Skip to content


Chuni Lal Gulati Vs. Krishana Rani - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtPunjab and Haryana High Court
Decided On
Case NumberCivil Revn. No. 1277 of 1982
Judge
Reported inAIR1983P& H241
ActsHindu Marriage Act - Sections 24, 25, 26, 26(2) and 28(2)
AppellantChuni Lal Gulati
RespondentKrishana Rani
Cases ReferredIn Yogeshwar Prasad v. Jyoti Rani
Excerpt:
.....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. - air 1968 guj 150. that the proviso for permanent alimony is really incidental too the granting of a decree for judicial separation, divorce or annulment of marriage and that the also appears to be clearly the position if we look at the language of s. 10. the last contention of the leaned counsel for the petitioner is that the district judge at best should have allowed the maintenance......pendente lite and litigation expenses. she alleged that she had been paid maintenance in the divorce proceedings up to june 5, 1981, she, therefore, claimed litigation expenses and maintenance pendente lite with effect from june 6, 1981. the district judge vide order dated april 30, 1982 allowed rs. 250/- per month as maintenance pendente lite with effect from 6-6-1981 and rs. 400/- as litigation expense. it is against this order that the present revision is directed.3. the learned counsel for the petitioner has argued that maintenance pendente lite and litigation expenses under s. 24 of the act cannot be allowed in proceedings for permanent alimony under s. 25 of the act. the contention of the learned counsel for the respondent is that the maintenance pendente lite and litigation.....
Judgment:
ORDER

1. Chuni Lal petitioner obtained a decree for divorce against Krishna Rani respondent on Oct. 11, 1979 from the Court of the District Judge, Chandigarh. On Oct. 17. 1979 the respondent moved an application in the same Court under S. 25 of the Hindu Marriage Act (hereinafter 'the Act') for permanent alimony. In the meantime the respondent had filed an appeal against the decree of divorce dated Oct. 11, 1979 passed against her. The petitioner appeared in Court in proceedings initiated under S. 25 of the Act and raised on objection that the claim for permanent alimony was pre-mature in view of the appeal filed by the respondent against the decree for divorce.

The proceedings under S. 25 of the Act were stayed till the disposal of appeal filed by the respondent against the decree of divorce. The appeal filed by the respondent against the decree of divorce was dismissed. Her letters Patent Appeal was also dismissed on Aug. 21, 1981, On Nov 6. 1981. The respondent submitted an application in the Court of District Judge for the restoration of the proceedings under S. 25 of the Act which had been stayed. A notice was issued to the petitioner who appeared in Court on Mar. 29, 1982 and opposed the restoration of the proceedings under S. 25 of the Act. The District Judge, however, restored the proceedings.

2. On April 21, 1982 the respondent filed an application under Section 24 of the Act for maintenance. Pendente lite and litigation expenses. She alleged that she had been paid maintenance in the divorce proceedings up to June 5, 1981, She, therefore, claimed litigation expenses and maintenance pendente lite with effect from June 6, 1981. The District Judge vide order dated April 30, 1982 allowed Rs. 250/- per month as maintenance pendente lite with effect from 6-6-1981 and Rs. 400/- as litigation expense. It is against this order that the present revision is directed.

3. The learned counsel for the petitioner has argued that maintenance pendente lite and litigation expenses under S. 24 of the Act cannot be allowed in proceedings for permanent alimony under S. 25 of the Act. The contention of the learned counsel for the respondent is that the maintenance pendente lite and litigation expenses can be ordered to be paid in terms of S. 24 of the Act in proceedings under S. 25 of the Act.

3A. Section 24 of the Act reads :

'Where in any proceeding under this Act it appears to the Court that either the wife or 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.'

4. It is evident that the provisions contained in S. 24 of the Act can be invoked in any proceeding under he Act.' The contention of the learned counsel for the petitioner is that the proceedings under S. 25 of the Act are not 'proceedings under the Act', whereas the learned counsel for the respondent has argued that the proceedings under S. 25 of the Act for permanent alimony being in the nature of continuance of the divorce proceedings initiated by the petitioner shall be deemed to be context of S. 24 of the Act.

5. It has been held in Patel Dharamshi Premji v. Bai Sakar Kanji. AIR 1968 Guj 150. That the proviso for permanent alimony is really incidental too the granting of a decree for judicial separation, divorce or annulment of marriage and that the also appears to be clearly the position if we look at the language of S. 25 of the Act. S. 25 contemplates the making go a provision for permanent alimony at the time of passing the decree or at any time subsequent thereto and it is, therefore, evident that the provision for permanent alimony is something which follows upon the decree granting substantive relief and incidental to it.

6. In Yogeshwar Prasad v. Jyoti Rani, 1982 Hindu LR 169: (AIR 1981 Delhi 99), an argument similar to that was raised by the learned counsel for the petitioner and it was replied in the negative. It was held that if it is conceded that the application under S. 25 even in case of dissolution or annulment of marriage can be deemed to be a proceeding between a wife and a husband a sit should. There is no scope for argument that it is not such a proceeding within the meaning of S. 24, It was further held that proceedings under S. 25, and its continuation of the main proceedings.

7. The learned counsel for the petitioner has laid great stress on S. 28(2) of the Act in support of his contention that the proceedings under S. 25 are not proceedings under the Act. S. 28(2) of the Act reads:

'28. (2) Orders made by the court in any proceeding under this Act, under S. 25 or S. 26 shall. Subject to the provisions of sub-section (3), be appealable if they are not interim orders. And every such appeal shall lie to the court to which appeals ordinarily lie from the decisions of the court given in exercise of its original civil jurisdiction.'

8. Section 26(2) of the Act if read in isolation does give an impression that its construction suggestive that proceeding under the Act'. It would however, be wrong to reply exclusively on the construction of S. 28(2) for recording a finding that Section 24 has no application to proceedings under S. 25 of the Act. In view of the fact that the provision for permanent alimony is incidental to the granting of a decree for divorce etc. and the proceedings under S. 25 are in nature of continuation of the main proceeding, it would be just to hold that proceedings under Section 25 are proceedings under the Act' in the context of the application of S. 24 thereto.

9. The learned counsel for the petitioner has argued that the maintenance pendente lite at the rate of Rs. 250/- per month allowed to the respondent is excessive in view of the fact that the income of the petitioner is about Rs. 1000/- per month and the he has to support his mother. Three College/School going children and newly wedded wife. I am not impressed by this contention. The respondent was allowed maintenance pendente lite in the divorce proceedings at the rate of Rs. 200/- per month up to June 5, 1981, It is a matter of common knowledge that the cost of living has since increased. Keeping in view the income of the petitioner with exercised by the District Judges in fixing the maintenance pendente lite at Rs. 250/- per month for the respondent does not merit interference.

10. The last contention of the leaned counsel for the petitioner is that the District Judge at best should have allowed the maintenance. Pendente lite with effect from April 21, 1982 when the respondent moved an application under S. 24 of the Act and not with effect from June 6, 1981. This contention is also without force. The respondent had moved an application for permanent alimony on Oct. 17, 1979. The petitioner put in appearance on Mar 3, 1980 and on his objection on Mar 3, 1980 and on his objection the proceedings were stayed. The respondent was paid maintenance pendente lite in the divorce proceedings up to June 5, 1981. The proceedings under S. 25 are in the nature of continuation of the main proceedings. It being so, the District Judge rightly exercised the discretion in allowing the maintenance pendente lite with effect from June 6, 1981.

11. In the result the revision fails and is dismissed with no order as to costs.

12. Revision dismissed.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //