S.K. Ray, J.
1. This is an appeal preferred by the husband against an order of pendente lite maintenance passed by the Court in a proceeding for restitution of conjugal rights initiated by the wife. The said proceeding for restitution of conjugal rights has been numbered as O. S. No. 1 of 1967 in the court of the Subordinate Judge, Berhampur. The husband likewise has started a proceeding under Section 13 of the Hindu Marriage Act, 1955, in the said court which has been numbered as O. S. No. 16 of 1967. There is nothing on record to indicate whether the divorce proceeding or the restitution proceeding is earlier in point of time, but that is not material for the purposes of this case.
2. The wife-respondent filed an application under section 24 for interim maintenance and expenses on 15-2-67. The husband-appellant has filed a counter in which he questions the maintainability of the petition on the ground that the Rule 13 of the Rules framed by the High Court of Orissa under section 21 of the Hindu Marriage Act, 1955, has not been complied with and denies the truth of other averments therein for interim maintenance and calls upon the petitioner to give strict proof of the same. That apart, it was further alleged that the wife was never passing her days in poverty, distress and want which have a relevant bearing on the question of quantum of maintenance. Her claim was further resisted on the additional ground that she was leading a loose life thereby disentitling her to any maintenance whatsoever.
3. The learned Subordinate Judge by his order dated 5-10-67 held that the wife-applicant was entitled to interim maintenance which he assessed at Rupees 30/- per month, and also awarded a consolidated sum of Rs. 100/- towards litigation expenses of the present proceeding for restitution of conjugal rights. The fixation of the quantum of maintenance and the litigation expenses was completely subjective as no evidence was adduced by the applicant in proof of her claim of Rs. 60/- per month of maintenance and Rs. 350/- for litigation expenses, as contained in her application.
4. The first point urged is that the petition for ad interim maintenance was not maintainable as the same was not supported by affidavit of the applicant, and therefore, the subordinate judge acted without jurisdiction in entertaining the application and passing orders thereon. The rules framed by the Orissa High Court under the Hindu Marriage Act, 1955, are called the Hindu Marriage and Divorce Rules, 1956, and Rule 13 thereof runs as follows:
'Rule 13. Application for alimony and maintenance:
(a) Every application for maintenance pendente lite permanent alimony and maintenance or for custody, maintenance and education expenses of minor children shall state the average monthly incomes of the petitioner and the respondent, the sources of these incomes, particulars of other movable and immovable property owned by them, the number of dependants on the petitioner and the respondent, and the names and age of such dependants.
(b) Such application shall be supported by an affidavit of the applicant.'
Clause (b) of Rule 13 has obviously not been complied with. That, however, does not affect the initial jurisdiction of the subordinate judge to entertain such application. This is a rule analogous to rules contained in the Code of Civil Procedure providing for presentation of plaints. It is well settled that omission to comply with the requirements of rules provided for presentation of plaints like absence of verification, does not affect jurisdiction of the court. So in my opinion, absence of affidavit of the applicant in her application for interim maintenance does not affect the initial jurisdiction of the Court. Whatever that may be, I am inclined to grant her further opportunity to regularise the matter by giving an affidavit in support of her application.
5. The subordinate Judge was also in error in coming to his conclusion as tothe quantum of maintenance and expenses without any materials on record. Sympathy cannot take the place of proof. Therefore, I am constrained to hold that the subordinate Judge had no materials to come to any conclusion as to the quantum of maintenance and costs which might be awarded to the wife-applicant. The order must, therefore, be set aside.
6. I would allow this appeal, set aside the order of the subordinate Judge, remand the whole matter back to him with the direction that he shall afford an opportunity to the wife-applicant to take steps to conform to Rule 13 of the Hindu Marriage and Divorce Rules, 1956, and thereafter he shall call upon the applicant to adduce such evidence as she may think fit and proper, in support of her plea. The husband must likewise be granted opportunity to adduce any rebutting evidence.
There would be no order for costs.