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Mrs. Sunita Gandhi Vs. Mr. Upinder Gandhi - Court Judgment

LegalCrystal Citation
SubjectFamily;Civil
CourtPunjab and Haryana High Court
Decided On
Case NumberCivil Revision No. 2594 of 1992
Judge
Reported in(1993)105PLR397
ActsHindu Adoptions and Maintenance Act, 1956 - Sections 18; Code of Civil Procedure (CPC) , 1908 - Sections 94 and 115 - Order 33, Rule 1
AppellantMrs. Sunita Gandhi
RespondentMr. Upinder Gandhi
Appellant Advocate Ashok Gupta, Adv.
Respondent Advocate Alka Sarin and; Hemant Sarin, Advs.
Cases ReferredMohan Singh v. Mohinder Kaur
Excerpt:
.....and choose any person arbitrarily for entering into such agreement nor can it discriminate between persons similarly circumstanced. similarly, where breach of contract at hands of state violates fundamental rights of a citizen or its refusal to enter into a contract is contrary to statutory provisions or public duty, judicial review of such state action is inevitable. likewise, if state enters into a contract in consonance with article 299 rights of the parties shall be determined by terms of such contract irrespective of fact that one of the parties to it is a state or a statutory authority. for these precise reasons the equitable doctrine of promissory estoppel has been made applicable against the government, as against any other private individual, even in cases where no valid..........j. 1. this revision petition is directed against the order of the trial court declining to grant interim maintenance to the wife in a suit for maintenance. the husband, prior to these proceedings, had initiated divorce proceedings under section 13 of the hindu marriage act (briefly 'the act'). in those proceedings, in application under section 24 of the act, wife was granted maintenance pendente lite at the rate of rs. 500/- per mensem. this amount was not found to be sufficient by the wife. she filed civil revision no. 700 of 1987 in this court. this court enhanced the maintenance pendente lite from rs. 500/- to rs. 750/- per mensem. subsequently, petition under section 13 of the act was dismissed on merits. husband filed an appeal in his court which was dismissed in limine. according.....
Judgment:

V.K. Jhanji, J.

1. This revision petition is directed against the order of the trial Court declining to grant interim maintenance to the wife in a suit for maintenance. The husband, prior to these proceedings, had initiated divorce proceedings under Section 13 of the Hindu Marriage Act (briefly 'the Act'). In those proceedings, in application under Section 24 of the Act, wife was granted maintenance pendente lite at the rate of Rs. 500/- per mensem. This amount was not found to be sufficient by the wife. She filed Civil Revision No. 700 of 1987 in this Court. This Court enhanced the maintenance pendente lite from Rs. 500/- to Rs. 750/- per mensem. Subsequently, petition under Section 13 of the Act was dismissed on merits. Husband filed an appeal in his Court which was dismissed in limine. According to the counsel for the petitioner, in proceedings under Section 13 of the Act, wife was paid maintenance upto March 1991. Wife thereafter filed a suit in Forma pauperis for maintenance under Section 18 of the Hindu Adoptions and Maintenance Act, 1956 (in short 'the 1956 Act'). Her prayer to sue as an indigent person is being contested by the respondent. During the pendency of the application to sue as an indigent person, another application for ad-interim maintenance was filed. This application, on contest, was declined primarily on the ground that the wife is not entitled to maintenance before a decision is given on her application to sue as an indigent person. This order declining her interim maintenance is being impugned in the present petition.

2. After hearing learned counsel for the parties, I am of the view that the revision petition deserves to succeed. Under Section 18 of the 1956 Act, the wife is entitled to maintenance, this right is given to her because she is a wife. A Division Bench of this Court in Puran Singh and Ors. v. Mst. Har Kaur and Anr.,1 1970 C.L.J. 648 held that 'where the marital status is ad mitted, it is the duty of the husband to maintain the wife, no matter even if she is not prepared to live with him or perform the conjugal duties. It is another matter if she has become unchaste or has remarried. In that event, there is no duty on the husband to maintain her.' Keeping in view the decision of the Division Bench of this Court in Puran Singh's case (supra), the petitioner is certainly entitled to the grant of interim maintenance.

3. Mrs. Alka Sarin, Advocate, learned counsel for the respondent-husband, relying upon a decision of this Court in Mohan Singh v. Mohinder Kaur,2 1977 H.L.R. 268, has contended that during the pendency of the application to sue as an indigent person, no interim maintenance can be allowed. This contention of her does find support from Mohan Singh's case (supra) in which it was held that during the pendency of application to sue as an indigent person, no relief by way of interim maintenance was possible.

4. At the time of decision of Mohan Singh's case (supra) Section 94(e) of the Code of Civil Procedure was not brought to the notice of the learned Judge. Section 94(e) provides that 'in order to prevent the ends of justice from being defeated, the Court may, if it is so prescribed, make such other interlocutory orders as may appear to the Court to be just and convenient.' An application for grant of interim maintenance during the pendency of pauper application is an application for interlocutory order and, therefore, Section 94(e) of the Code of Civil Procedure would be applicable to such a situation. There are no restrictions in the Code regarding passing of such an interlocutory order. In the present case, I find that if interim maintenance is not granted to the wife, it would be denying justice to the petitioner. It is not disputed before me by counsel for the respondent-husband that the wife was allowed maintenance pendente lite at the rate of Rs. 750/- per mensem while proceedings for divorce were pending. According to the counsel for the petitioner, maintenance was paid to the petitioner upto March, 1991, which fact is being disputed by counsel for the respondent. Be that as it may, the present application for grant of interim maintenance was filed in November, 1991. Therefore, the wife would be entitled to interim maintenance from the date of application. In case, any payment under Section 24 of the Act was made, after the filing of the application for grant of interim maintenance, then suitable adjustment would be made by the Court. So far as the amount of maintenance is concerned, this Court in Civil Revision No. 700 of 1987 decided on 16.12.1987, granted maintenance pendente lite at the rate of Rs. 750/- per mensem to the wife. The amount was fixed after taking into consideration the income of the husband. In my view, it would meet the ends of justice if the petitioner is allowed interim maintenance at the rate of Rs. 750/- per mensem from the date of application.

5. Mrs. Alka Sarin, Advocate, for the respondent, has further con tended that the petitioner by making an application to sue as an indigent person is seeking indulgence from this Court. In other words, she is trying to avail concession to sue as an indigent person and, therefore, she is not en titled to double concession. Mrs. Sarin has further contended that first the application for interim maintenance ought to have been decided before taking recourse to the other provisions of the Code of Civil Procedure. I find no force in these contentions. By making an application to sue as an indigent person under the provisions of Code of Civil Procedure, one is not getting a concession from the Court but one is entitled to sue as an indigent person if one can prove that the person suing has no means to pay the court-fee. The Court, on consideration of the evidence, would decide the application. How ever, the Court would not be a silent spectator to allow the wife to remain without maintenance even if in the circumstances of the case, it is required to pass orders for interim maintenance to the wife.

6. Consequently, this revision petition is allowed and the impugned order is set aside with no order as to costs. As a result thereof, application for grant of interim maintenance stands allowed. The wife shall be entitled to interim maintenance at the rate of Rs. 750/- per mensem from the date of application.

7. It is made clear that any observation made herein is meant for the decision of application for grant of interim maintenance and shall not, in any way, be taken into consideration while deciding the suit.

8. Parties through their counsel are directed to appear before the trial Court on 4.6.1993 on which date, the trial Court would fix a date for payment of interim maintenance as allowed by this Court.


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