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Mahendra Kumar Mishra Vs. Smt. Snehalata Kar - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtOrissa High Court
Decided On
Case NumberCivil Revn. No. 636 of 1982
Judge
Reported inAIR1983Ori74
ActsHindu Marrigae Act, 1955 - Sections 24 and 26
AppellantMahendra Kumar Mishra
RespondentSmt. Snehalata Kar
Appellant AdvocateR.N. Sahu and ;S. Kr. Das, Advs.
Respondent AdvocateN.K. Mishra and ;K.C. Kar, Advs.
Cases ReferredPuran Chand v. Kamala Devi
Excerpt:
.....not. no formal order condoning the delay is necessary, an order of adjournment would suffice. the provisions of limitation embodied in the substantive provision of the sub-section (1) of section 173 of the act does not extend to the provision relating to the deposit of statutory amount as embodies in the first proviso. therefore an appeal filed within the period of limitation or within the extended period of limitation, cannot be admitted for hearing on merit unless the statutory deposit is made either with the memo of appeal or on such date as may be permitted by the court. no specific order condoning any delay for the purpose of deposit under first proviso to sub-section (1) of section 173 is necessary. [new india assurance co. ltd. v md. makubur rahman, 1993 (2) glr 430 and new india..........of the evidence adduced by the parties, the learned subordinate judge directed payment of pendente lite maintenance at the rate of rs. 150/- per month to the wife and at the rate of rs. 80/- per month to the child. a consolidated sum of rs. 300/- was awarded towards expenses of the proceeding. it may be noted here that the petitioner disputed that he had sired the child.3. in this revision the challenge of the petitioner is to the grant of pendente lite maintenance to the child, on a petition filed under section 24 of the act. he has also challenged the quantum of maintenance as excessive.4. mr. sahu, learned counsel for the petitioner, contends that having regard to the provisions contained in section 24, the court was incompetent to grant pendente lite maintenance to the child. he.....
Judgment:
ORDER

R.C. Patnaik, J.

1. This revision by the husband arises out of an order granting interim, maintenance to the wife and the child and the expenses of the proceeding on a petition filed under Section 24 of the Hindu Marriage Act, 1955 (hereinafter referred to as the 'Act').

2. The petitioner filed Original Suit No. 9 of 1981 under Section 13 of the Act for a decree for divorce. During the pendency of the proceeding, the opposite party filed an application for pendente life maintenance for her and her child and expenses of the proceeding. She alleged that the petitioner had neglected her and the child and as she had no income to support her and the child, maintenance pendente lite should be granted. Upon a consideration of the evidence adduced by the parties, the learned Subordinate Judge directed payment of pendente lite maintenance at the rate of Rs. 150/- per month to the wife and at the rate of Rs. 80/- per month to the child. A consolidated sum of Rs. 300/- was awarded towards expenses of the proceeding. It may be noted here that the petitioner disputed that he had sired the child.

3. In this revision the challenge of the petitioner is to the grant of pendente lite maintenance to the child, on a petition filed under Section 24 of the Act. He has also challenged the quantum of maintenance as excessive.

4. Mr. Sahu, learned counsel for the petitioner, contends that having regard to the provisions contained in Section 24, the court was incompetent to grant pendente lite maintenance to the child. He relies on a Bench decision of this Court in the case of Akasam Chinna Babu v. Akasam Parbati, AIR 1967 Orissa 163, where this Court held (para 6):--

'Section 24, however, does not authorise grant of any pendente lite maintenance to the daughter and in terms applies either to the wife or the husband as the case may be......'

Section 24 of the Act is as follows:--

'Maintenance 'Pendente lite' and expenses of the 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.'

5. Mr. N. K. Mishra, learned counsel for the opposite party, however, contends that pendente lite maintenance can be awarded On an application under Section 24 of the Act. He has further that the provisions contained in Section 26 of the Act must not he lost sight of while considering the question of grant of pendente lite maintenance to the child on an application made by the wife or the husband under Section 24. His contention is that the application filed by the wife though labelled as one under Section 24, having regard to the averments, should be treated and construed as one under Sections 24 and 26 of the Act. Mr. Misra further urged that the provisions contained in Section 26 were not brought to the notice of the Bench of this Court which decided Akasam's case (supra) and so, the said decision is not binding. Section 26 of the Act reads as follows:--

'Section 26. Custody of children.--in any proceeding under this Act, the court may, from time to time, pass such interim orders and make such provisions in the decree as it may deem just and proper with respect to the custody, maintenance and education of minor children, consistently with their wishes, wherever possible, and may, after the decree, upon application by petition for the purpose, make from time to time, all such orders and provisions with respect to the custody, maintenance and education of such children as might have been made by such decree or interim orders in case the proceeding for obtaining such decree were still pending, and the court may also from time to time revoke, suspend or vary any such order and provisions previously made.'

6. The requirement of the husbandor the wife would also include the expenses required for the maintenance of the child. The interpretation of the provisions should not be too literal; butpurposive and functional. As the provisions contained in Section 26 would go to indicate, the court is empowered to pass interim orders as it may deem just and proper with respect to maintenance of minor children. Section 26 operates also during the pendency of the proceeding under the Hindu Marriage Act. So, assuming that the provisions contained in Section 24 stricto sensu do not authorize grant of maintenance to child. Section 26 authorises the grant of pendente lite maintenance by way of interim ordersduring the pendency of the proceeding.In my view, if the petition contains theaverments, notwithstanding the factthat the petition for maintenance pendente lite is not made under Section 26, butonly under Section 24, the court is empowered to grant maintenance under Section 24or under Section 24 read with Section 26 ofthe Act.

7. Now coming to the authorities, Sachar, J. in A. Damodar v. Bimala, 1974 Rajdhani LR 180 held:

'Section 24 of the Act by nature is a summary remedy providing for immediate relief. If that be the object, it stands to reason that the husband cannot plead that the order under Section 24 cannot be passed directing maintenance to be paid to the minor child who is admittedly living with the wife. The word 'wife' or the 'husband' should not be interpreted in such a strict and literal sense as to rule out maintenance for the benefit of the dependent children living with the wife because by the very nature of circumstances, the requirement of wife will include the requirement of minor children dependent on her and living with her.'

In Katamanchi v. Katamanchi, (1974) 2 Andh WR 359, a Division Bench of the Andhra Pradesh High Court held:--

'While granting maintenance pen-dente lite to the wife or to the husband, as the case may be, regard should also be had to Section 26. When the wife makes an application under Section 24 of the Act to the Court for the grant of interim maintenance to the children also, the Court can grant the relief to the children also under Section 26 wherever it considers just and proper.'

A Division Bench of the Punjab and Haryana High Court in Usha v. Sudhir, Kumar, 1975 Hindu LR 1 held:

'On an application under Section 24 filed by the wife, the maintenance to the children living with the wife can also be granted.'

8. It may be noted that the application in Andhra Pradesh case was made Under Section 24. So, their Lordships held that if the averments be there, recourse may be had to Section 26. If authority is to be sought, the same lies entrenched in Section 26.

In Thimmappa v. Nagaveni, AIR 1976 Kant 215, Venkateswami, J. observed (at p. 217):

'......When a wife claims maintenance and she has children to support, any interim maintenance to wife alone is meaningless if it does not provide for the maintenance of children also......'

In Narendra Kumar v. Saroj, AIR 1982 Andh Pra 100, a Division Bench of the Andhra Pradesh High Court held (para 15):

'......The interim order passed under Section 26 would obviously be similar to the one under Section 24 in relation to the wife or the husband. The contention of Mr. Ugle learned counsel for the husband that no order awarding maintenance to the child could be granted under Section 24 of the Act, does not merit acceptance having regard to the specific provision contained in Section 26 of the Act.......'

9. Being of the view that the provisions contained in Sections 24 and 26 are beneficial provisions and literal interpretation would be unsound, I hold that on an application claiming maintenance for the husband or the wife, as the case may be and for the child, maintenance can be granted to the child howsoever labelled the petition may be. The substance matters, not the form. If there be authority under the provisions, there is end of the matter.

10. The next question is the effect of the Division Bench decision of this Court in Akasam's case (AIR 1967 Orissa 163) (supra). Unfortunately, the attention of the Division Bench was not drawn to the provisions contained in Section 26 of the Act. I have no doubt in my mind that the Bench would not have refused maintenance to the child if the provisions contained in Section 26 of the Act had been brought to its notice. If the application was labelled as one under Section 24, the present to (sic) the necessary averments claiming maintenance for the child, the same can be treated, as one under Sections 24 and 26 of the Act.

11. Regarding the binding nature of precedents, we get the principle from Halsbury's Laws of England, Third Edition, Vol. 22, para 1687, pages 799-800 which has been cited with approval by the Supreme Court in Jaisri Sahu v. Rajdewan Dubey, (AIR 1962 SC 83). The exception is:

'The court is not bound to follow a decision of its own if given per incuriam. A decision is given per incuriam when the court has acted in ignorance of a previous decision of its own or of a court of a co-ordinate jurisdiction which covered the case before it, or when it has acted in ignorance of a decision of the House of Lords. In the former case, it must decide which decision to follow, and in the latter it is bound by the decision of the House of Lords. A decision may also be given per incuriam when it is given in ignorance of the terms of the statute or of a rule having the force of a statute.'

12. As I have observed that the provisions contained in Section 26 were not brought to the notice of the Division Bench, the said authority is not binding oh me. It is worthwhile to note that the decision in Akasam's case (AIR 1967 Orissa 163) has not been followed in Katamanchi's case and Thimmappa's case (AIR 1976 Kant 215) on the ground that the provisions contained in Section 26 were not brought to the notice of the Court.

13. With respect I cannot follow the view expressed in the case of Bankim v. Anjali (AIR 1972 Pat 80) and the view taken by the Jammu and Kashmir High Court in Puran Chand v. Kamala Devi (AIR 1981 J and K 5) inasmuch as the attention of the Benches deciding the said cases were not drawn to Section 26.

The objection raised by the petitioner that the learned Subordinate Judge had no jurisdiction to grant maintenance to the child, therefore, fails.

14. The next question is regarding quantum of maintenance. After strenous argument, both parties agree that the maintenance awarded to the child may be reduced by Rs. 30/-. So, the order granting maintenance to the child is modified. The child would be entitled to maintenance at the rate of Rs. 50/-per month instead of Rs. 80/- as granted by the learned Subordinate Judge. Maintenance, granted to the wife stands.

With the aforesaid modification, the revision is dismissed. In the circumstances, there would be no order as to costs.


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