ORDER
D.P. Mohapatra, J.
1. The core question that arises for determination in this case is whether the Court has jurisdiction to revise its order granting interim maintenance and expenses of the proceeding to the wife during pendency of a proceeding under the Hindu Marriage Act (for short, “the Act”). The answer to the question depends on interpretation of the provision in Section 24 of the Act.
2. The facts of the case relevant for the present proceeding may be stated thus :
On the petition filed by the opposite party for divorce against the petitioner O. S, No. 139 of 1984 has been registered; it is pending in the Court of the Subordinate Judge, Kendrapara. On the application filed by the petitioner for herself and for her minor son the learned Subordinate Judge by order dated 20-11-87 in Misc. Case No, 88 of 1985 directed the opposite party to pay Rs. 250/-per month towards interim maintenance and Rs. 100/- towards expenses of the proceeding. There was considerable delay on the part of the opposite party to comply with the order; the matter was carried to this Court and under the order of this Court the opposite party has paid to the petitioner the expenses of the proceeding and the monthly maintenance till December, 1990. As the matter stood thus, the petitioner filed the application for enhancement of maintenance and expenses of the proceeding alleging, inter alia, that in the meantime there have been material changes in the circumstances necessitating revision of the previous order. According to the petitioner the changes in the circumstances are that the opposite party, an employee of the Life Insurance Corporation of India who was then drawing monthly
salary of Rs. 675/- is now drawing Rs. 2500/-per month; the petitioner is suffering from gastric trouble and needs extra funds for her treatment; the minor son of the parties is to be sent to school and etc. The petitioner further prayed that till her application for enhancement of maintenance and litigation expense is disposed of she should not be directed to file her written statement in the suit.
3. The application was contested by the opposite party on the ground of its maintainability as well as on merit.
4. The learned Subordinate Judge by his order dated 19-11-90 rejected the petitioner’s application as not maintainable and directed her to file written statement m the suit. This order is being assailed in the revision petition.
5. At the commencement of hearing of the case it was submitted by the learned counsel for the petitioner that during pendency of this case the petitioner filed her written statement. Therefore her plea that she should not be directed to file her written statement till her application for enhancement of maintenance and expenses of the proceeding is disposed of no longer arises for consideration.
6. On perusal of the impugned order it appears that the main reason given by the learned Subordinate Judge in support of his finding that the application is not maintainable is that Section 24 of the Act does not contemplate filing of successive applications for interim maintenance and costs of the proceeding and therefore the Court has no jurisdiction to entertain an application for enhancement of the amounts already granted by it. In view of his finding regarding maintainability the learned Subordinate Judge did not consider the application on merit.
7. In the facts and circumstances discussed in the preceding paragraphs the question formulated earlier arises for consideration.
Considering the language of Section 24, the intent and purpose behind the said provision, I am of the view that the decision of the learned Subordinate Judge is unsustainable. Before discussing the point I would like to clarify that it is not in dispute that the application claiming maintenance filed earlier as well as the application for enhancement of the amount were filed by the petitioner for herself and for her minor son. This has a bearing on the question which will appear from the discussions hereinafter. Section 24 of the Act reads as follows :
” Section 24. 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 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.”
From the language of the provision it is evident that wide discretion is conferred on the Court to pass order for maintenance pendente lite and costs of the proceeding.
But the discretion is judicial and not arbitrary or capricious. The initial words of the section “in any proceeding under this Act” and the words “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” are clearly suggestive of the wide amplitude of the discretionary power conferred on the Court. It is also clear from the section that the amount of maintenance that one spouse may be ordered to pay to the other must be such as appears to be reasonable to the Court in exercise of that discretion and the Court in doing so must have regard to the petitioner’s own income and the income of the respondent.
Any decision on the subject of alimony under the section must necessarily turn on the facts and circumstances of each case and no fixed rules can be expected on the question. While determining the quantum of maintenance the Court has not only to take into consideration the income of the applicant and the respondent as provided in the section, but also relevant facts and circumstances in the case including the conduct of the parties. In its very nature the quantum of interim maintenance cannot be taken to be a fixed amount which, if determined once, can in no circumstance be altered. The change in the circumstances relevant to the matter may call for a revision of the order. No doubt Section 24 unlike Section 26 does not expressly provide that the Court may pass orders for interim maintenance/expenses of the proceeding from time to time. But there is no express or implied bar in the provision for exercise of such jurisdiction in a deserving case. Therefore in my view it will neither be legal nor just and proper to limit the wide discretionary power conferred on the Court by holding that the Court has no power to modify or vary its order awarding interim maintenance even on proof of changed circumstances.
8. To prop up my finding, I may refer to a few decisions. The Rajasthan High Court in the case of Smt. Devki v. Purshotam Kewalia, reported in AIR 1973 Raj 2 held that Section 24 of the Act vests a wide discretion in a Court in the matter of fixation of pendente lite maintenance and costs of the proceeding; if there is no enabling provision in the Act for changing such an order by the Court, there is at the same time no disabling provision either and, therefore, the Court can in an appropriate case exercise its inherent powers to vary an order of maintenance provided there is a change in circumstances justifying variation of the order,
A similar view was taken by the Delhi High Court in the case of Smt. Anuradha v. Santosh nath Khanna, reported in AIR 1976 Delhi 246 wherein it was held, inter alia, that a Court exercising powers under Section 24 possesses inhernet jurisdiction and power to vary, modify, rescind or temporarily suspend its previous order; but in this matter the Court must act and exercise its discretion according to well established principles of law.
9. I will next discuss a point which, in my view, is also relevant in this case. As noted earlier, the claim for interim maintenance was made by the petitioner for herself and for her minor son. For the minor child provision is made in Section 26 of the Act for maintenance, education etc. Express provision is made therein to enable the court to pass interim order relating to these matters from time to time. Therefore the Court is undoubtedly vested with power to change/revise its previous order on the application filed on behalf of the minor child. Therefore, considered from any angle, the order of the learned Subordinate Judge refusing to consider the application for modification/revision of his previous order granting maintenance is unsustainable.
10. As noted earlier, while considering the application the primary criterion to be considered would be whether there has, in the meantime, been any change in the circumstances of the case which calls for modification of the order. Several changes in the circumstances have been alleged by the petitioner. Consideration of the same would necessitate enquiry into facts. Therefore for proper adjudication of the matter, I am inclined to direct the learned Subordinate Judge to consider and dispose of the application expeditiously and before proceeding further in the suit. A paltry amount of Rs. 100/- was awarded by the learned Subordinate Judge towards expense of the proceeding. The amount is grossly inadequate to meet the costs of the litigation. Without making reasonable adequate provision to enable the petitioner to meet the expenses of the litigation it will be unjust and improper to require her to produce evidence in support of her pleas taken in the application for modification of the previous order granting interim maintenance and litigation cost. I would therefore direct, as an interim measure, that the opposite party shall pay to the petitioner a sum of Rs. 1000/- towards expenses of the proceeding within two weeks. This amount will be adjusted from the amount due to her towards revised maintenance and litigation expenses which will be determined on the basis of the application filed by her. The decision of the Bombay High Court reported in AIR 1983 Bom 409 (Meena Deshpande v. Prakash Shriniwas) may be referred in this connection.
11. In the result, the revision petition is allowed, the order dated 19-11-90 passed by the learned Subordinate Judge, Kendrapara is set aside and he is directed to consider the application filed by the petitioner for modification/revision of the interim maintenance and expenses of the proceeding granted earlier and dispose it of by the 22nd July, 1991. The opposite party is directed to pay Rs. 1000/- to the petitioner towards interim litigation costs within two weeks.
