ORDER
S.K. Keshote, J.
1. Both these civil revision applications under Section 115 of C.P.C., 1908 arise from the order dated 5.1.1998 of the 3rd Joint Civil Judge (S.D.), Junagadh passed below Ex. 5 in C.M.A. No. 99/97. Vide this order the application filed by Preetiben Amankumar Parekh, the respondent in first revision application and petitioner in second revision application for grant of interim maintenance pending decision of her application under Section 18 of Hindu Adoptions and Maintenance Act, 1956 (hereinafter referred to as ‘the Act, 1958’) is allowed and a sum of Rs. 1,000/- p.m. as interim maintenance is granted to her w.e.f. the date of the order.
2. In the first revision application this order is challenged by the husband and in second revision application the part of this order is challenged by the wife.
3. The grievance of the husband in this civil revision application is that the learned Trial Court has no jurisdiction to pass the order of grant of interim maintenance pending the application of the wife under Section 18 of the Act, 1956 as the application permitting her to file the application aforesaid, as a pauper has not been granted. Unless the Court permits her to file the substantive application as pauper it has no jurisdiction to grant the temporary maintenance to her. The second ground of challenge is that the award of interim maintenance at the rate of Rs. 1,000/- p.m. is highly excessive keeping in view the income of the husband.
4. The wife has challenged the part of this order on two grounds. Firstly, it is contended that the interim maintenance should have been awarded by the learned Trial Court to her from the date of filing of application Ex. 5. The second ground of challenge is that the learned Trial Court has committed a serious error in awarding the interim maintenance at the rate of Rs. 1,000/- p.m. though it accepted that the income of the husband is approximately Rs. 5,000/- p.m. Learned Trial Court should have awarded l/3rd of the amount of income of the husband as interim maintenance to her.
5. Learned Counsel for the husband-respondent contended that the husband has to bear the responsibility of maintenance of his aged parents. Second contention raised is that he has to travel every day from the place of his residence to the place of his service which costs him the monthly expenses of Rs. 1,000/-. It is urged that the officiating allowance for 29 days amounting to Rs. 934.95 should have been excluded from his income. The contention is that only his substantive pay should have been taken into consideration for the purpose of arriving at a reasonable figure of the amount to be awarded to the wife as interim maintenance.
6. Learned Counsel for the respondent-wife supports the order of the learned Court below.
7. I have given my thoughtful consideration to the submissions made by the learned Counsel for the parties. It is not in dispute that out of this marriage, there is no issue.
8. Learned Counsel for the husband has not challenged the finding of the Court below where it has taken the income of the husband to be approximately of Rs. 5,000/- p.m.
9. Learned Counsel for the husband has challenged the contention raised by the learned Counsel for the wife that the amount of temporary maintenance should have been ordered to be paid from the date of application.
10. Learned Counsel for the wife produced on record of these civil revision applications, for the perusal of the Court, pay slip of the month of June, 1997 of the husband. I find from this pay slip that after excluding the amount of the officiating allowance which the husband was getting his total income comes to Rs. 5,134.80. He was paying the contribution towards the provident fund of Rs. 379/- p.m. This amount which is a compulsory deduction under a statute may be deducted from his total pay package. Other amounts of deduction from his salary are nothing but only deductions towards the amount of loans, which have been taken by him under different heads. These deductions are not compulsory and more so not under any statute. So if we go by these figures of salary and compulsory deduction, I am of the opinion that the monthly income of the husband on the basis of this pay slip can be taken to be Rs. 4,800/-. This is the pay slip of the month of June, 1997 and by now the income of the husband also would have been increased. So taking into consideration the monthly income of the husband, the amount of Rs. 1,000/- p.m. as awarded by the learned Trial Court towards the interim maintenance to the wife is towards the lower side.
11. I may now advert to the other contention raised by the learned Counsel for the husband. It is true that the wife prayed for grant of permission to her to file the application under Section 18 of the Act, 1958 in the form of pauperism. She is a pauper as what she is alleging. Otherwise also, it is not the case of the husband that the wife is elsewhere in gainful employment or she has sufficient means for her maintenance as well as of bearing the expenses of litigation. In case the contention of the learned Counsel for the husband is accepted then in the matter of matrimonial disputes no lady will get any maintenance in case where she has prayed for permitting her to file substantive application in the form of pauperism. Under Section 24 of the Hindu Marriage Act, 1955 it is a statutory duty of the husband to pay to his wife the interim alimony and expenses of litigation but a provision analogous to Section 24 of the Act, 1955 is not there in the Act, 1958. In the case where the wife does not want to file any matrimonial dispute under the Act, 1955 but she is in dire necessity of maintenance approaches to Court by an application for grant of maintenance under the Act, 1958 she will not get any interim relief as per application for permitting her to file the substantive application as pauper has not been decided. Till that application is decided she has to wait even for the interim maintenance and result thereof would have been that she will be subjected to pain, sufferings and agonies. It is very difficult for a lady who is not in gainful employment or has other source of income to survive in the society till the day on which the Court will decide her application for grant of permission to her to file substantive application as pauper. We talk of legal services to be provided to the women and this is the fate of this class of litigants in this country that their applications for forma-pauperism has not been decided so far and husband has objected her application for grant of interim maintenance pending decision of, the main matter on this ground.
12. The matter still has to be considered from different angle. In the matter of grant of permission to the litigants to file the suits as indigent persons merely on affidavit of their financial condition, such an application should have been granted. Even on this application the State Government should not have been called upon and no inquiry of the nature as what in the 1940s and 1950s was desirable for grant of permission to the litigants to file the suit as pauper is also not necessary. What in fact the Courts are doing by permitting litigants to file the suit as indigent person to defer the payment of Court-fees, Irrespective of success or failure in the litigation the liability to pay to Court-fees still continues. By extending such benefit, the Court is only deferring the payment of Court-fees.
13. If we now consider this matter in the context of the Act, 1987 in the cases of eligible person for legal services they are getting free full legal aid and that amount is not payable back by the litigants.
14. Article 21 of the Constitution confer the fundamental right of protection of life and personal liberty which reads as under :
“21. Protection of life and personal liberty-No person shall be deprived of his life or personal liberty except according to procedure established by law.
39. Certain principles of policy to be followed by the State-The State shall in particular, direct its policy towards securing-
(a) that the citizens, men and women equally, have the right to an adequate means to livelihood;
(b) that the ownership and control of the material resources of the community are so distributed as best to subserve the common good;
(c) that the operation of the economic system does not result in the concentration of wealth and means of production to the common detriment;
(d) that there is equal pay for equal work for both men and women;
(e) that the health and strength of workers/men and women, and the tender age of children are not abused and that citizens are not forced by economic necessary to enter evocations unsuited to their age or strength;
(f) that children are given opportunities and facilities to develop in a healthy manner and in conditions of freedom and dignity and that childhood and youth are protected against exploitation and against moral and material abandonment.”
15. Article 39-A has been inserted in the Constitution of India by the Constitution, 42nd Amendment Act, 1976 vide Section 8, therefore, with effect from 3.1.1977. This Article has been inserted in Part IV of the Constitution, i.e., the Chapter leading to directive principles of the State Policy.
16. The Parliament in furtherance and to fulfil the object as given out under Article 39-A of the Constitution constituted Legal Service Authority by enacting the Legal Service Authorities Act, 1987, to provide free and competent legal service to the weaker sections of the society to ensure that the opportunities for securing justice are not denied to any citizen by reason of economic or other disabilities, and to organise Lok Adalats to secure that the operation of the legal system promotes justice on the basis of equal opportunity. Section 12 of the Act aforestated provides for the criteria for giving legal service which reads as follows :
“Section 12.
Criteria for giving legal services-Every person who has to file or defend the case shall be entitled to legal services under this Act if that person is :
(a) a member of a Scheduled Caste or Scheduled Tribe;
(b) a victim of trafficking in human being or beggar as referred to in Article 23 of the Constitution;
(c) a woman or a child;
(d) a mentally ill or otherwise disabled person;
(e) a person under circumstances of underserved want such as being a victim of a mass disaster, ethnic violence, caste atrocity, flood, drought, earthquake or industrial disaster; or
(f) an industrial workman; or
(g) in custody, including custody in a protective home within the meaning of Clause (g) of Section 2 of the Immoral Traffic (Prevention) Act, 1956, or in a juvenile home within the meaning of Clause (j) of Section 2 of the Juvenile Justice Act, 1986, or in a psychiatric hospital or psychiatric nursing home within the meaning of Clause (g) of Section 2 of the Mental Health Act, 1987; or
(h) in receipt of annual income less than nine thousand rupees or such other amount as may be prescribed by the Central Government if the case is before the Supreme Court.”
17. From this provision aforesaid, I find-that irrespective of the fact what is the income of a woman or a child, they are eligible for getting legal services to file or defend the civil case in the Civil Court.
18. Right to free legal aid to pauper or indigent litigant in the Civil Court is also available under Order 33 of the C.P.C., 1908. The legal services which are provided under the Act, 1987 is in the form of providing the costs of the litigation which include Court-fees and a free professional service of an Advocate. Irrespective of the fact whether the litigant who has taken the legal services in filing of the litigation succeeds or fails therein whatever the amount is spent by the Legal Services Authority is not recoverable from the litigant concerned. Under Order 33 of the C.P.C. only a limited legal aid is available to pauper/indigent litigants in the Civil Court. The civil remedies are being availed of or utilised for the enforcement of civil rights or rights under common law. Under Order 33, one time legal aid is permissible by the Courts to the litigants in the civil case subject to fulfilment of the conditions as laid down under the different rules of this Order: One expectation is there to what the legal services provide under the Act, 1987 and that is on the success of the party in the litigation he has to pay the amount of Court-fees, the payment thereof which has temporarily been deferred by the Court initially. The reference in this context may have to the Rule 10 of this Order. It is not unknown to the Courts that a considerable long time is being consumed by them in deciding the applications filed by the litigants under Order 33 of the C.P.C. granting permission to them to file the suit as indigent person. A person is an indigent person if he is not possessed of sufficient means (other than in property exempt attachment in execution of decree and the subject-matter of the suit) to enable him to pay the fees prescribed by law for the plaint or where no such fee is prescribed, if he is not entitled to property worth Rs. 1,000/- other than the property exempt from attachment in execution of a decree, and subject-matter of the suit. Any property which is acquired by a person after the presentation of his application for permission to sue as an indigent person, and before the decision of the application shall be taken into account in considering the question whether or not the applicant is an indigent person. Rule 1-A of Order 33 of the Code makes a provision for inquiry into the means of an indigent person. Every inquiry into the question whether or not a person is indigent person snail be made, in the first instance, by the Chief Ministerial Officer of the Court, unless the Court otherwise directs, and the Court may adopt report of such officer as its own finding or itself make an inquiry into the question. Rule 2 of this Order provides for the contents of the application. Rue 3 provides for the presentation of the application and Rule 4 for examination of the applicant. Rule 5 provides for the rejection of application and if we go by this provision there is sufficient scope available to the Court to reject the application. Rule 6 provides for the notice of a day for receiving evidence of the applicant’s indigency. Rule 7 makes a provision for the procedure of hearing of this application. Rule 8 is a provision for procedure if the application is admitted. Rule 9 empowers the Court of the withdrawal of permission to sue as an indigent person. Rule 9A which has been inserted in the Order 33, w.e.f. 1st February, 1977, immediately after Article 39-A has been inserted in the Constitution, provides that where a person who is permitted to sue as an indigent person is not represented by Pleader the Court may if the circumstances of the case so require assign a Pleader to him. Sub-rule (2) of Rule 9-A of the Order 33 of the Code provides that the High Court may with the previous approval of the State Government may make Rules providing for a mode of selecting Pleaders to be assigned under Sub-rule (1), the facilities to be provided to such Pleader by the Court and any other matter which is required to be or may be provided by the rules for giving effect to the provisions of Sub-rule (1). Rule 10 of this Order lays down that where the plaintiff succeeds in a suit the Court shall calculate the amount of Court-fees which should have been paid by the plaintiff if he had not been permitted to sue as an indigent person; such amount shall be recoverable by the State Government from any party ordered by the decree to pay the same, and shall be first charge on the subject-matter of the suit. Rule 11 of the Order 33 of the Code provides that where the plaintiff fails in the suit or the permission granted to him to sue as indigent person is withdrawn, or where the suit is withdrawn or dismissed because the summons for the defendant to appear and answer has not been served upon him in consequences of the failure of the plaintiff to pay the Court-fee or postal charges (if any) chargeable for such service or to present copies of the plaint or concise statement or because the plaintiff does not appear when the suit is called on for hearing, the Court shall order the plaintiff, or any person added as co-plaintiff to the suit, to pay the Court-fees which would have been paid by the plaintiff if he had not been permitted to sue as an indigent person. Rule 16 provides that the cost of application for permission to sue as art indigent and of any inquiry into indigency shall be costs in the suit. Rule 18 makes a provision for power of the Government to provide for free legal services to indigent person. This provision reads as under :
“Rule 18
(1) Subject to the provisions of this Order, the Central or State Government may make such supplementary provisions as it thinks fit for providing free legal services to those who have been permitted to sue as indigent persons.
(2) The High Court may, with the previous approval of the State Government, make rules for carrying out the supplementary provisions made by the Central or State Government for providing free legal services to indigent persons referred to in Sub-rule (1), and such rules may include the nature and extent of such legal services, the conditions under which they may be made available, the matters in respect of which, and the agencies through which, such services may be rendered.”
19. So from the scheme of Order 33 of the Code, I find that if a litigant is an indigent person he has to apply for grant of permission to file suit in such capacity and in that case if it is granted men he will be exempted from payment of the Court-fees and the Court or the State Government would provide free legal services to him also. The inquiry to be conducted for deciding the application of a litigant to accept him indigent person is time consuming and in the case of his success in the case, the Court-fees which is payable on the plaint has to be paid by him or the State Government will have first charge on the subject-matter of the suit. In case of dismissal of the suit in the contingencies as provided under Order 33 of the Code the plaintiff is liable to pay the amount of Court-fees to the Government. Be that it may, from the scheme of this order, I find that an indigent person has been exempted from payment of the Court-fees as well as being provided free legal services, though subject to certain conditions. But in the case of the person of the category as provided under Section 12 of the Act, 1987 they will get free legal aid and irrespective of the result of the success or failure in the litigation they are not required to refund the amount of the Court-fees and other expenses incurred in the litigation by the authority. It is unfortunate that despite of holding legal literary camps and Lok Adalats and further having Legal Service Authorities of Taluka, District and High Court level, we are not able to make known to the litigants of the categories as enumerated in the Section 12 of the Act, 1987 about their right to get free legal aid. So from these facts, it is clear that this programme is not successful to the extent what otherwise it would have been. This case clearly exhibits that the wife is unaware of the provisions of the Act, 1987 and as contained in Order 33 of the Code. I am constrained to state that the members of the Bar also not make this class of litigants know their rights under the Act, 1987 or Order 33 of the Code for the reasons best known to them. The Advocates can play a real and effective role to make know this class of the litigants for these legal services and the provisions as contained in Order 33 of the Code. In the present case, the lady was an indigent person. But she filed application through the Advocate. It is difficult to believe that the Advocate would not have charged anything from her towards his professional fees. Even it is taken that in this case the Advocate would not have charged fees from this lady still that may not be reasonable and practical approach, because when they feel that the litigant who had approached him is an indigent person or a litigant who falls under the category of persons’ enumerated in the Act, 1987 they should have been given the necessary information of free legal services available to them under the aforesaid Act as well as under Order 33 of the Code. In case, the petitioner-wife would have approached the Legal Service Authority under the Act, 1987 then decision on her application for interim maintenance would not have been delayed and she was not required to undergo the time consuming and long battle of the inquiry for deciding her application under Order 33 of the Code. Even under Order 33 of the Code, the Advocate should have advised her to file application for declaring her indigent person herself and in that case as it is provided under Rules 9-A and 18 of the aforesaid Order, free legal services, would have been provided to her either by the Court or by the Government. She was not required to pay single penny from her pocket towards the legal services. In such case it would have been more easy for the Court also to accept the plea of the lady of her indigency. Where a litigant appears through an Advocate with prayer to permit her to file a case as indigent person many times to Court may see with suspicion in what she stated in the Court regarding her position and status.
20. The provision as contained in Order 33 of the Code should be looked into and given effect to by the Courts in the case where a litigant filed an application for grant of permission to him/her for filing the civil suit as an indigent person or of the persons of the category falling under Section 12 of the Act, 1987 in the context of that provision. It is not gainsay that the persons who fall under any of the categories enumerated in Section 12 are to be provided free legal services and in case those principles are also made applicable and in my considered opinion may be made applicable while dealing with the application filed by the litigant under Order 33 of the C.P.C., the litigant concerned will be relieved of the lengthy, cumbersome and difficult process of holding of the inquiry. In the present case the petitioner-wife being a lady, is certainly entitled for free legal aid and if we go by this fact then this application filed under Order 33 of the C.P.C. is ill-advised. She could have conveniently approached the Legal Services Authority where she would have been made known of the provisions as contained in the Act, 1987 and she could have saved herself from all legal dilemma as projected and raised by the Counsel for the petitioner.
21. I am at pains to state that on one side we are talking of giving absolute free legal aid to women even of those classes where they have sufficient means to bear the expenses of litigation and on the other hand she is facing cumbersome, lengthy and difficult procedure in the Courts for grant of permission to her for filing her substantive application as an indigent person in a matrimonial dispute. We should not feel contended and satisfied as if our programmes of holding literacy camps and Lok Adalats are successful where the real fact is that women are still subject to manifold hardships, difficulties and suffering in litigation before the Courts. It is really shocking that the husband who has pious duty of maintaining his wife or to provide her with basic necessities of life, is contesting her just and reasonable claim of temporary maintenance in her substantive application under Section 18 of the Act, 1958. This approach of the husband is wholly arbitrary, unjustified and contrary to the principles of basic need of livelihood. The Court is also equally responsible where a simple matter of grant of application of a woman of permitting her to file her substantive application under Section 18 of the Act, 1958 as an indigent person, has not decided the same for long period. When an application of this nature has been presented by a woman in the Court, the matter should have been decided with reference to the provisions of the Act, 1987 or it should have been referred to the District Legal Services Authority for grant of free legal services to the lady so that this defence should not have been put from the side of the husband and the Court’s valuable time would not have been consumed in deciding this application. The tune now comes and more so in view of the constitutional provisions as contained in Articles 21 and 39-A as well as Order 33 of the Code of Civil Procedure, the Court should have justice-oriented approach in such matters. These matters are to be given top priority and where the Court is satisfied that the litigant is a person of the category which is entitled for free legal aid under the Act, 1987 either the application under Order 33 should have been decided in that context without holding an inquiry and the litigant should not have only been granted permission to file substantial application as an indigent person but a free professional service of an Advocate also. The other way would have been to send the matter to the concerned Legal Services Authority. In this case, the learned Trial Court has not taken either of the courses and it has proceeded in the matter as if the lady is an ordinary litigant and she has to be subjected to all dilemma of our present system prevailing in the Courts.
22. Otherwise also, I fail to see how pending decision of the application filed by the wife for grant of permission to file her substantive application as an indigent person the Court has no jurisdiction to grant interim maintenance to her. Learned Counsel for the husband fails to establish how any prejudice is to be caused or is likely to be caused to the husband if the Trial Court passes an order granting interim maintenance to the wife pending the decision of the application filed by her under Order 33 of the C.P.C. It is not gainsay that wife without paying any Court-fees or bearing out any expenses of the litigation only on a simple application could have been granted the maintenance under Section 125 of the Cr.P.C. by the Criminal Court. It is also no more in dispute that pending decision of the substantial application under Section 125 of Cr. P.C., the Court has all power to grant the interim maintenance to the wife also. In the context of this legal position and keeping in view the benevolent provisions of the maintenance to be granted to the wife, I am of the firm opinion that the Courts should have been liberal in their approach while dealing with the application for grant of interim maintenance and should have made justice-oriented efforts and the technicalities if any comes in their way to grant interim maintenance, as it is sought to be raised by the husband than those should have been excluded or given go-by in view of the provisions as contained in Article 21, Article 39-A of the constitution as well as the provisions as contained in the Act, 1987 and Order 33 of the C.P.C. In view of the facts of this case and benevolent provisions of Article 21 of the Constitution and provisions of the Act, 1987 and Order 33 of C.P.C., I do not find any substance in this contention of the learned Counsel for the petitioner/husband.
Now, I have to revert back to the revision application filed by the wife.
23. Two-fold grievances have been made in the civil revision application by the wife. The first grievance is that the interim maintenance should have been awarded by the Court below to her from the date of filing of the application and not from the date of the order. In case the Courts have started to grant the maintenance which includes temporary/interim maintenance from the date of the order then the husband who is capable of managing delay in disposal of such an application would be benefited. The delay in the disposal of the application in general in the case is not because of any fault of the wife but sometimes our adversary system itself is a substantial cause of the delay in disposing of the application. Otherwise also irrespective of the fact that the application has been filed for grant of maintenance by the wife, the husband has pious obligation and duty to maintain his wife. I find sufficient merits in the contentions of the learned Counsel of the wife that the order of the Trial Court to grant interim maintenance to the petitioner-wife from the date of the order deserves to be quashed and set aside.
24. In the impugned order no reason whatever has been stated by Trial Court as to why the amount towards interim maintenance is not awarded from the date of the application. Ordinarily, the amount of interim maintenance is required to be awarded from the date of the application and not from the date of the order. In the absence of any reason for awarding the amount of interim maintenance to the wife from the date of the order, is difficult to uphold the impugned order by this Court.
25. The another grievance made by the petitioner-wife is that the amount of the interim maintenance should have been l/3rd of the total income of the husband, is strongly opposed by the learned Counsel for the husband. This is a stage where the learned Trial Court granted the interim maintenance to the wife pending substantive application for maintenance. So in fact and substance it is claimed for maintenance pendente lite by wife, has been granted. Nothing finally has so far been decided by the Court below. It is not the final figure of amount of maintenance to be awarded in the proceedings to the wife. It is only a tentative figure which has been arrived at to be paid to the wife monthly by the husband pending decision of the substantive application for maintenance. It is open to both the parties to raise this issue and in fact this is only a substantial issue in the main application to be decided by the Court below. Apprehension of the learned Counsel for the petitioner-wife that in the main proceedings the Court below may take this figure to be final figure of the amount of the maintenance in this case, is not well-founded. By very nature of the order it is only an interim maintenance and the Court below in the substantive application after considering the evidence produced by the parties has to decide what amount of maintenance has to be awarded to the wife. It is in fact not the stage where pending the substantive application for final decision in the Court below, this Court should decided this question finally and more so in a revision application which arises from the order of the Court below under which interim maintenance has been granted to wife-petitioner. The wife has sufficient opportunity to satisfy the Court below that she is entitled to the amount of maintenance much higher in quantum than what it has been granted to her as interim maintenance.
26. In the result, the Civil Revision Application No. 586/98 fails and same is dismissed.
27. The Civil Revision Application No. 792/98 succeeds in part and the order dated 5.1.1998 of the 3rd Joint Civil Judge (SD) Junagadh in Civil Misc. Appln. No. 99/97 below is quashed and set aside only to the extent it grants interim maintenance to the wife-petitioner from the date of the application and it is ordered that she is entitled for the amount of interim maintenance from the date of the application. The husband-respondent is directed to pay all the arrears of the amount of the interim maintenance to the wife-petitioner within a period of three months from today. No orders as to costs in both these civil revision applications. However, wife is at liberty to approach the High Court Legal Services Authority for grant of post facto free legal aid to her. If such an application is filed by her, it is expected of the Authority to decide the same expeditiously and submit its decision in these proceedings. Office is directed to place the decision of the Authority for the perusal of the Court in Chamber as and when it is passed.