24, which is wholly without jurisdiction.3. on the other without jurisdiction. by shri vichare the learned.....
Judgment:
ORDER

1. The Respondent No. 2 Smt Bhaumati filed a petitioner under Section 13 of the Hindu Marriage Act, 1955, for divorce. She also took out a notice of motion bearing No. 4551 of 1981 for interim alimony under S. 24 of the Hindu Marriage Act. It appears that initially the said notice of motion came to be decided ex parte. However, the said ex parte order was set aside and ultimately after hearing both aside the learned Judge of the City Civil Court, Bombay by his order dated 20th January, 1982 made the notice of motion absolute and granted Rs. 150/- per month as interim maintenance to the petitioner wife form 1st October 1981. He also granted Rs. 500/- towards expenses. It is this order of the City Civil Court, Bombay which is challenged in this writ petition.

2. Shri Vyas the learned counsel appearing for the original respondent husband contended before me that the order passed by the learned Judge of the City Civil Court, Bombay is without jurisdiction since the learned Judge has failed to follow the mandatory previsions of S. 23(2) and (3) of the Hindu Marriage Act. According to Shri Vyas unless this procedure was followed it was not open to the court to proceed further in the matter and grant relief under S. 24. He also contended that the attention of the court was specifically drawn towards this provisions of the Act and in spite of this the learned Judge with making any efforts to bring about reconciliation has passed the order under Section 24, which is wholly without jurisdiction.

3. On the other without jurisdiction. by Shri Vichare the learned counsel for respondent-wife that Section 24 of the not controlled by Section 23(2). In support of his contention he has placed reliance upon the decision of the Delhi High Court in : AIR1977Delhi76 , Mrs. Arti Singh v. Lt Col. Kanwar Pal Singh and : AIR1977Delhi176 , Smt. Chitra Lekha v. Ranjit Rai. Shri Salik the learned Assistant Government Pleader supported the contention raised by Shri Vichare and also placed reliance upon a decision of this Court in AIR 1978 Bom 264, Smt. Gangu Pundlik Waghmare v. Pundlik Maroti Waghmare, Section 23(2) and (3) of the Hindu Marriage Act read as under:--

'23. (2) Before proceeding to grant any relief under this Act, it shall be the duty of the Court in the first instance in every case where it is possible so to documents consistently with the nature and circumstance of the case, to make every endeavour to bring about a reconciliation between the parties;

Provided that nothing contained in this sub-section shall apply to any proceeding wherein relief is sought on any of the ground specified in clauses (ii), clauses (iii), clauses (iv), clauses (v), clause (iv) or clauses (vii) of sub-section (1) of S. 13.

(3) For the purpose of aiding the court in bringing about such reconciliation, the court may, if the parties so desire or if the court thinks it just and proper so to documents, adjourn the proceeding for a reasonable period not exceed fifteen days and refer the matter to any person named by the parties in this behalf or to by any person nominated by the court if the parties fail to name any person with direction to report to the court as to whether reconciliation can be and has been, effected and the court shall in disposing of the proceeding have due regard to the report'.

The comes Section 24 which deals with the maintenance pendente lite and expenses of proceedings, S. 24 reads as under:

'Where in any proceeding under this Act it appear to the court that either the wife or the husband, as the case may be, has no independent income sufficient for her to his support and the necessary expenses of the proceeding it may, on the application of the wife of the husband order the respondent to pay to the petitioner the expense of the petitioner such sum as, having regard to the petitioner own income and the income of the respondent, it may seem to the court to be reasonable'.

4. From the bare reading of these two provisions it is quire obvious that the word 'proceeding' referred to the sub-section (2) of Section 23 deals with the proceeding where substantive relief is asked for by the petitioner under the Act for restitution of conjugal rights, judicial separation, nullity of marriage or divorce etc. In Section 24 the legislature has again used the proceeding under this Act' which clearly indicates that in the substantive proceedings, such as judicial separation, divorce, restitution of conjugal rights or nullity of marriage etc.,. an application for maintenance pendente lite can be filed. In such proceeding a power is conferred upon either party i.e. wife or husband who has no independent income sufficient for her or his support and the necessary expenses of the proceeding, to approach the court for payment of maintenance pendent lite and expense of the proceedings, the nature of proceeding contemplated by Section 24 are obviously summary in nature. No appeal is provided for against the order passed under Section 24, The object behind Section 24 appears to be twofold, firstly to prevent vagrancy resulting from the strained relationship between the husband and wife and secondly to ensure that the indigent litigating spouse is not handicapped in defending or prosecuting the case of want of money. That is why court have always insisted that whenever an application is made under Section 24 it must be disposed of before any further steps are taken in the main case. In a given case, depending upon the facts and circumstance of the case an attempt bring about a reconciliation might become difficult if not impossible, unless some provisions is made for maintenance and expenses. Such a provisions might become necessary even for an active participation in reconciliation proceeding, by the concerned spouse. There in my opinion it cannot be said that the words used in Section 23(2) i. e. 'before proceeding to grant any relief under this Act' will cover the summary proceeding of Section 23 and 24. If the provisions of Section 23 and 24 are read harmoniously it is more than clear that the expression used in Section 24, are read harmoniously it is more than clear that the expression used in Section 24. are read harmoniously it is more than clear that the expression used in Section 24, i. e. where in any proceeding under this Act makes it clear beyond doubt that an application for maintenance pendent lite and expressions of the proceedings could be filed even before the procedure prescribed under Section 23(2) is followed. If it is construed that the order under Section 24 of maintenance pendent lite cannot be passed unless the procedure prescribed by sub-section (2) and (3) of Section 23 is followed then the very purpose and object of Section 24 will be frustrated. Therefore it is not possible of me to accept the contention of Shri Vyas that the impugned order is without jurisdiction.

5. Even otherwise an order passed under Section 24 of the Act. could not be termed as illegal only because the court did not make any endeavour to bring about a reconciliation between the parties, . The provisions of Sc. 23(2) are not absolute in nature. while casting a duty upon the court to make every endeavour to bring about reconciliation between the parties a discretion is left to the court, by the sue of the qualifying phrase, 'where it is possible to do consistently with the nature and circumstance of the case'. Similar provision is made Order XXXII-A of Code of Civil Procedure for the suits relating to matter concerning family. An attempt to bring about a reconciliation is always laudable but failure to do so, before granting maintenance pendente lite, will not vitiate the order, passed under Section 24 of the Act. to say the least, Section 24 is independent of other provisions of the Act,. and is not controlled by Section 23. The order passed under S. 24 is interim in nature and does not amount to final determination of the right or of the case. This incidental and interim direction to pay maintenance pendente lite is not final and comprehensive adjudication of the rights of the parties within the contemplation of Section 23 of the Act.

6. So far as the other contentions raised and sought to be argued before me are concerned, they related to the merits of the matter with which I am not concerned at this stage, Once it is held that the order passed in wholly within the jurisdiction of the trial court then obviously this is not a fit case wherein any interference is called for under the extraordinary jurisdiction of this court under Article 227 of the Court situation of India.

7. Hence this writ petition is summarily rejected.

8. Petition dismissed.


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