1. This appeal arises in the following circumstances; one Muniratnam Naidu, the appellant in this case, filed a petition under Section 10 of the Hindu Marriage Act, 1955 for judicial separation. During the pendency of the petition, Shantamma, the respondent in this case, filed a petition under Section 24 of the Act, claiming maintenance during the pendency of the petition and expenses of the proceedings. The trial Court, on that application, passed an order directing that Muniratnam Naidu, the husband, should pay at the rate of Rs. 20/- per month for maintenance to his wife during the pendency of the proceedings and Rs. 50/- for expenses of the litigation.
2. Against that order, no appeal was preferred by Muniratnam Naidu. Some time later, Muniratnam Naidu did not prosecute the petition he filed, with the result the Court dismissed his petition for default. Thereafter, Shantamma filed Execution petition for recovery of the amount ordered to be paid under Section 24 of the Act in respect of the period during which the petition was pending. Muniratnam Naidu raised several objections, the main objection being that as the petition was dismissed, Shantamma could not execute the order passed under Section 24 of the Act. The learned Civil Judge overruled the objections and directed the execution to proceed. Aggrieved by this order, Muniratnam Naidu has filed this appeal.
3. Mr. Prahlada Rao, appearing for Muniratnam Naidu, relied upon a decision in Shantaram Dinkar Karnik v. Malti Shantaram Karnik. : AIR1964Bom83 , and contended that when once the petition has been dismissed alimony and the costs of litigation ordered to be paid under Section 24 of the Act could not be recovered even though it might be in respect of the period during which the petition was pending. In that case, while dismissing the petition, filed by the husband, under Section 9 of the Act for restitution of conjugal rights, the trial court had directed that the husband should pay at the rate of Rs. 40/- per month to the wife permanently as maintenance. In those circumstances, disapproving what the trial court had done, his Lordship Shah J., observed as follows :
'In my opinion, therefore, there is no doubt that on a true construction of Section 25(1) of the Hindu Marriage Act, 1955, unless and until a decree of any one of the kinds mentioned in Sections 9 to 13 of the Act is passed on a petition either by a husband or a wife, the Court would have no jurisdiction to make any order for alimony.'
This has no relevance to the facts of the present case.
4. Section 24 of the Act provides '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 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.' It is clear from a reading of this Section that maintenance and expenses of litigation could be ordered to be paid to the wife or husband, as the case may be, during the pendency of the proceeding. This provision has been made by the Legislature to see that if the husband or the wife is to contest an application under any of the provisions of this Act and if he or she has no means for his or her maintenance or to meet the cost of the litigation, the other spouse should be ordered to maintain the indigent spouse and also pay the expenses of the litigation. This has been done on considerations of public policy. When once an order has been passed under this section no matter what happens to the petition thereafter, the liability to pay maintenance and expenses of the litigation in respect of the period during which the proceedings were pending, cannot be avoided. The subsequent dismissal of the petition does not exonerate the liability already incurred.
5. For the reasons stated above, there is no merit in this appeal and accordingly it is dismissed with costs.