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Amrit Lal Nehru Vs. Usha Nehru - Court Judgment

LegalCrystal Citation
SubjectFamily;Civil
CourtJammu and Kashmir High Court
Decided On
Case NumberCivil First Appeal No. 21 of 1981
Judge
ActsJammu and Kashmir Hindu Marriage Act, 1980 - Section 30; ;Hindu Marriage Act, 1955 - Section 24
AppellantAmrit Lal Nehru
RespondentUsha Nehru
Appellant Advocate S.K. Chaku, Adv.
Respondent Advocate J.L. Choudhry, Adv.
Cases ReferredPuran Chand v. Mst. Kamla Devi
Excerpt:
- .....section 24 of the 1955 act should be granted from the date of the service of the notice of the main proceeding. 5. in puran chand v. mst kamla devi, 1980 kash lj 219 : (air 1981 j & k 5) it was held that maintenance could not be made payable earlier than the date of framing of issues, which in law is the date when proceedings under the act commence. 6. in mst. savitri devi v. thoru ram, civil misc. appeal no. 25 of 1978, decided on 3-12-1980, it was held that maintenance was payable from the date of application claiming the same. 7. in munshi ram v. chahati devi, civil 1st. misc. appeal no. 28 of 1978. decided on 15-4-1980, a case to which also a reference has been made by the referring judge, this question, in fact, never arose for consideration. 8. section 30, which is a facsimile.....
Judgment:

Kotwal, J.

1. This appeal, which should have been normally heard by a single Judge is before us on a reference made by Anand, J. to resolve the conflict between the views taken by the Court on the interpretation of the expression 'during the proceedings' occurring in Section 30 of the Jammu and Kashmir Hindu Marriage Act, 1980, hereinafter to be referred to as the Act. Even though the order passed by the Court under Section 30 is not appealable under Section 34 of the Act, yet an important question of law having arisen, we shall treat the appeal as a revision and dispose of it as such. The appellant will hereinafter be, therefore, referred to as the petitioner.

2. The petitioner, the husband, on 18-6-1980, brought a petition under Section 11 of the Act for annulment of his marriage with the respondent in the Court of District Judge, Srinagar. After the respondent had appeared in the Court through her counsel on 3-11-1981-she made an application under Section 39 on 11-11-1981, claiming litigation expenses to the tune of Rs. 2,000/-, and maintenance pendente lite at the rate of Rs. 500/- per month, alleging that she had no independent source of income and that the petitioner, her husband, was drawing a salary of Rs. 1400/- per month as a Government employee. This application was resisted by the petitioner. Consequently, both the parties led evidence on it, and the learned District Judge after considering the same, granted a sum of Rs. 600/- by way of litigation expenses and also granted maintenance pendente lite at the rate, of Rs. 300/- per month in favour of the respondent, by his order dated 27-4-1980 (sic) the order for maintenance to take effect from the date of the filing of the main petition under Section 11. This order has been assailed by the petitioner on the grounds : firstly, that the maintenance could not have been made payable from a date earlier than the date the issues in the case were framed by the Court; secondly, that in granting maintenance, the District Judge did not take into consideration the income of the petitioner; and thirdly, that the amount awarded either by way of litigation expenses or by way of maintenance was excessive.

3. The learned single Judge before whom the petition came up for hearing, having noticed the cleavage in judicial opinion reflected in various decisions of this Court on the point as to from which date an order of maintenance under Section 30 had to be made effective, referred the whole case to a larger Bench ; hence the Full Bench.

4. In Smt. Sudharshan Kumari v. Chaggar Singh, 1978 Kash LJ 1 :(AIR 1978 J & K 25) it was held that even though it was not a rule of universal application, yet maintenance pendente lite under Section 24 of the 1955 Act should be granted from the date of the service of the notice of the main proceeding.

5. In Puran Chand v. Mst Kamla Devi, 1980 Kash LJ 219 : (AIR 1981 J & K 5) it was held that maintenance could not be made payable earlier than the date of framing of issues, which in law is the date when proceedings under the Act commence.

6. In Mst. Savitri Devi v. Thoru Ram, Civil Misc. Appeal No. 25 of 1978, decided on 3-12-1980, it was held that maintenance was payable from the date of application claiming the same.

7. In Munshi Ram v. Chahati Devi, Civil 1st. Misc. Appeal No. 28 of 1978. decided on 15-4-1980, a case to which also a reference has been made by the Referring Judge, this question, in fact, never arose for consideration.

8. Section 30, which is a facsimile of Section 24 of the 1955 Act, reads as under :--

'30. Maintenance pendente lite and expenses of proceedings.-- 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 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.'

9. This section makes maintenance payable to the wife or the husband as the case may be, during the proceeding, without further specifying the point of time during such proceeding, from which the same is payable. Obviously, therefore, it does not empower the Court to grant maintenance either before the commencement of the proceeding, or after the same has ended. Two questions, therefore, precisely fall for determination. These are :--

(1) When do proceedings in terms of Section 30 commence and when do these come to an end?

(2) From what point of time during these proceedings is maintenance payable?

10. None of the aforesaid four decisions of this Court, except the one given by the learned Acting Chief Justice in Puran Chand's case (AIR 1981 J & K 5) (supra), in terms, deals with the first question. According to the learned Acting Chief Justice, main proceedings under the Act e. g., proceedings for restitution of conjugal rights, proceedings for judicial separation, divorce etc etc.. do not commence earlier than the date issues are framed in the case. It is this date which under Order 13 Rule 1 Civil P. C. is the date of first hearing and consequently the date from which the proceedings should be deemed to have commenced.

11. There is no warrant for the proposition that proceeding in a suit commences only from the stage contemplated by Order 13. On the other hand, it commences with the filing of the plaint. On the plaint being riled, summons is issued to the defendant, who on its service appears in the Court and files his written statement. After the parties have filed their pleadings, the Court for the first lime proceeds to apply its mind to the controversy raised in the suit. This controversy is then reduced to the form of distinct issues, which are framed by the Court, not only from the allegations made by them in their pleadings, but also from the allegations made by the parties On oath, and the contents of the documents produced by them. That is one of the reasons why production of documents in terms of Order 13 is insisted on or before this stage, which is called first hearing; the other reason being preventing production of fabricated documents. Then comes the next stage in the proceeding. The parties are asked to lead evidence in support of their respective cases. After they have led it, the Court proceeds to hear arguments and give its judgment in the case. This is the last stage in the proceeding, and the last hearing in the suit. It is, therefore, obvious that proceeding in a suit does not commence on the first hearing, rather the first hearing is one of the various stages in that proceeding, which starts as soon as the plaint is filed in the Court. This interpretation also accords with the definition of the word proceeding given in Black's Law Dictionary, wherein it has been defined as: 'regular and orderly progress in form of law. including all possible steps in an action from its commencement to the execution of judgment' (Blacks' Law Dictionary, Revised Fourth Edition 1968).

12. That apart, the word proceeding in Section 30 has to be given the same meaning, even keeping in view its intent and scope. The object behind the enactment is obviously twofold; firstly, to prevent vagrancy resulting from strained relations between the husband and wife; and secondly, to ensure that the indigent litigating spouse is not handicapped in defending or prosecuting the case due to want of money. That is why Courts have always insisted that whenever an application is made under Section 30. it must be disposed of before any further steps are taken in the main case. They have been gone to the extent of holding that the Court in exercise of its inherent powers should stay further proceedings in the main petition till the order passed by it granting maintenance pendente lite or litigation expenses is complied with by the opposite party.

13. In Smt. Anita Karmokar v. Birendra Chanadra Karmokar, AIR 1962 Cal 88, the wife had made an application under Section 24, which corresponds to Section 30 of the Act, claiming maintenance pendente lite and litigation expenses from her husband in a suit for restitution of conjugal rights brought by him. The trial court allowed the application, but the husband did not comply with the order. The wife then moved another application that further proceedings in the suit may be stayed, till the order passed under Section 24 was complied with. The trial Court rejected this prayer on two grounds. One, that an order passed under Section 24 was executable; and two, that there was no provision in the Act authorising the Court to stay further proceedings in the main case, till the order passed under Section 24 was complied with, a revision was taken by the unsuccessful wife to the High Court. Relying upon the observations of Mahmod, J. in Narsingh Das v. Mangal Dubey, (1882) ILR 5 All 163 (FB) : 'Courts are not to act upon the principle that every procedure is to be taken as prohibited unless it is expressly provided for by the court, but on the converse principle that every procedure is to be understood as permissible till it is shown to be prohibited by the law. As a matter of general principle prohibitions cannot be presumed', Banerjee. J., held that there being no prohibition in the scheme of the Act for staying of proceedings, the trial Court could have stayed them in exercise of its inherent powers. This was a fortiori necessary for advancing the object of Section 24, that an indigent spouse is not hampered in his or her defence due to paucity of funds.

14. In another Calcutta case, viz., Smt. Latika Ghosh v. Nirmal Kumar Ghosh, AIR 1968 Cal 68, one of the questions that had arisen before the Division Bench was as to whether or not the trial Court could refuse to consider the wife's prayer under Section 24, till she had filed her written statement. The Court held that the wife could not be compelled to file her written statement before her prayer for maintenance and expenses was considered. On the other hand she could insist that her application under Section 24 should be decided, before she was called upon to file her written statement.

15. Similarly, in Smt. Anjula v. Milan Kumar. AIR 1981 All 178, the wife had challenged an ex parte decree for restitution of conjugal rights passed against her, inter alia on the ground, that the trial Court could not have compelled her to file her written statement before her application under Section 24 was decided and on her failure to file the same, proceeded ex parte against her. Her contention was upheld by the High Court and it was held that the trial Court had no power to compel the wife to file her written statement before the decision on her application under Section 24 was given by it.'

16. It is, therefore, manifest that Courts have favoured the view that irrespective of the stage of issues, the litigating indigent spouse is entitled to maintenance pendente lite and litigation expenses claimed by her or him under Section 30. Such a view is undoubtedly in consonance with the letter and spirit of the Section. Not to give relief to such a spouse till the issues are settled may, more often than not, render him for her unable to even file the written statement, as a consequence whereof, the stage of issues may not reach at all, and the spouse may have to lose the case without contesting it. Such an Interpretation would be the very anti-thesis of the basic concept of Section 30, and would defeat the object for which the section exists on the statute. The Courts in disposing of an application under Section 30, before proceeding further in the main case, and that too with reasonable dispatch, would be indeed following a very salutary practice. Such a practice, there can be no manner of doubt, is bound to advance the object of Section 30, and much more to speak of deferring the decision on such an application, mere delay in its disposal may sometimes defeat its object. Looking at it from any angle, therefore, Section 30 cannot be interpreted to mean that proceeding within its meaning cannot be said to commence till the issues are framed in the main case. In this view, I regret my inability to subscribe to the view taken by the learned Acting Chief Justice that proceeding in terms of Section 30 starts only when issues are framed in the case.

17. This brings me to the second part of the first question: When do these proceedings come to an end? Section 30, as its language suggests, empowers the Court to grant maintenance and litigation expenses during the pendency of the proceeding in that Court. It does not restrict its application to the proceeding before the trial Court alone, but applies with equal force to the proceeding before the appellate Court as well. It, however, leaves no room for doubt that the Court empowered to grant maintenance is empowered to do so for that period only during which proceedings in the main case remain pending before it, and not for the period subsequent thereto. The order of the trial Court passed by it under Section 30 cannot, therefore, remain effective, after the main proceeding before it comes to an end. If the aggrieved party to the main petition challenges the trial Court's decree or order in appeal, a fresh application under Section 30 by the party seeking relief under that Section, has to be made by it to the appellate Court. The order passed by the trial Court under this Section cannot survive the decision of the main petition by it on the principle that an appeal is merely a continuation of the original lis, meant for its rehearing. The object behind the aforesaid principle is twofold : firstly, to see whether the judgment given by the trial court was right when it was given; and secondly, to mould the relief by taking into account the events that have happened after the judgment came to be passed by the trial Court. A proceeding under Section 30 is an independent proceeding, which hag nothing to do with the merits of the main case. Correctness of the judgment of the trial court in the main case with reference to the point of time when it was passed cannot be, therefore, determined in appeal in the light of the findings recorded by it in the application under Section 30. Nor has any subsequent change in the financial position of the parties anything to do with the moulding of the relief in the main case at the appellate stage. The moment proceedings in the main petition come to an end, right of the party to enforce the order passed in its favour under Section 30 also ceases, in the sense, that it cannot claim maintenance for a period posterior to the decision of the main petition. This, however, does not mean that even if proceedings in the main petition have come to an end, the party in whose favour an order under Section 30 has been passed, cannot execute the same for recovery of the amount due till the date of the final decision of the main petition. Nor does the decision of the main petition take away the power of the Court to dispose of on merits the application made to it under Section 30 during the pendency of the main proceeding. There is ample authority for the aforesaid view. (Mst. Mukan Kanwar v. Ajit Chand, AIR 1961 Raj 51, Dr. Tarlochan Singh v. Smt. Mohinder Kaur, AIR 1963 Punj 249, Amrik Singh v. Smt. Narinder Kaur, AIR 1979 Punj & Har 211. and B. M. Muniratnam Naidu v. Shantamma, AIR 1971 Mys 25).

18. Another important feature of Section 30 is that an order under the section can be made in a proceeding under the Act, and in no other proceeding. This is amply borne out from the expression 'where in any proceeding under the Act' occurring in the section. The indigent spouse who is a party to petitions under Sections 9, 10, 11, 12 and 13, for instance, can, if so entitled, be granted relief under Section 30, as proceedings initiated under these sections would undoubtedly be proceedings under the Act. But. if any such petition has been dismissed for default and an application for its restoration has been made by the petitioner, or an ex parte decree has been passed in it, and an application for setting aside the same has been made by the aggrieved party, no relief under Section 30 can be given to the indigent spouse, as the proceeding for restoration of the main petition, or for setting aside the ex parte decree passed in it, would not be a proceeding under the Act, but a proceeding under the Civil P. C. which applies to proceedings under the Act merely by force of Section 23 of the Act. On the parity of reasoning, relief under Section 30 may be given in an appeal against a decree or order passed under the Act. as an appeal is a proceeding under the Act by virtue of Section 34 of the Act. But, no relief under this section can be granted in a revision petition against an order passed under the Act, for revision not being provided under the Act, it would not be a proceeding under the Act but one under the Civil P. C.

19. I now turn to the second question as to the point of time from which the order for maintenance pendente lite has to be made operative. The view taken by the Calcutta and Mysore High Courts which also appears to have been taken by this Court in 1978 Kash LJ 1 : (AIR 1978 J & K 25) (supra) is that the normal rule is that maintenance should be granted from the date notice of the main proceeding is served upon the party claiming it, (Smt. Sobhana Sen v. Amar Kanta Sen, AIR 1959 Cal 455, and N. Subramanyam v. Mrs. M. G. Seraswathi, AIR 1964 Mys 38). The view apparently taken by the Punjab and Haryana High Court, however, is that maintenance cannot be made payable for a period earlier to the date of the application wherein it has been claimed. This also appears to be the view taken by this Court in Savitri v. Thoru Ram (supra).

20. Section 30 itself does not fix the point of time from which maintenance is to be made payable. It leaves it entirely to the discretion of the Court which may allow it as early as from the date of the institution of the substantive proceeding itself. All the same, the section leaves no room for doubt that the moment the substantive petition is filed the indigent litigating spouse acquires a right to move the Court under this section. The spouse may be the wife or the husband; the petitioner or the respondent. This section being exclusively meant for the benefit of the indigent spouse, it is entirely for him or her to decide whether or not to avail the benefit and if so from what point of time. Such an intention would be normally manifested by the application made in that behalf. The spouse, when he or she is the petitioner may move an application under Section 30 either along-with the substantive petition, or even at a stage much later than that. There would obviously be no justification for granting maintenance in favour of such a claimant from a date earlier than the date of the application, when such can application could have been, moved alongwith the main petition. Similarly, a respondent being hard pressed, may ill afford to await the service of the substantive petition and may make the application by voluntarily appearing in the Court. To make maintenance payable in his or her favour from a date posterior to the date of the application would be manifestly unjust. In any case, therefore, the date of application under Section 30 itself shall normally be the point of time from which relief under the section, even though claimed from an earlier date of course not earlier than the date of the commencement of the main proceeding -- is given to the party claiming the same, unless it can satisfy the Court as to what prevented it from making the application earlier. Laches on its part in making the application shall always be considered as a circum-stance disentitling it to claim the relief from a date earlier than the date of the application.

21. Applying these principles to the facts of the present case, the main petition was filed on 18-6-1980. Application under Section 30 was made on 11-11-1980. No prayer was made in it that maintenance should be allowed from the date earlier than the date of the application nor was any reason assigned for not making the same earlier. The learned District Judge was, therefore, not justified in making the maintenance payable from 18-6-1980 i.e., the date of the filing of the main petition. He should have made it payable from 11-11-1980 only.

22. The sum of Rs. 600/- awarded by way of litigation expenses, in my opinion, is not excessive. Moreover, it is a finding based upon evidence, which cannot be upset by the High Court in its revisional jurisdiction. I, however, feel that the finding in regard to maintenance pendente lite is vitiated by error of law, in that, it has been arrived at by overlooking material evidence bearing on it. The learned District Judge has no doubt relied upon petitioner's own statement by fixing his emoluments at Rs. 1500/- per month. But, he has overlooked that part of his statement wherein he has said that a sum of Rs. 540/- is being deducted every month from his pay on account of G. P. Fund and insurance premium. Furthermore the petitioner, it was admitted before us, has since been transferred from Ladakh. As a result, he has ceased to get the fifty per sent additional Ladakh allowance. His basic pay is Rs. 760/- per month, and in addition to it, he is getting Rs. 400/- per month as dearness allowance. His gross emoluments, therefore, come to Rs. 1160/- per month, Deducting the amount of Rs. 540/- from it, his net emoluments come down to Rs. 620/- per month. Keeping in view the income of the petitioner and the standard of life maintained by the family in view of the social status of its members. Rs. 200/- per month should be the appropriate sum payable to the respondent by way of maintenance pendente lite.

23. Accordingly, I direct that besides paying a sum of Rs. 600/- on account of litigation expenses, the petitioner shall pay a sum of Rs. 200/- per month to the respondent by way of maintenance pendente lite. This sum shall be payable to her with effect from 11-11-1980, till the petition under Section 11 is finally disposed of by the trial Court To this extent the order passed by the learned District Judge shall stand modified. No costs.

Mir, J.

24. I respectfully agree with the view expressed and judgment given by my learned brother Kotwal, J.

FAROOQI, Acting C. J.

25. The facts have been stated in detail by my learned brother Kotwal, J. and I need not repeat the same. The principal question to be considered is, what is the point of time from which maintenance is payable under Section 30 of the Hindu Marriage Act? The said Section has been quoted in his judgment by brother Kotwal and I need not reproduce it here. The language of that Section makes it amply clear that it has been enacted for the benefit of an indigent spouses involved in any proceeding arising under the Act. Such spouse would be entitled to have from the other side interim monthly allowance, during the proceeding', i. e.. throughout the continuation of proceeding beginning from the filing of the action till the entry of judgment. In the case of Puran Chand v. Mst. Kamla Devi, (AIR 1981 J & K 5) I have, no doubt, limited the period to that intervening between the framing of the issues and the final disposal of the case, but I must confess that the interpretation so given to the expression 'during the proceeding' is much too narrow, which admits of a wider interpretation detailed above and the mistake in the interpretation in that case arose because that case was heard ex parte and proper assistance was not available in the matter. But the payment of interim maintenance to an indigent spouse under this section is not automatic. The section provides for a benefit which he may or may not, avail of. If he decides to avail of the benefit, he must apply for the same and the benefit would be available only, if so ordered by the Court. The implication clearly is that the earliest time from which the indigent spouse can claim and that court can grant the interim allowance is the date on which he has moved the application and not for any period anterior to that. Accordingly I am inclined to agree with a similar view taken by the Punjab and Haryana High Court and, with respect, dissent from the view to the contrary expressed by the Calcutta and Mysore High Courts in the cases mentioned in the judgment of my learned brother Kotwal, J. On these premises I agree with the ultimate order passed by my brother Kotwal J. in the present ease.

MIR, J.

26. Announced in the open court today by me at Srinagar.


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