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Smt. Devki Vs. Purshotam Kewalia - Court Judgment

LegalCrystal Citation
SubjectFamily;Civil
CourtRajasthan High Court
Decided On
Case NumberCivil Misc. Appeal No. 30 of 1970
Judge
Reported inAIR1973Raj2; 1972()WLN750
ActsHindu Marriage Act, 1955 - Sections 24; Code of Civil Procedure (CPC) , 1908 - Sections 151
AppellantSmt. Devki
RespondentPurshotam Kewalia
Appellant Advocate B.L. Purohit, Adv.
Respondent Advocate C.D. Mundra, Adv.
DispositionAppeal allowed
Excerpt:
.....act, 1955 - section 24--order of maintenance pendente lite--whether district court can vary it--no change in circumstances--held, court not to vary the order. (yes);though section 24 confers amplest discretion on the court, such discretion has to be exercised judicially. there will be justification for. varying the order of maintenance pendent lite if there is change in the circumstances, but otherwise there would be no justification.;there was no such change in circumstances as warranted the variation of the order already passed. - industrial disputes act, 1947. section 2(s): [m.s. shah, sharad d. dave & k.s. jhaveri,jj] workman part time employees held, part time employees are not excluded from the definition of workman in section 2(s) merely on the ground that they are part time..........trust of india and rs. 100/-per month as honorarium from all india radio; total rs. 170/- per month. learned counsel proceeded to say that in the subsequent application for reduction of the amount the husband has nowhere alleged that these two sources of income were lost to him. on the other hand, he had only stated that he was no longer the correspondent of hindustan times, indian express or national herald. then the learned counsel drew attention to the fact that the letter produced by the husband purporting to be from the hindus-tan times terminating his employment as correspondent is dated 1-6-1967, while the order for maintenance was passed on 14-10-1967.4. learned counsel for the respondent, on the other hand, argues that a court which has fixed pendente lite maintenance could.....
Judgment:

Kan Singh, J.

1. This is an appeal by a wife directed against an order of the learned District Judge, Bikaner dated 12-8-1969 whereby the learned Judgereduced the amount of interim maintenance granted to the wife under Section 24 of the Hindu Marriage Act. 1955, hereinafter to be referred as the 'Act', from Rs. 70/- per month to Rs. 40/- per month.

2. Shri Purshotam Kewalia, the husband of the appellant had applied for judicial separation against the appellant wife under Section 10 of the Act. On the wife's application under Section 24 of the Act the learned Judge allowed Rs. 70/-per month as interim maintenance to the wife on 30-9-1967. Subsequently on the husband's application the learned Judge reduced the amount of interim maintenance to Rs. 40/- per month only by the order under appeal.

3. A twofold contention is advanced by learned counsel for the ap-pellant in assailing the order of the learned District Judge. In the first place, it is submitted that once an order of interim maintenance has been passed by the learned Judge, he has no jurisdictionto vary that order and reduce the amount. Attention is invited to the provisions of Section 25 of the Act with a view to showing that whereas the power to vary order of permanent maintenance granted has been conferred on a Court, under that section no corresponding provision has been made under Section 24 of the Act and thus the intention of the legislature was mainfest that under Section 24 the Court should not have the power to vary the order of maintenance. In the second place, it is contended that no new events or circumstances had come into existence to warrant the variation of the order for maintenance in favour of the husband. Learned counsel for the appellant maintains that when the order for maintenance was passed on 14-10-67 the husband's income was taken to be Rs. 2,000/- a year and this continued to be so subsequently. He referred me to a review application moved by the husband on 7-11-1967 in which the husband had admitted that he was getting Rs. 70/- per month from the Press Trust of India and Rs. 100/-per month as honorarium from All India Radio; total Rs. 170/- per month. Learned counsel proceeded to say that in the subsequent application for reduction of the amount the husband has nowhere alleged that these two sources of income were lost to him. On the other hand, he had only stated that he was no longer the correspondent of Hindustan Times, Indian Express or National Herald. Then the learned counsel drew attention to the fact that the letter produced by the husband purporting to be from the Hindus-tan Times terminating his employment as correspondent is dated 1-6-1967, while the order for maintenance was passed on 14-10-1967.

4. Learned counsel for the respondent, on the other hand, argues that a Court which has fixed pendente lite maintenance could vary the order and for that there need be no enabling provision like the one contained in Section 25 of the Act. Learned counsel pointed out that after the proceedings had terminated on the disposal of the main petition and when the Court had fixed permanent alimony under Section 25 of the Act. in the absence of any enabling provision the Court would be functus officio and it would not be open to it to vary the order which would amount to a decree and it was for that reason that the legislature had to make a provision to enable the Court to vary the order for perman-nent alimony on account of the change in circumstances. He also drew analogy from the provisions of Section 488, Criminal P. C. whereunder a Magistrate fixing maintenance of a wife or a child could vary the order when there is change of circumstances.

I find force in the submission of learned counsel for the respondent. Section 24 of the Act vests a wide discretion in a Court in the matter of fixation of pendente lite maintenance and costs of the proceedings. The discretion, however, has to be exercised judicially. If there is no enabling provision in the Act for changing such an order by the Court, there is at the same time no disabling provision either and, therefore, the Court can in an appropriate case exercise its inherent powers to vary an order of maintenance provided there is a change in circumstances justifying variation of the order. If that were not so. it may lead to manifest injustice in some cases, for example, at the time of granting of maintenance the other spouse may be having a substantial income and after sometime if that income were to be lost by change of fortune or on account of some accidental causes then the continuance of the same maintenance may result in hardship to the other spouse who is to pay the maintenance. Therefore. I should think that in an appropriate case the Court should be able to exercise its inherent powers under Section 151 Civil procedure Code.

Section 25 of the Act, to my mind, does not afford an analogy for the purposes of interpreting Section 24 of the Act. The opening words of Section 25 of the Act lay down that a Court exercising jurisdiction under this Act may, at the time of passing any decree or at any time subsequent thereto, on application made to it for the purpose Pass an order for maintenance. In the absence of an enabling provision in the case of such a final order the Court would not be empowered to vary such an order even if there is change in circumstances. It was. therefore, necessary for the legislature to have provided that if the Court is satisfied that there is a change in circumstances of either party after it had made an order under the Section it may at the instance of either party vary, modify or rescind such an order in such manner as the Court may deem fit. Therefore, I am satisfied that, the learned District Judge was entitled to vary the order of maintenance pendente lite. However, as I have already observed, though Section 24 confers amplest discretion on the Court, such discretion has to be exercised judicially. There will be justification for varying the order of maintenance pendente lite if there is change in the circumstances, but otherwise there would be no justification.

5. Therefore, the point that now arises for consideration is whether there was any change in the circumstances so as to justify the variation of the order by the learned District Judge. Now perusal of the order of the learned DistrictJudge dated 14-10-1967 does not show what was taken to be the husband's in-come for determining wife's maintenance at Rs. 70/- per month. However, on 7-11-1967 the husband had filed a review application and in paragraph 8 thereof the 'husband had admitted that his monthly income was Rs. 70/- from the Press Trust of India and Rs. 100/- per month as honorarium from All India Radio; total Rs. 170/- per month. This brought his yearly income to Rs. 2,000/-and odd. Then in his application dated 31-7-1969 for reducing the amount of maintenance the husband had stated that he had lost the income that he was having from the Hindustan Times, the Indian Express and the National Herald as a correspondent, but he has nowhere stated that he had lost his income from the Press Trust of India or what he was having from the All India Radio. That being so, there was no such change in circumstances as warranted the variation of the order already passed by the learned Judge.

6. In the result. I allow this appeal, set aside the order of the learned District Judge dated 12-8-1969 and restore his earlier order dated 14-10-1967. The parties are left to bear their own costs of this appeal.


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