Chitra Lekha vs Ranjit Rai on 30 July, 1976

Delhi High Court
Chitra Lekha vs Ranjit Rai on 30 July, 1976
Equivalent citations: AIR 1977 Delhi 176
Bench: B Misra


1. This first appeal under S. 28 of the Hindu Marriage Act, 25 of 1955 (hereinafter referred to as ‘the Act’), has been filed by the wife against the order of Mr. Jagdish Chandra, Additional District Judge. dated 23rd October, 1973.

2. The material facts of the case lie in a narrow compass. The parties had been married on 28th June, 1971. The respondent husband filed a petition for judicial separation on the ground of cruelty under S. 10(1)(b) of the Act. This petition was dismissed with costs in 1973. During the pendency of the petition the appellant, soon after filing the written statement, made an application on 10th August, 1971 under S. 24 of the Act for grant of ad interim maintenance and litigation expenses. The respondent contested the application on the ground that the court had no territorial jurisdiction to entertain the petition and unless this was decided interim alimony could not be granted. The objection was repelled by the trial court and a revision against the same was dismissed with costs. The respondent, instead of pursuing the petition. Absented himself from the court and his petition was, as mentioned above dismissed with costs.

3. Then the appellant before me moved an application before the court below to the effect that her application for interim alimony filed on 10th August, 1971 be granted and the alimony and litigation expenses be awarded to her. This -application has been refused by the court below mainly on the ground that the case itself had come to an end and there was no valid ground to grant alimony or litigation expenses. An authority of the High Court of Myosre, N. Subramanyam. v. Mrs. M. G. Saraswathi, Air 1964 Mys 38, was cited before the learned Judge, who has distinguished the same. Mr. Sethi has challenged the order of the court in this appeal. Notice of the appeal was issued to the respondent, who has not appeared and he has been proceeded against ex party.

4. I have heard Mr. Sethi and have asked him if there is any other authority on the point in his favor. but he has stated that there is- no other decision of the courts taking the view that in termination of the proceedings. Section 24 of the Act 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 proceedings, it may, on the application of the wife or the husband, order the respondent to pay to the petitioner the expenses of the proceedings, 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.”

A bare perusal of the statutory provision shows that it is a condition precedent that there must be proceedings pending under the Act and it should appear to the court that the applicant has no independent income sufficient for support and necessary expenses of the proceedings, then it may pass -an order for payment of expenses of the proceedings and monthly during the proceeding such amount as it may seem to the court to be reasonable. The object behind the provision of law is to provide financial assistance to the indigent spouse to maintain herself (or himself, as the case may be) during the pendency of the proceedings and also to have sufficient funds to defend or carry on the litigation, so that the spouse, does not unduly suffer in the conduct of the case for went of funds (see Smt. Anuradha v. Santhosh Nath Khanna, 2nd ). In Smt. Malkan Rani v. Krishna Kumar, . D. Dua J. (as he then was) observ- for the Division Bench that the object and purpose of S. 24 was to enable the court to see that the indigent spouse was put in a financial condition in which the party concerned might produce proper material and evidence in the case and that a party was not handicapped in or prevented from bringing all the relevant facts before the court for decision of the case because of his or her poverty. It is, therefore, clear that orders on S. 24 application can be passed if the applicant has to prosecute or defend some proceeding under the Act. Its object is not to provide maintenance or damages to the party outside the scope of the proceedings. For such purpose, provisions of law are to be found elsewhere, and separate remedy is to be pursued. In the instant case, there was nothing left for the appellant to defend, as the main petition had terminated and so the grant of the application of the appellant at this stage would take us outside the purview of the object of the statutory provision. So far as the litigation expenses are concerned, the final order of the court awarding costs would take care and no independent case for litigation expenses can be made out in the matrimonial court after the termination of the proceedings.

5. This is not to say that the applications for interim alimony should be allowed to lapse. In fact, orders on such applications should be passed as expeditiously as possible and the party should not be encouraged to continue with the proceedings by deferring orders or implementation of orders under S. 24. This should, however, be done before the proceedings are concluded. But, if there is no legal proceeding left to prosecute or defend at any stage and in any court, then certainly no order under S. 24 of the Act can be passed.

6. In N. Subramanyam’s case (AIR 1964 Mys 38) (supra), the facts were that the husband had applied for a decree of divorce, which was granted. The court had granted permanent alimony of Rs. 35 per month to the wife, but refused her interim maintenance and expenses of the proceedings which she had applied for during the pendency of the case. Both the parties filed appeals. The husband agitated that the alimony granted’, was excessive, while the wife claimed that it should be increased. The dealt with the case of the income of the husband and finally awarded interim maintenance of Rs. 40 per month from the date of the application and Rs. 50 towards the expenses of the proceedings and, in modification of the order of the court below, she was awarded permanent alimony at Rs. 50 per month- In this connection, the court observed as follows,

“The grant of these items undoubtedly is a matter of discretion. But there must be some indication of such discretion being exercised judicially. If the wife has no independent resources, she would, in matrimonial proceedings, be entitled to get from her husband interim maintenance and some amount towards the expenses of the proceedings, irrespective of the merits of the case. The Court below should have awarded her both interim maintenance and some suitable amount for expenses. It should also have passed orders promptly on the application for the award of these items otherwise the very object of the provision for their award would be defeated.

It is no doubt true that, in the case on hand, the duration of the proceedings was short, mainly on account of the fact that there was no contest on the question of divorce. But that in itself was no reason for deferring decision on the respondent’s application to the final staged Nor can it be said that since the proceed- had themselves terminated, there was no occasion to grant interim maintenance or expense. The right to those items, if established, cannot be defeated by allowing time to elapse and the pendency of the proceedings to end. The party concerned may have provided herself with the requisite means in some other way and she is entitled to reimburse herself or to repay others if aim has raised the means from others. Though, under S. 36 of the Indian Divorce Act, and S. 6 of the Bombay Hindu Divorce Act, 1887, interim maintenance is limited to a maximum of 1/5 of the husband’s income, no such limitation is placed under S. 24 of the Act, 1955. The matter is purely one of discretion. It appears to us that Rs. 40 per month towards interim maintenance would be appropriate.

As regards the expenses of the pro- Re. 50 may be regarded as suitably meeting the requirements. ‘Under S. 24 the Court has power to grant interim maintenance for the duration of the proceedings. There is no warrant for limiting its commencement to the date on which the application for the grant of interim maintenance wag made by the respondent, as urged by the learned Advocate for the petitioner. We find that in the present case she received the notice of the petition on 30-12-1960 and we think that she should be awarded interim maintenance from the date up to the date of the termination of the proceedings.”

The facts of the case before the High Court of Mysore were, therefore, clearly distinguishable. The proceedings were still pending in the High Court at the stage of appeal. The question that had been raised related to the grant of alimony permanent as well as interim. In this context, the decision of the High Court, if I can say with respect, was perfectly in accordance with law and the appellate court, in deciding the question of permanent alimony, could certainly grant the interim maintenance, which bad been refused by the trial court This authority cannot be used to support the proposition which Mr. Sethi is contending, that even though the proceedings had been terminated and there is nothing left to prosecute or defend, still an order for alimony must be passed or that it can he passed as compensation for trouble, while the proceedings pending.

7. As a result, I do not find any legal infirmity in the impugned order. There is no merit in the appeal and the same is dismissed. In the circumstances of the ewe, there will be no order as to costs.

8. Appeal dismissed.

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