1. This appeal by the husband is directed against the order of the Court of the Subordinate Judge, Vizianagaram, directing him to pay the respondent an amount of Rs. 250 /- towards expenses and Rs. 40 /- per month towards maintenance pending the disposal of O. P. No. 20 of 1969 on its file filed by him for restitution of conjugal rights.
2. A suit instituted by the respondent, in the Court of the District Munsif, Srungavarpukota for maintenance under Section 18 of the Hindu Adoptions and Maintenance Act, 1956 is still pending. The appellant filed O. P. No. 20 of 1969 on the file of the lower Court under Section 9 of the Hindu Marriage Act for restitution of conjugal rights. Thereupon, she preferred I. A. No. 70 of 1969 under Section 24 of the Act for awarding interim maintenance and Rs. 500 /- for costs and expenses of the proceeding for restitution of conjugal rights. This application was resisted by the appellant. However, the Court below granted a sum of Rs. 40 /- per month towards interim maintenance and a lump sum amount of Rs. 250 /- towards costs and expenses of the O. P. Hence this appeal.
3. The principal contention of Sri V. Jagannadharao, the learned counsel appearing for the appellant, is that the application for interim maintenance and costs is not maintainable, as the respondent is not entitled to claim maintenance in I. A. No. 70 of 1969 as well as in the suit for the maintenance already filed by her in the Court of the District Munsif, Srungavarapukota. Reliance on Section 10 of the Civil Procedure Code is placed by the learned counsel in support of his contention. The learned counsel appearing for the respondent contended contra.
4. The short question that falls for determination is whether a wife, whose suit for regular maintenance under Section 18 of the Hindu Adoptions and Maintenance Act is pending, is entitled to file an application under Section 24 of the Hindu Marriage Act for interim maintenance during the pendency of the proceeding instituted by her husband for restitution of conjugal rights.
5. In order to appreciate the scope of the question and the respective contentions of the parties, it is necessary to refer to the material provisions of the Hindu Marriage Act, 1955 and Section 18 of the Hindu Adoptions and Maintenance Act. Section 9 of the Hindu Marriage Act ( hereinafter called the Act ) provides for an application to be filed either by the husband or the wife for restitution of conjugal rights, if without reasonable excuse, either of the spouse has withdrawn from the society of the other. A proceeding for restitution of conjugal rights, for judicial separation or for divorce under Sections 9, 10 and 13 receptively is a proceeding under the Act within the meaning of Section 24. Section 24 enables a wife or a husband, as the case may be, to file an application seeking for maintenance during the pendency of any proceeding under the Act and for expenses of the proceeding, if he or she has no independent income sufficient for his or her support. The right provided under Section 24 is a separate and independent one. If the provisions of Sec. 24 are satisfied, the Court is empowered to award an interim maintenance and expenses of the proceeding. The quantum of maintenance and the amount of expenses to be awarded depend upon the income of the applicant as well as the respondent. The Court has to exercise the power vested in it under Section 24 fairly, reasonably and properly. The question of awarding interim maintenance under Section 24 would arise only when the applicant has no independent income sufficient for his or her support and to meet the necessary expense of the proceeding.
6. Section 10 of the Civil Procedure Code prohibits any Court from proceeding with the trial of any suit in which the matter in issue is also directly and substantially in issue in a previously instituted suit between the same parties. If there is already a suit for maintenance in a Court, another suit in some other court between the same parties for the same claim is barred. The intendment of Section 10 is to prohibit any Court from trying a suit in which the matter in issue is directly and substantially in issue in another suit previously instituted in that Court or in another Court. If the provisions of Section 10 are satisfied, the proceedings in one Court can be stayed on the application of the aggrieved party. Provisions of the Section 10 are in no way attracted in the instant case. They shall come into play only when the matter in issue before the District Munsif's Court, Srungavarapukota, in the maintenance suit by the wife is the same as in the present O.P. Even then the appellant can only file an application under Section 10 to stay the proceedings in the Court below. We are not satisfied that Section 10 can be taken advantage of by the appellant herein. The suit filed by the respondent herein against the appellant for maintenance is under Sec 18 of the Hindu Adoptions and Maintenance Act. Therein, maintenance can be granted, if the conditions specified under Section 18 of the Act are satisfied but not otherwise. The cause of action for awarding maintenance in the original suit filed by the respondent is altogether different from the right accrued to her to claim maintenance pending the proceeding instituted by her husband for restitution of conjugal rights. Her right to seek for interim maintenance and for costs of the proceeding arises under Section 24 of the Act, the provisions of which are altogether different from those of Section 18 of the Hindu Adoptions and Maintenance Act. There is nothing in the Act (Hindu Marriage Act) or in the Hindu Adoptions and Maintenance Act which bars the respondent from claiming maintenance under Section 24 of the former Act, if she had preferred a suit for regular maintenance under the latter enactment. Where two different statutes provide specifically for two different claims if the conditions specified therein are satisfied, either of them cannot be denied to the claimant simply on the ground that two reliefs have been claimed at one and the same time. The intendment and object of granting maintenance under Sec. 18 of the Hindu Adoptions and Maintenance Act is different from that of awarding interim maintenance under Sec. 24 of the Act. The maintenance that can be granted under Sect. 24 of the Act is for the period during which the proceeding is pending before the Court. That apart, the right to claim expenses of the proceeding under Section 24 is an independent right given to the party. The very object and purpose of Section 24 appears to be to provide immediate relief for the respondent under the Act, to the claim maintenance and expenses of the proceeding irrespective of other circumstances, as the regular maintenance suit may take considerable time for adjudication.
7. That apart, the procedure prescribed under the Code of Civil Procedure is applicable to the proceedings under the Act, such procedure is only subject to the provisions of the Act and the rules made by the High Court in this behalf. Section 10 of the Civil Procedure Code cannot be used as a plea of defence but it can be invoked by a party only for obtaining stay of a proceeding in Court. Judged from any angle we are satisfied that there in no illegality or just or valid ground for our interference with the order of the Court below. Vide Ramarichpal Singh v. Dayanand Sarup, : AIR1955All309 .
8. We find another formidable obstacle for the appellant to succeed in the appeal. Admittedly the plea based on Sect. 10 of the Civil Procedure Code, was not specifically raised in the lower Court or taken in the memorandum of grounds of appeal. For the first time this has been urged by the learned counsel appearing for the appellant at the time of the arguments. Hence the same cannot be permitted to be raised at this stage.
9. For all the reasons, we are of the firm view that this appeal is devoid of any merit and must therefore fail.
10. In the result, the appeal is dismissed with costs.
11. Appeal dismissed.