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Dr. Tarlochan Singh S/O Dr. Sunder Singh Vs. Smt. Mohinder Kaur D/O Ghanya Singh - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtPunjab and Haryana High Court
Decided On
Case NumberCivil Misc. No. 936 of 1961 in F.A.F.O. No. 20-M of 1961
Judge
Reported inAIR1963P& H249
ActsHindu Marriage Act, 1955 - Sections 10, 21 and 24
AppellantDr. Tarlochan Singh S/O Dr. Sunder Singh
RespondentSmt. Mohinder Kaur D/O Ghanya Singh
Appellant Advocate D.R. Manchanda, Adv.
Respondent Advocate Tirath Singh Munjrai, Adv.
DispositionPetition allowed
Cases ReferredIn Mst. Rewati v. Chiranji Lal
Excerpt:
.....[as inserted by act 22 of 2002] & 104:[dr. b.s. chauhan, cj, l. mohapatra & a.s. naidu, jj] writ appeal held, a writ appeal shall lie against judgment/orders passed by single judge in a writ petition filed under article 226 of the constitution of india. in a writ application filed under articles 226 and 227 of constitution, if any order/judgment/decree is passed in exercise of jurisdiction under article 226, a writ appeal will lie. but, no writ appeal will lie against a judgment/order/decree passed by a single judge in exercising powers of superintendence under article 227 of the constitution. - as the litigation is a protracted one, she has stated that she requires the assistance of a good lawyer and would also have to come to chandigarh for the purposes of proper conduct of..........duration of the maintenance order would thus appear to terminate with the termination of the trial proceedings.it is, in my opinion, permissible to presume that in the interest of harmony and certainty the draftsman uses the same words in a section in the same sense unless there is a sufficiently plausible reason to hold to the contrary. no such reason has been suggested on behalf of the wife. the word 'proceedings' occurring more than once in section 24 should, therefore, in my view be held to have been used by the legislature in the same sense with the result that in the instant case the sum of rs. 50/-per month should be held to be payable only during the pendency of the proceedings in the trial court. it is, of course, open to the wife to apply to this court under section 24.....
Judgment:
ORDER

I.D. Dua, J.

1. This application has been filed on behalf of Shrimati Mohinder kaur, respondent in this Court, under Section 24 of the Hindu Marriage Act for expenses of the proceedings and maintenance pendente lite. It is alleged that Dr. Tarlochan Singh filed an application for judicial separation under Section 10 of the Hindu Marriage Act in the Court of Shri Charan Singh Tiwana, Senior subordinate Judge, Amritsar, which was dismissed on 19th November 1960 against which order the present appeal has been preferred by the said Tarlochan Singh. Shrimati Mohinder Kaur petitioning respondent has since been served with a notice of the appeal and has to make arrangements for defending her case. Her only source of income is her salary from Shazadanand Primary School, Amritsar, which amounts to Rs. 607- per month. Having no other movable or immovable property from which she can meet the expenses and live according to her status in me, she has asked for a sum of Rs. 1,000/- as expenses and reasonable monthly maintenance during the pendency of these proceedings.

It has been mentioned that Dr. laricchan Singh was ordered to pay Rs. 200/- as counsel's fee and Rs. 50/-as monthly maintenance during the pendency of the proceedings in the trial Court under Section 21 of The Act. In para 6 it is stated that Dr. Tarlochan Singh, according to his own admission in the proceedings for judicial separation, has been earning not less than Rs. 300/- per month from medical practice and also owns about tour houses in Amritsar. As the litigation is a protracted one, she has stated that she requires the assistance of a good lawyer and would also have to come to Chandigarh for the purposes of proper conduct of these proceedings which would obviously involve a certain amount of expense. Her petition is supported by her own duly sworn affidavit.

2. In opposing this petition on behalf of the husbano, it has been contended that the wife has her own resources from which she can meet the expenses of the appeal and can also maintain herself. In this connection it is note worthy that in the trial Court the learned Senior subordinate Judge ordered Dr. Tarlochan Singh on the 23rd December 1959 to pay maintenance to the wife pendent lite at the rate of Rs. 80/- per month from 28th May 1959 onwards and also to pay Rs. 200/- as expenses of me litigation. The husband came to this Court on appeal against the said order (First Appeal from Order No. 6/M of 1960, and a learned Single Judge of this Court observed that the litigation expenses could not be considered to be either excessive or unreasonable; on the other hand this provision erred on the side of meagreness.

In so far as the question of maintenance was concerned, after considering the means of the husband the amount was reduced to Rs. 50/- per month. This order was passed by D. K. Mahajan J. on 2nd May 1960. It has not been shown on behalf of the husband by any cogent material that the means of the husband have undergone any change or that anything material has happened justifying reduction of the amount fixed by this Court in the previous proceedings. Mere assertion on behalf of the husband during the course of arguments by his counsel that his income has gone down, does not, in my opinion, constitute a sufficiently cogent ground for reducing the amount. It would thus appear that the rate of Rs. 50/- per month cannot be said to be, by any means, excessive.

3. Now so far as the expenses for the present appeal (First Appeal from Order No. 20 M of 1981! are concerned, alter hearing the counsel for the parties, in my opinion, a sum of Rs. 200/- can reasonably be allowed to the wite for the appeal including the expenses for the present petition (Civil Miscellaneous No. 936 of 1961) for which also she had to engage a counsel and spend money in its prosecution.

4. The question with respect to maintenance arises as to from which date the sum of Rs. 50/- per month should be ordered to be paid. It is common ground that maintenance at the rate of Rs. 50/- per month has been paid up to 28th of June 1960. After that date, however, the husband did not care to pay any amount though the proceedings in the Court below terminated as late as 19th November 1960. This would mean that the husband had withheld the payment to the wife in accordance with the orders of this Court for nearly five months during the proceedings in the trial Court. On behalf of the respondent my attention has been drawn to the fact that the wite had unsuccessfully applied for realisation of the arrears on 31st October 1960 in the Court below. This is true but as is clear from the record the learned Judge, instead of deciding that petition with due promptitude, deferred his decision on it till after the termination of the proceedings and then rejected it on the ground that the main proceedings having terminated no order for payment of arrears of maintenance could be made by him. In this connection it would be instructive to draw the attention of the Court below to the following observations by a Division Bench of this Court in Smt. Malkan Rani v. Krishen Kumar, 1960 (62) Pun LR 575: (AIR 1961 Punj 42):

'Now Section 24 of the Hindu Mamage Act empowers the matrimonial Court to make an order for maintenance pendente lite and for expenses of proceedings to a needy and indigent spouse. The object and purpose of this statutory provision obviously is to enable the Court to see that the indigent spouse is put in a financial condition in which the party concerned may produce proper material and evidence in the case the intention of the Legislature in enacting this provision is to see that 3 party is not handicapped in or prevented from bringing all the relevant facts before the Court for decision of the case because of his or her poverty. Now in the Punjab no counsel can appear in Court without previously getting his fee or remuneration. Other litigation expenses have also to be incurred during the proceedings. Similarly pendents lite maintenance allowance is to he utilized during the pendency of the litigation and not afterwards. If these amounts are not made available to the applicant under Section 24 of the Hindu Marriage Act immediately, then its object and purpose will stand defeated. The relations betwen the two spouses in a litigation under: the Hindu Marriage Act are likely to be hestile and the spouse who has to bay litigation expenses is likely to be unwilling to pay these amounts and may even adopt dilatory tactics in the matter. In the circumstances it is obvious that realisation of this amount by taking execution proceedings in accordance with the provisions of the Code of Civil Procedure must plunge the indigent spouse into another lengthy and unpleasant litigation and what is more, the matrimonial Court will find it difficult, if not impossible, to decide the case satisfactorily or exoeditiously. It will result in denial of justice to the person in whose favour the order under Section 24 of the Hindu Marriage Act has been made.'

A little tower down the Bench further observed as follows:

'If the defaulter has moved the matrimonial Court for any relief, then it is an obvious step to adjourn the case or to stay further proceedings till he complies with the orders made under Section 24 of the Hindu Marriage Act. In England the ecclesiastical Courts provided for such a maintenance and for costs of the defence (vide Kemp weich v. Kemp Welch and Crymes, 1910 P. 233). These Courts take adequate steps including an order staying further proceedings in the case to compel the defaulter to comply with such an order. In Ciarke v. Ciarke, 1891 P. 278, the matrimonial Court stayed further proceedings while in Latnam v. Latham and Gethin, (1831) 164 ER 1011, the Courts refused to make a nisi decree absolute. There is no reason why this power cannot be exercised in such circumstances in this country also.'

5. In my view, therefore, the Court below did not realize the importance of the payment of maintenance pen-dente lite to the wife and seriously erred in not insisting Ion payment before finally disposing of the petition under Section 10 of the Hindu Marriage Act. In any case, the order granting maintenance at the, rate of Rs. 50/- per month could also have been executed by the court below by virtue of Section 28 of the Act. In the Division Bench case just quoted, it was ruled that Section 23 gives to a party a right to recover such an amount by taking emulion proceedings but it does not affect the Court's power to exercise its jurisdiction equitably and in such a manner as to prevent abuse of its process. However, since the order dated 19th November 1960 disallowing the wife's prayer has become final, as it was not appealed against, nothing more need be said about it.

6. Regarding the precise question Defora me, on be-half of the wife it has been urged that the amount of maintenance should be ordered to be paid from 28th of June 1980 up to date. It is contended that the appeal being a continuation of the original proceedings, the operation of the order dated 2nd May 1950 continues in spite of the termination of the proceedings in the trial Court and should be ordered to be implemented by this Court in the present appellate proceedings in the same manner in which the Court passing the order would have done. In behalf of the husband, however, Shri Manchanua has con-tended that the previous order only lasted till the termination of the proceedings in the Court of first instance, in support of his contention he has drawn my attention to Mst. Mukan Kanwar v. Ajit Chand, AIR 1961 Raj 51, villere it has been laid down by Modi J. that an order for temporary alimony passed by the superior Court under Section 24 pending the suit of the wife in the trial court enures during the life of the suit in the trial court only and cannot survive it, and in case the wife files an appeal against the decision of the trial court in the suit against her, she must file an independent application for the grant of the relief of alimony which she seeks ouring the pendency of the appeal.

7. I have devoted my most anxious thought to the arguments advanced at the Bar. In Lachmeshwar Prasad Shukul v. Keshwar Lal Chaudhari, AIR 1941 FC 5, it has been observed that under the procedural law of India the hearing of an appeal is in the nature of learnearing, but this observation appears to me to have been made in support of the position that the appellate court is entitled to take into account even facts and events which come into existence after the decree appealed against. Legislative charges, since the decision appealed against had been given, were on the basis of this view taken into account in the reported case. In Mst. Rewati v. Chiranji Lal, AIR 1944 Lah 29, Monroe and Abdur Rahman JJ. ruled mat in India an appeal cannot be regarded to be a re-hearing of the suit Itself, though an appeal may for certain purposes be considered to be a continuation of the suit it may be stated that the learned Judges of the Lahore High Court were not unaware of the decision of the federal court in Lachmeshwar Prasad's case, AIR 1941 SC 5 for that decision seems to have been brought to their notice during the course of arguments. As at present advised, I think the real position is that an appeal is considered to be in the nature of a re-hearing or a Continuation of the suit only for the purpose of moulding the relief to be granted on appeal, and it is only for this purpose that the appellate Court can take into account facts and events which come into existence after the decree appealed against, and indeed the legal position seems to have been so stated by the Supreme Court in Chunilal Khushaldas patel v. H. K. Adhyaru, AIR 1956 SC 655. The Supreme court also, in this connection, relied on the decision of the Federa; Court in Lachmeshwar Prasad's case, AIR 1941 FC 5.

8. But this apart, the precise question which arises for consideration before me is somewhat different. The question posed is: whether the order passed by a learned Single Judge of this Court on 2nd May 1960 on appeal enures during the period of the present appeal as welli Now it is not disputed that the expenses allowed by the earlier order were only for the proceedings in the that Court and they did not cover the expenses for the present appeal proceedings, and, as a matter of fact, the prayer made by the wife in this Court now also appears prima facie to support this view. If, therefore, the proceedings, of which the expenses are to be allowed by the court, are the proceedings in the trial Court only and not of the proceedings on appeal, then the sum payable by way of maintenance 'pendente lite' during the proceedings would similarly appear prima facie to relate and be confined to the proceedings in the trial Court only. The operative duration of the maintenance order would thus appear to terminate with the termination of the trial proceedings.

It is, in my opinion, permissible to presume that in the interest of harmony and certainty the draftsman uses the same words in a Section in the same sense unless there is a sufficiently plausible reason to hold to the contrary. No such reason has been suggested on behalf of the wife. The word 'proceedings' occurring more than once in Section 24 should, therefore, in my view be held to have been used by the Legislature in the same sense with the result that in the instant case the sum of Rs. 50/-per month should be held to be payable only during the pendency of the proceedings in the trial court. It is, of course, open to the wife to apply to this Court under Section 24 read with Section 21 of the Hindu Marriage ACT and Section 107 of the Code of Civil Procedure for maintenance pendente lite in so far as the appellate proceedings are concerned, and indeed the wife has filed the present application for that purpose. The amount fixed by D. K. Mahajan J. affords a safe basis or guide for fixing the same amount now; nothing convincing having been urged against it. The contention that the financial position of the husband has since changed has not been substantiated. Mere statement at the Bar, as already opined by me earlier is not enough.

9. Shri Manchanda has then contended that this amount should only be ordered to be paid from the 2nd of May 1961, the date of her application in this Court, it is emphasised that though her petition in this Court is dated 20th April 1961 it was actually filed in the High Court on 2nd May 1961. On behalf of the wife, except for the submission that the amount should be ordered to be paid with effect from 28th of June 1950, a contention with which I have not been able, as at present advised, to agree, no other date has been suggested from which the payment of the amount of maintenance pendente lite on the present application should be ordered to commence. I would, therefore, direct that Dr. Tarlochan Singh should pay to Shrimati Mohinder Kaur the sum of Rs. 50/-per month with effect from 2nd May 1961 during the pendency of the present appeal (First Appeal from Order No. 20-M of 1961).

10. As laid down in Smt. Malkan Rani's case, 62 Pun LR 575: (AIR 1961 Punj 42), the amount of expenses as well as of maintenance up to date must be paid before the appeal is heard. As soon as the amount has been paid by Dr. Tarlochan Singh to Shrimati Monhinder Kaur, both the parties should inform the office about the payment, and then the appeal should be set down for hearing.

11. For the foregoing reasons this petition is allowed in the terms mentioned above. There would, in the circumstances, be no order as to costs of Civil Miscellaneous 936 of 1961.


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