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Sohan Lal Vs. Kamlesh - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtPunjab and Haryana High Court
Decided On
Case NumberCivil Revn. No. 2154 of 1983
Judge
Reported inAIR1984P& H332
ActsHindu Marriage Act - Sections 9 and 24; Code of Criminal Procedure (CrPC) , 1973 - Sections 125
AppellantSohan Lal
RespondentKamlesh
Cases Referred and Rita Mago v. V. P. Mago
Excerpt:
.....by way of limitation is in the nature of a restraint on the remedy provided under the act. so viewed two inferences are clear viz., (1) sections 80 and 89 of the act read with rule 85 of the rules make it obligatory for the authorities making the order to communicate it to the applicant concerned and (2) the period of limitation for any appeal against the order is reckonable from the date of such communication of the reasons would imply communication of a copy of the written order itself, a party who knows about the making of an order cannot ignore the same and allow grass to grow under its feet and do nothing except waiting for a formal communication of the order or to choose a tenuous plea that even though he knew about the order, he was waiting for its formal communication to..........of the petition under s. 9, the application under section 24 did not become infructuous.3. the review application was contested by the husband who inter alia pleaded that his wife had filed separate proceedings for maintenance under s. 125 of the cri. p. c., and the application was misconceived. he also pleaded that after the petition under s. 9 had been dismissed, the application under s. 24 could not survive.4. the learned subordinate judge reviewed the order of dismissal and restored the application under section 24 of the act. the husband came up in revision against the said order to this court. at the time of motion hearing, the learned judge found a conflict in decision of this court. consequently, the revision petition was admitted to division bench. this is how the matter is.....
Judgment:

Nath Mittal, J.

1. This is a revision petition directed against the order of the Subordinate Judge 1st Class, Chandigarh.

2. Briefly, the facts are that Sohan Lal petitioner filed a petition under S. 9 of the Hindu Marriage Act (hereinafter called the Act) against his wife for restitution of conjugal rights. The respondent filed an application under Section 24 of the Act for grant of maintenance pendente lite and litigation expenses. After hearing the arguments on the said application, the Subordinate Judge adjourned the same for pronouncement of the order. The husband, before the pronouncement of the order withdrew the petition under Section 9 and consequently it was dismissed as withdrawn. The Court, in view of the dismissal of the petition, dismissed the application under Section 24 as having become infructuous. The wife filed an application for review of the order passed on the application under S. 24 stating that in view of the dismissal of the petition under S. 9, the application under Section 24 did not become infructuous.

3. The review application was contested by the husband who inter alia pleaded that his wife had filed separate proceedings for maintenance under S. 125 of the Cri. P. C., and the application was misconceived. He also pleaded that after the petition under S. 9 had been dismissed, the application under S. 24 could not survive.

4. The learned Subordinate Judge reviewed the order of dismissal and restored the application under Section 24 of the Act. The husband came up in revision against the said order to this Court. At the time of motion hearing, the learned Judge found a conflict in decision of this Court. Consequently, the revision petition was admitted to Division Bench. This is how the matter is before us.

5. The first question that arises for determination is that if the main petition under the Act is decided finally, whether the application for maintenance pendente lite and litigation expenses under S. 24 of the Act, which is pending decision, can continue. Section 24 deals with maintenance pendente lite and expenses of proceedings. It reads as follows:--

''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.

From a reading of the section, it is evident that the Court, during the pendency of the proceedings under the Act, viz., for restitution of conjugal rights, judicial separation, divorce or nullity of marriage, can grant to a spouse having no sufficient come to maintain himself/herself and to meet the necessary expenses of the proceeding, maintenance pendente lite and litigation expenses. The object of enacting the section is that an indigent spouse should not suffer during the pendency of the proceedings because of his/her poverty. It is the duty of the Court to decide such an application expeditiously so that the indigent spouse is not handicapped because of want of funds. However, if the application under S. 24 is not decided during the pendency of the main petition on account of dilatory tactics of the other spouse or for some unforeseen circumstances, the whole purpose of the section stands frustrated in case it is dismissed on the ground that after the decision of main petition it does not survive. Therefore, we are of the view that even if the main petition is decided finally, the application under Section 24 which is pending decision can continue. Similarly, a revision petition filed against an order under Section 24 can continue in spite of disposal of the main petition. In the above view, we are fortified by the following observations of D. S. Tewatia, J. in Amrik Singh v. Smt. Narinder Kaur, AIR 1979 Punj & Hary 211:--

'If the view is that the provisions of Section 24 of the Act were intended by the legislature to enable the indigent spouse to secure wherewithal to defend the proceedings against oneself and to maintain oneself during the pendency of the proceedings, then it is incumbent upon the Courts to take an immediate decision upon the petition under Section 24 of the Act, otherwise the delay would defeat the very purpose. Otherwise in a case where the Court delays the decision on the application till the fag-end of the trial of the main case, right to maintenance and litigation expenses would be denied to the applicant on the specious argument that she had been able to prosecute the litigation for all that long period and had survived and so she was not entitled to favourable order on her application, for the litigation expenses and the interim maintenance under Section 24 of the Act was intended merely to meet the contingency of an indigent spouse not being able to prosecute the case and survive during the pendency of the proceedings which contingency would no longer exist when the proceedings had reached the stage of conclusion though not finally concluded.

I do not think that the interim maintenance and litigation expenses could be denied to the applicant on such a ground when the application had been filed during the pendency of the main proceedings and it is the court which delayed its decision thereon. If the relief could not be denied in the above situation then surely the applicant would not be denied the same relief even after the conclusion of the main petition.'

This judgment was followed in Sudershan Kumar Khurana v. Smt. Deepak, AIR 1981 Punj & Hary 305, and Bhanwar Lal v. Smt. Kamla Devi, AIR 1983 Raj 229. Goka1 Chand Mittal, J. in Sudershan Kumar Khurana's case (supra) observed that Sections 24 and 26 were enacted to provide maintenance to wife and child pendente lite. Generally, the petitions under these sections are decided first and should as a matter of fact be decided before conclusion of main petition. It is further observed that a reading of Sections 24 and 26 does not show that if the main petition under Sections 9, 10, 12 or 13 is disposed of, the jurisdiction of the Court to award maintenance pendente lite by an order to be passed thereafter is taken away. This view was affirmed in Bhanwar Lal's case (supra). The same view was taken by a Division Bench of Mysore High Court in N. Subramanyam v. Mrs. M. G. Saraswathi, AIR 1964 Mys 38. It was held therein that it cannot be said that since the proceedings had themselves terminated, there was no occasion to grant interim maintenance or expense. The right to those items, if established, could not be defeated by allowing time to elapse and the pendency of the proceedings to end. We are in respectful agreement with the observations made in the aforesaid cases.

6. The learned counsel for the petitioner made a reference to Nirmla v. Ram Das, AIR 1973 Punj and Hary 48, C. R. No. 114 of 1979 (Smt. Savitri Piplani v. Subhash Chander), decided on 15th November 1979, C. R. No. 244 of 1980 (Smt. Savitri Piplani v. Subhash Chander), decided on 2lst November, 1980 (reported as 1982 Marriage LJ 108 (Punj),) Smt. Chitra Lekha v. Ranjit Rai, AIR 1977 Delhi 176, and Rita Mago v. V. P. Mago, 1982 Hindu LR 201 (Delhi).

7. In Nirmla Devi's case (supra), the wife made an application under Section 24 on l4th January, 1970, and the main petition was decided by the Court on l9th February, 1970, without deciding the application under Section 24. An appeal was filed to this Court against the dismissal of the application under Section 24. The learned Judge, it appears from the tenor of the judgment, was of the view that the application under Section 24, on account of the decision of the main petition, could not be granted.

8. In Civil Revision No. 114 of 1979 (supra), the trial Court, on an application by the wife, granted her a sum of Rs. 50/- P. M. as maintenance allowance for the children and for her. She came up in revision against the order on the ground that the amount of maintenance was less. During the pendency of the revision petition, the main petition was finally disposed of. The learned Judge observed that the petition had became infructuous. In similar circumstances. Smt. Savitri Piplani again came up in revision (Civil Revision No. 244 of 1980) against the order of the trial Court granting her Rs. 75/- P. M. as maintenance pendente lite but declining to grant her the expenses of the proceedings. Again, during the pendency of the revision petition, the main petition was disposed of by the trial Court. The leamed Judge following the view taken in C. R. No. 114 of 1979 observed that the correctness of such orders was not required to be scrutinised after the proceedings in the main case had concluded. Consequently, the revision petition was dismissed.

9. With great respect to the learned Judges, we are unable to accept the view expressed by them. Consequently, we overrule all these three cases.

10. In Smt. Chitra Lekha's case (AIR 1977 Delhi 176) (supra) the petition was filed by the husband under Section 10(1)(b) of the Hindu Marriage Act for judicial separation. The wife made an application under Section 24 for grant of interim alimony and litigation expenses. Before disposal of the application under Section 24, the husband's petition was dismissed for default. Consequently, the application under Section 24 was also dismissed. An appeal against the order under Section 24 was dismissed observing that no interim alimony and litigation expenses can be granted after termination of the proceedings. The same view was taken in Rita Mago's case (1982 Hindu LR 201) (Delhi) (supra). With great respect to the learned Judges, we have not been ab1e to persuade ourselves to accept that view.

11. The second question that arises for determination is that if the application under Section 24 continues after dismissal of the main petition, whether the applicant is entitled to the maintenance till the date of decision of the main petition or the disposal of the application under Section 24. Section 24 has already been reproduced above. The word 'proceeding' in the section appears at three places and it connotes the main proceedings, that is, proceedings other than proceedings under Section 24. The words 'monthly during the proceedings such sum' are very important. These words show the intention of the legislature that it intended to give maintenance to the indigent spouse till disposal of the main petition. If the application under Section 24 is taken to be included in the word 'proceeding'', anomalous results would follow. Therefore, we are of the opinion that if the application under Section 24 continues after dismissal of the main petition, the applicant is entitled to the maintenance till the date of the decision of the main petition. In Sudarshan Kumar Khurana's case (AIR 1981 Punj & Har 305) (supra), a different view has been expressed by the learned single Judge wherein it was observed that there was no justification for not awarding maintenance pendente lite to the wife even beyond the conc1usion of the main petition till proceedings under Ss. 24 and 26 of the Act were finalised. With great respect to the learned Judge, we do not agree with the above observations. Consequently, we overrule the said case to this extent only, However, it may be reiterated that we have approved the other observations of the learned Judge in this case, as mentioned above.

12. For the aforesaid reasons, we do not find any merit in the revision petition and dismiss the same with costs.

13. Revision Dismissed.


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