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Mythili Raman Vs. CaptaIn K.T. Raman - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtChennai High Court
Decided On
Reported in(1976)1MLJ399
AppellantMythili Raman
RespondentCaptaIn K.T. Raman
Excerpt:
- - the object of section 24 is to provide necessary funds to the needy spouse to prosecute the proceedings as well as to maintain himself or herself during the pendency of the proceedings......under section 10(1)(6) of the hindu marriage act (herein after referred to as the act), for judicial separation on the ground that the wife had been guilty of cruelty towards him. the wife contested the petition refuting the allegations made by the husband against her. she also filed an application under section 24 of the act for interim alimony and expenses of proceedings. the husband filed a counter-affidavit opposing the aforesaid application under section 24. peculiarly enough, the court below did not hear this application and passed no order thereon it had been adjourning the application along with the main petition for judicial separation from time to time. in fact, on behalf of the wife, an application for advancing the hearing of the above said application viz., the.....
Judgment:
ORDER

N.S. Ramaswami, J.

1. These two Civil Miscellaneous appeals by a Hindu wife arise under pecaliar circumstances. The husband filed a position under Section 10(1)(6) of the Hindu Marriage Act (herein after referred to as the Act), for judicial separation on the ground that the wife had been guilty of cruelty towards him. The wife contested the petition refuting the allegations made by the husband against her. She also filed an application under Section 24 of the Act for interim alimony and expenses of proceedings. The husband filed a counter-affidavit opposing the aforesaid application under Section 24. Peculiarly enough, the Court below did not hear this application and passed no order thereon it had been adjourning the application along with the main petition for judicial separation from time to time. In fact, on behalf of the wife, an application for advancing the hearing of the above said application viz., the application under Section 24, was also filed as the Court below had adjourned the said application along with the main petition to a particular date. It may be noted that the lower Court fixed the date finally for the trial of the main petition for judicial separation. Naturally, the wife wanted her application under Section 24 to be taken up in the first instance and disposed of so that she can get ready for the trial of the main petition. Unfortunately the Court below not realising that an application under Section 24 has to be decided in the first instance before ever the main petition is taken up for trial had adjourned even the application to advance the hearing of the application under Section 24 to the date on which the main petition stood posted. No orders were p assed on the application under Section 24.

2. The main petition stood posted for trial, in September, 1968. The application under Section 24 for interim alimony and expenses had been filed even in 1967. Still no order has been passed on the said application. From September, 1968 the Main petition came to be adjourned to November, 1968 as the final date for trial of the said petition. It is after September, 1968 the application for advancing the hearing of the application under Section 24 came to be filed. However, as I said no order was passed on any of these applications.

3. On the date on which the main petition and the application under Section 24 were taken up (November, 1968) it had teen represented on behalf of the wife that her counsel was ready to argue the application can not ready to get on with the trial of the main petition. The learned Judge of the City Civil Court was not prepared to concede the above request. He directed the counsel for the wife to report no instructions. However, the counsel rightly said that he was not reporting no instructions, but still he had been insisting that the application under Section 24 should be taken up for hearing and the main petition adjourned to a subsequent date. As the Court below wanted the main petition to be heard in the first instance, the counsel withdrew. The wife was also absert from Court. Then, the Court set the wife, who is the respondent in the main petition, ex parte and after examining the husband as P.W. 1 gave a decree for judicial separation.

4. Needless to say that the course adopted by the court below is against the provisions of the Act. Though in Section 24 there are no words specifically saying that an application under that section has to be disposed of prior to the main petition being taken up for trial, a perusal of that section would go to show that an application under that section is intended to be disposed of in the first instance. The marginal note for that section is:

Maintenance pendente lite and expenses of proceedings.

The section opens with the words:

Where in any proceeding under this Act it appears.

Therefore, it is clear that an application under Section 24 is to be disposed of during the pendency of the proceedings, viz., the main petition. It is not right to say that because there are no words specifically saying that an application under Section 24 has to be heard in the first instance, before ever the main petition is taken up for trial, the Court is at liberty to tack on the application with the trial of the main petition itself. The object of Section 24 is to provide necessary funds to the needy spouse to prosecute the proceedings as well as to maintain himself or herself during the pendency of the proceedings. Therefore, there is no room for the Court not passing any order on the application and relegating the same to be taken up with the main petition itself.

5. One appeal before me is against the ex parte decree for judicial separation passed by the Court below. The other appeal is against the consequential order passed by the lower Court on the application under Section 24. As the main petition itself came to be decreed ex parte the Court below dismissed the application under Section 24.

6. I am of the view that the main petition has to be sent back to the trial Court for fresh disposal. As far as the application under Section 24 is concerned, 1 think it is not necessary to send back the same to the Court below. During the pendency of these appeals Krishnaswamy Reddy, J., has passed orders fixing interim maintenance during the pendency of the appeals and has also ordered the husband to pay a sum of Rs. 500 as expenses for prosecuting the appeals. The interim maintenance ordered is for the wife and the son at Rs. 600 per month. Considering the fact that the husband is an Air India Pilot and other circumstances in the case, I think the interim maintenance fixed by the learned Judge, can continue during the pendency of the petition in the Court below as the same is being sent there for a fresh disposal. I direct the husband who is the respondent in these appeals to pay a sum of Rs. 300 as expenses of proceedings in the trial Court, which sum would be in addition to the sum of Rs. 500 which had been directed by Krishnaswamy Reddy, J., as the amount payable to meet the expenses of the present appeals. I further direct that the above said sum of Rs. 300 is to be paid within one month from this date.

7. Accordingly, C.M.A. No. 91 of 1969 is allowed as indicated above.

8. C.M.A. No. 336 of 1968 which is against the ex parte decree for judicial separation is also allowed. The decree of the Court below is set aside and the matter remitted back for fresh disposal on merits. There will be no order as to costs in these appeals.

9. I may add that the Court below had not tried to bring about any reconciliation between the parties as contemplated under Section 23(2) of the Act. That is again a point for setting aside the decree of the Court below granting judicial separation. But, at the same time, I should further say that hereafter there is no need for the lower Court to attempt at any reconciliation between the spouses. I say so because the counsel on either side represent that when the appeals were before Krishnaswamy Reddy, J., the learned Judge made several attempts to bring about reconciliation between the spouses and it was found to be wholly impossible. I am recording this fact and as a consequence I direct the lower Court not to waste further time in trying to bring about reconciliation between the parties as contemplated under Section 23(2) of the Act.


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