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Rajambal Vs. Murugappan - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtChennai High Court
Decided On
Case NumberCivil Revn. Petn. No. 3754 of 1983
Judge
Reported inAIR1985Mad284
ActsHindu Marriage Act, 1955 - Sections 24; Code of Civil Procedure (CPC), 1908 - Sections 115
AppellantRajambal
RespondentMurugappan
Appellant AdvocateG. Masilamani, Adv.
Respondent AdvocateC.R. Krishnamurthy, Adv.
Excerpt:
.....petition filled by wife towards grant of interim maintenance and litigation expenses - right of wife for maintenance is incident of status or estate of matrimony - husband bound to defray wife's cost to any proceeding under act and to provide for her maintenance - doctrine of alimony in its strict sense means allowance due to wife from husband on separation has its basis on social conditions - if wife has separate sufficient means for her defense and subsistence she should be entitled neither to alimony nor to costs during proceeding - if husband has neither property nor earning capacity courts not to award any interim alimony - held, petitioner not entitled to maintenance or litigation expenses. - - the revision petitioner cannot join any course like m. 9. the amplest discretion..........business or any other source of income. the respondent has no independent income.7. the right of a wife for maintenance is an incident of the status or estate of matrimony. in general, therefore, the husband is bound to defray the wife's costs of any proceeding under the act and to provide for her maintenance and support pending the disposal of such proceeding. the doctrine of alimony, which expression in its strict sense means allowance due to wife from husband on separation from certain causes, has its basis in social conditions in england under which a married woman was economically dependent and almost in a position of tutelage to the husband and was intended to secure justice to her while prosecuting or defending proceedings under matrimonial law. it is also recognised that when the.....
Judgment:
ORDER

1. This is a Civil Revision Petition filed by the wife Rajambal, petitioner in I. A. No. 1013 of 1982 in M.O. P. No. 14 of 1981 on the file of the Court of the learned. First Additional District Judge, Pondicherry. The application was filed by the revision petitioner herein before the lower Court under the provisions of S. 24, Hindu Marriage Act, 1955, against her husband Murugappan alias Kumaresan praying for Rs. 1000/- towards interim maintenance per month and a sum of Rs. 3,000/- towards litigation expenses. The husband-respondent herein filed an application M.O. P. No. 14 of 1981 before the lower Court for restitution of conjugal rights. The revision petitioner herein had alleged in her petition that her husband has left the marital abode of the revision petitioner herein that subsequently the revision petitioner being driven out from the marital abode, had completed her Plus 2 studies and now has joined M. B. B. S. course in Stanley Medical College, Madras and she has completed first year course and the revision petitioner has no means or any income. It is further alleged by her that the respondent has not returned the jewels and wearing apparels, sarees, etc., till date to her. The revision petitioner finds it very difficult to maintain herself and also defend the legal proceedings instituted by her husband.

2. On the other hand, the case of the respondent-husband Murugappan is that the petition is not maintainable and that the past conduct between the parties should be taken into consideration.' The revision petitioner herein used to leave the company of the respondent very often without any basis and in spite of change of residence to Kathirkamam, the revision petitioner continued. her visits to her parent's house without his knowledge. The revision petitioner left the residence on 3-9-79 and did not come back. The allegation that she was driven away by the respondent is not correct. The revision petitioner cannot join any course like M.B.B.S., and seek assistance of the husband to complete the course under the guise of maintenance. She never sought the consent of the respondent for joining such a course. The maintenance cannot and does not include the full expenses of the college education. The respondent herein is aged only 22 years and he is -a student in the local college and has no occupation. He has no source of income. He does not own any property nor has any income from any property.

3. The revision petitioner herein filed a rejoinder inter alias stating that it is only the respondent who drove her away from the marital abode and he has never taken any steps to know whether she is alive or dead. The respondent has to pay the hostel fees and litigation expenses. The respondent, with intent. to deny the legal maintenance that has to be paid to' the revision petitioner, has chosen to transfer all his business rights to his father. Now the respondent claims that he has no income of his own either to set up a separate family to pay maintenance.

4. The revision petitioner had examined herself as P. W. 1. The respondent had examined himself as R. W. 1. No document was filed before the lower court in this petition. On the point whether the respondent herein is liable to pay interim maintenance and litigation expenses as claimed, the lower court held that it found no reason to grant to the petitioner interim maintenance or litigation expenses during the pendency of the petition for restitution of conjugal rights filed by the respondent. In the result, the petition I. A. 1013/82 was dismissed by the lower court. Aggrieved by the above decision of the lower court, the petitioner has come forward with this Civil Revision Petition.

5. Section 24, Hindu Marriage Act, 1955 (Act No. 25 of 1955) 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.'

6. The evidence of revision petitioner herein as P. W. 1 and that of the respondent as R. W. 1 would disclose that the respondent is the aunt's, son of the petitioner, that they were married when the revision petitioner was awaiting the results of her S. S. L C. examinations and when the respondent was awaiting the results of Pre-University examinations, that the respondent is at present studying M.Sc., in Tagore Arts College and that the revision petitioner is studying in Stanley Medical College, Madras. The revision petitioner lives separately from her husband since September, 1979 and she has never visited the respondent's house till date. She does not know personally the financial position of the respondent. She joined the Medical College without the consent or knowledge of the respondent while the petition for restitution of conjugal rights was pending. It is admitted by P. W. I that her father has been providing her with tuition fees, mess bill and purchase of books. She has stated that she has to spend a sum of Rs. 1,200/ per month for these items. It is relevant in this connection to note that no document was produced to show that the respondent owns any house or runs any business of his own. It is clear from the evidence that he has no independent income. It is in the evidence of R. W. 1 that he is entirely depending upon his father and that he has no property or business or any other source of income. The respondent has no independent income.

7. The right of a wife for maintenance is an incident of the status or estate of matrimony. In general, therefore, the husband is bound to defray the wife's costs of any proceeding under the Act and to provide for her maintenance and support pending the disposal of such proceeding. The doctrine of alimony, which expression in its strict sense means allowance due to wife from husband on separation from certain causes, has its basis in social conditions in England under which a married woman was economically dependent and almost in a position of tutelage to the husband and was intended to secure justice to her while prosecuting or defending proceedings under matrimonial law. It is also recognised that when the 'wife has separate means sufficient for her defense and subsistence she should not be entitled to alimony nor costs during the proceeding and if the husband has neither property nor earning capacity, the courts would not award any interim alimony. It is on these principles that the law relating to matrimonial causes provides for rules for payment of maintenance pendente lite and expenses of proceedings by the husband to the wife.

8. Section 24, Hindu Marriage Act, 1955 adopts the above principles and goes one radical step further when it lays down that any such order can be made not only in favour of the wife but also in favour of the husband. The expressions 'respondent' and 'petitioner' in the section obviously refer to the respondent and petitioner to the interlocutory application for alimony pendente lite and for provision for costs and not to the petitioner and respondent to the substantive petition.

9. The amplest discretion is conferred on the Court and an order for maintenance pendente lite and costs of the proceeding, as the initial words of the section clearly state, can be made in any proceeding under the Act. Of course, the order can be made while the proceeding is pending and not after its termination. Nor can any such order inure after the proceeding has ended.

10. The section is explicit that the making of the order is a matter of discretion with the court and rules that the court may make the order in favour of the wife or the husband as the case may be, where it is shown that such spouse has no independent income sufficient for her or his support and the necessary, expenses of the proceeding. The section also lays down that the amount of interim maintenance that one spouse may be ordered to pay to the other must be such as appears reasonable to the court in the exercise of that discretion and directs the court that in doing so it must have regard to the petitioner's own income and the income of the respondent. Any decision under S. 24, Hindu Marriage Act, 1955 on the subject of alimony must necessarily turn on the circumstances of each case and no fixed rules can be expected on the question. When an order under S. 24 Hindu Marriage Act, 1955 is made by the Court, where the substantive proceeding is pending enquiry and disposal and questioned under S. 115, C.P.C., it is for this Court to see whether the discretion vested with the trial court had been properly exercised. In other words, whether the discretion had been judicially exercised or not, is the main question that has to be taken into consideration when a revision petition is filed against the order under S. 24, Hindu Marriage Act, 1955. An order for maintenance pendente lite and costs of the proceedings can, as the initial words of the section clearly state, be made in any proceeding under the Act, viz., for restitution of conjugal rights, judicial separation, divorce or nullity of a void or voidable marriage. When a fact of marriage is acknowledged or proved alimony follows subject of course to the discretion of the c6urt in, the matter having regard to the -, means of the parties.

11. In the instant case before us, the evidence discloses that the revision petitioner herein is prosecuting her M.R.B.S. course in the Stanley Medical College, Madras, and the respondent herein also is doing M.Sc. in Tagore Arts College, Pondicherry. The expenses towards M.B.B.S. course is borne out by the father of the revision petitioner herein. No document had been filed on behalf of the revision petitioner herein to uphold her case that the respondent herein has got any interest in the business that is carried on by his father. Under the circumstances, the lower court had exercised its discretion judicially and had held that the revision petitioner herein is not entitled to any maintenance or litigation expenses under the provisions of S. 24, Hindu Marriage Act, 1955. This court does not find any reason to interfere with the order under revision. Accordingly, the revision petition is dismissed. However, there will be no order as to costs.

12. Petition dismissed.


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