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Yogeshwar Prasad Vs. Jyoti Rani Prasad - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtDelhi High Court
Decided On
Case NumberCivil Revision No. 41 of 1979
Judge
Reported inAIR1981Delhi99; ILR1981Delhi359
ActsHindu Marriage Act, 1955 - Sections 24; Code of Criminal Procedure (CrPC) , 1973 - Sections 25
AppellantYogeshwar Prasad
RespondentJyoti Rani Prasad
Advocates: R.L. Tandon,; Harsh Arora,; C.P. Wig and;
Cases ReferredSee Mahinder Singh v. Om Piari
Excerpt:
.....a decree, that spouse will have to be provided with financial resources for prosecuting the application for permanent alimony when the other spouse is opposing the grant of maintenance [mahinder singh v. om piari, 1975 rlr (note) 4 relied on]. section 25 of the act is a continuation of the main proceedings. there is no reason why section 24 should be restricted to the period between the institution of a petition and its termination. proceedings under section 25 are proceedings under the act and the words 'husband' and 'wife' used therein does not exclude ex-spouses. - .....penultimate sentence of the report) that the application under section 25 is an application in the main proceeding for claiming an incidental relief consequent upon granting of the substantive relief by the court. that provides a complete answer to the argument of the petitioner. to my mind section 25 is a continuation of the main proceedings. placement or numbering of the sections or the description of one sent of documents as petitions and the other set as applications can not alter this position. this has been done to avoid any avoidable confusion. i also do not see any reason why section 24 be restricted to the period between institution of a petition and its termination when it is widely worded. there is no doubt that proceedings under section 25 are proceedings under the act and.....
Judgment:

M.L. Jain, J.

(1) The marriage between the parties which took place on March 4, 1960, was dissolved on March Ii, 1977, on accusations of cruelty and desertion leveled by the wife Mrs. Jyoti Rani. She then made an application on May 25, 1977 under Section 25 of the Hindu Marriage Act, 1955 (herein the Act), for permanent alimony. She also made an application under Section 24 of the Act on April 20, 1978, turn maintenance pending the determination of the application under Section 25 and expenses of the prosecution of that application. The petitioner husband raised preliminary objections. He contended that under Section 24. it is the husband and wife who are entitled to such maintenance but after the dissolution of the marriage that relationship had come to an end and thereforee that section is not applicable. It was next contended that the words 'proceedings under this Act' occurring in Section 24 refer only to the proceedings for restitution of conjugal rights, judicial separation, divorce or nullity and the petition under Section 25 did not fall in any of these categories. The learned Additional District Judge by his order dated May 24 1979, rejected these preliminary objections of the petitioner. Hence, this revision.

(2) Along with the aforesaid contentions that were urged before the learned Additional District Judge, it was also submitted here that the respondent wife was carrying on with one Bhagwati Prasad Mandelia; both conspired to dissolve their previous marriages, Bhagwati Prasad Mandelia from his wife Sumitra Mandelia and the respondent from the petitioner. Since the respondent is not leading a chaste life, she will not be entitled ultimately to any maintenance under Section 25 of the Act and thereforee, she is not entitled to any interim maintenance under Section 24 thereof. Her character and conduct has to be taken into consideration even in an application under Section- 24.

(3) I have heard and considered. As regards, the last submission, the conduct of the respondent which will include unshastity, has to be taken into consideration not only at the time of making financial provision under Section 25, but it can also be taken into consideration at the time of grant of interim maintenance. Support for this proposition is available in Prasana Kumar Patra v. Smt. Sureswari Patrani : AIR1969Ori12 . The sole question for decision always in such cases is whether the character and gravity of the conduct were such as would be repugnant to justice to ignore them in determining the provision that was to be made by the other party. But this is a matter which will have to be gone into by the court below. The learned counsel submitted that if ultimately the application of the wife under Section 25 is disallowed, then the grant of interim maintenance for the restitution or refund of which there is no provision, will be a dead and unjust loss. But such grievances cannot be allowed to prevail in interpretation of the provisions of the Act. These are exigencies of making and breaking of matrimonial relationships. Such a situation is inherent even in other proceedings under the Act. Since the husband is vehemently disputing the right to permanent alimony, the wife will be required to fight it equally stoutly and she has to be equipped for that purpose if she has no wherewithal of her own.

(4) The next contentions of the learned counsel for the petitioner are that an interim maintenance under Section 24 of the Act can be granted only in a proceeding under the Act. The Act envisages two periods in the proceedings; (1) duration of the main petition and (2) the period after a decision of the main E petition. Section 24 relates to the first period while Section 25 relates to the second period. That is why Section 24 precedes Section 25. The Act itself treats these periods differently. It is further evident by the selective use of the word 'petition' in relation to the main reliefs and use of 'application' in relation to the rest. That is because the application under Section 25 of the Act is merely ancillary and incidental to the main petition as held in Patel Dharamshi Premji v. Bai Sakar Kanji : AIR1968Guj150 . There is thereforee, no justification for treating it as a proceeding under the Act which is a proceeding initiated on a petition for any of the main reliefs of restitution of conjugal ' rights, judicial separation, dissolution and annulment. Section 24 applies only when the main petition is pending. The incidental and ancillary provisions in Section 25 had to be made because if this were not done, then no maintenance could be claimed except whatever could be claimed under Section 125 Criminal Procedure Code . and Section 18 of the Hindu Adoption and Maintenance Act, 1956. It is thereforee urged that there is a compelling reason for interpreting 'husband and wife' in Section 25 so as to include ex- spouses but there is no such compulsion in respect of Section 24. If the legislature wanted to apply these provisions to former spouses, there was nothing to prevent it from making it specifically clear. The precise argument is that Section 24 is not applicable because the application under Section 25 is not a proceeding under the Act between a husband and a wife.

(5) After careful consideration, I feel, I must up bold the view of the learned Additional District Judge that 'any proceedings under this Act' appearing in Section 24 will cover the proceedings under Section 25 thereof. Section 25 contemplates that an order for permanent alimony can be made at the time of the passing of any decree under the Act or any time thereafter. Now, if a spouse has to make an application after any decree under the Act has been passed and has no sufficient means of his own, such spouse has to be provided for prosecuting the application for permanent alimony when. the other spouses opposes any grant thereof. Any other construction will be narrow and will lead to frustration of the provisions. This is so obvious that no precedent need be cited. Yet there is an authority for this view : See Mahinder Singh v. Om Piari 1975 Rlr (Note 4(3). If it is conceded that the application under Section 25 even in case of dissolution or annulment of marriage can be deemed to be a proceeding between a wife and a husband, as it should, there is no scope for argument that it is not such a proceeding within the meaning of Section 24. In Patel Dharamshi Premji (supra) it was held (vide para 3, page 153, Col. 2, penultimate sentence of the report) that the application under Section 25 is an application in the main proceeding for claiming an incidental relief consequent upon granting of the substantive relief by the Court. That provides a complete answer to the argument of the petitioner. To my mind Section 25 is a continuation of the main proceedings. Placement or numbering of the sections or the description of one sent of documents as petitions and the other set as applications can not alter this position. This has been done to avoid any avoidable confusion. I also do not see any reason why Section 24 be restricted to the period between institution of a petition and its termination when it is widely worded. There is no doubt that proceedings under Section 25 are proceedings under the Act and will be included in 'any proceeding' under the Act. The purpose of using the words husband' or 'wife' is to identify the position occupied by the parties in the main proceedings, and not to exclude ex-spouses.

(6) I thereforee, reject the contentions of the petitioner and consequently his petition. No costs. The parties shall appear before District Judge, Delhi, on February 3, 1981.


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