JUDGMENT
A.P. Ravani, J.
1. The petitioner-original plaintiff filed Hindu Marriage Petition for divorce inter alia on the ground that a decree for judicial separation was passed and after the decree for judicial separation was passed, the requisite period entitling him to pray for decree for divorce has already elapsed. Hence he prayed for decree for divorce. During the pendency of the Hindu Marriage Petition, opponent-wife filed application Exh. 13 and prayed for maintenance pendente lite. After hearing the parties the trial court directed the petitioner-husband to pay an amount of Rs. 500/- as and by way of expenses of the proceedings on or before 16th April, 1984. The trial court also directed the petitioner-plaintiff to pay an amount of Rs. 250/- per month upto 31st March, 1984. The trial court directed that the arrears from the date of institution of the petition upto March 31, 1984 be paid or deposited in Court by the petitioner on or before April 16, 1984. The trial court also directed that the petitioner-husband shall continue to pay or deposit amount at the rate of Rs. 250/- per month from April 1, 1984 every month regularly on or before 10th of succeeding calender month till the hearing and final disposal of the main petition. This order has been passed by the trial court on March 20, 1984.
2. It is against the aforesaid order passed by the trial court that the petitioner has preferred this revision application. It is contended that earlier the respondent-wife had filed Miscellaneous Criminal Application No. 47 of 1981 in the Court of Chief Metropolitan Magistrate under the provisions of Section 125 of the Crimical Procedure Code and had claimed maintenance. However, the application was rejected on January 15, 1982. It is also submitted that in the previous proceedings for judicial separation, being Hindu Marriage Petition No. 307 of 1980 of the City Civil Court, Ahmedabad, no amount of maintenance pendente lite was granted. Therefore it is submitted that the interim maintenance granted in this proceeding for divorce is not legal and valid.
3. Strictly speaking the petitioner cannot be permitted to urge the aforesaid ground inasmuch as this point was not raised before the trial Court. This is a revision application under Section 115 of the Civil Procedure Code. The scope of revision application is very limited. For examining the aforesaid submission the record of the earlier proceedings may have to be looked into. Thus this is essentially a question of fact. Therefore such a question cannot be permitted to be raised. Assuming for a moment that in previous proceedings under Section 125 of the Criminal Procedure Code and in the petition for judicial separation no direction, as regards payment of maintenance was issued in favour of the respondent-wife, then even this circumstance is of no consequence. Rejection of application under Section 125 of the Criminal Procedure Code or refusal to grant interim maintenance during the pendency of previous proceedings for judicial separation do not amount to res judicata. Maintenance pendente lite as envisaged under the provisions of Section 24 of the Hindu Marriage Act has reference to the position of the parties during the pendency of the proceedings before the Court. If 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 the petitioner expenses of the proceedings and certain monthly amount during the proceedings. Thus the Court has to decide on the basis of the material placed before it as regards the independent income of the parties during the pendency of the proceedings before it. While determining this question, the orders passed in previous proceeding!) may be relevant, but such orders cannot operate as res judicata. In an application under Section 24 of the Hindu Marriage Act, all that the applicant has to show is that he or she is not in a position to maintain himself or herself and that he or . the has no independent income to maintain himself or herself and to incur the expenditure necessary for conducting the proceedings. In this view of the matter there is no merit in the contention raised by the learned Counsel for the petitioner and hence the same is rejected.
4. Learned Counsel for the petitioner submits that the interim maintenance could have been granted only from the date of application (i.e. Exh. 13) filed under the provisions of Section 24 of the Act by which the maintenance during the pendency of the proceedings have been claimed. In his submission the amount of maintenance cannot be granted from the date of institution of the main proceedings. Alternatively it is submitted that at the most maintenance pendente lite. could have been granted from the date of service of the notice upon the respondent-wife. The submission cannot be accepted. Section 24 of the Act provides for payment of expenses necessary for conducting the proceedings. It also provides for interim maintenance during the pendency of the proceedings. Section 24 clearly provides that on the application of the wife or husband an order of maintenance pendente lite can be passed. The phrase ‘on the application’ occuring in the section canot be construed to mean that order of maintenance can be passed only from the date of application. All that is necessary is that there should be appending proceeding under the provisions of the Hindu Marriage Act. During the pendency of that proceeding, application for interim maintenance can be filed. In such an application maintenance can be awarded by the Court ‘monthly during the proceeding such sum as having regard to the income of the parties and as it may seem reasonable to the Court’. The provisions of the Section do not limit the power of the Court to grant maintenance from the date of application that may be filed by the party claiming interim maintenance. The Section empowers the Court to grant maintenance during the pendency of the proceedings i.e. from the date of initiation of the proceedings till the same terminates. Therefore the trial Court has not committed any jurisdictional error while granting maintenance from the date of institution of the main proceedings.
5. My attention has been drawn to a decision of the High Court of Calcutta in the case of Smt. Sobhana Sen v. Amar Kanta Sen, AIR 1959 Cal, 455. In that case there was some delay in filing the application for maintenance. Therefore the trial Court refused to grant maintenance from the date of service of notice in the main petition and granted maintenance from a later date. In that connection, it is inter alia observed by the learned single Judge of the Calcutta High Court as follows :
“As already indicated the learned Judge has ordered that the payment of the maintenance would be with effect from 1st May, 1956. The well-known rule is that maintenance in such cases is allowed by the Court from the date of service of notice. In giving his reasons for departure from the rule, the learned Judge says; ‘I refuse maintenance from the date of service of notice in view of the delay on the respondent’s part in coming up with the maintenance petition.’ In my opinion the learned Judge has acted arbitrarily in this matter. The notice was served, according to the statement in the memorandum of appeal, on the 2nd February, 1956. The correctness of this statement in the memorandum of appeal has not been denied. When notice was served on the 2nd February, 1956, it cannot be reasonably said that the wife made undue delay in coming to court on the 1st May, 1956 for an order for maintenance. It is well-known that orders for maintenance are passed even at a very late stage of the proceedings. In my judgment, the learned Judge acted arbitrarily in the exercise of his jurisdiction in refusing to order payment of maintenance with effect from the date of service of notice.”
6. From the aforesaid observations it appears clear that in Calcutta as a rule it appears to have been made a practice to grant interim maintenance from the date of service of notice in the main petition. That may be the practice adopted in Calcutta. The Calcutta High Court has not laid down any principle interpreting Section 24 of the Act that interim maintenance cannot be granted by the Court from the date of institution of the main proceedings. Therefore, even if reference is made to this judgment of the Calcutta High Court the same does not help the petitioner.
7. There is no substance in the revision application. Hence the revision application is rejected. Ad interim relief granted earlier on C.A. No. 2366 of 1984 (in A.O. No. 161 of 1984) stands vacated. It is hoped that the trial court will try to proceed further with the petition pending before it as expeditiously as possible and will make every effort to decide the same preferably before January 31, 1990.
