Revision of maintenance pendente lite dismissed

IN THE HIGH COURT OF MADHYA PRADESH (INDORE BENCH)

Civil Revn. No. 230 of 1988
Decided On: 31.10.1988

Appellants: Dashrath Yadav
Vs.
Respondent: Saroj

Hon’ble Judges:S.K. Dubey, J.

Counsels:For Appellant/Petitioner/Plaintiff: S.A. Mev, Adv.For Respondents/Defendant: Chandwarkar, Adv.

Subject: Family

Catch Words: Acts/Rules/Orders: Hindu Marriage Act, 1955 – Sections 24 and 25; Civil Procedure Code (CPC), 1908 – Section 115

Cases Referred: Yogeshwar Prasad v. Smt. Jyoti Rani, AIR 1981 Delhi 99; Smt. Ram Piari v. Piara Lal, AIR 1970 Punj & Har 341; Patel Dharamshi Premji v. Bai Sakar Kanji, AIR 1968 Guj 150; Tripta Chhabra w/o Ajit Kumar Chhabra v. Ajit Kumar Chhabra, 1988 MPLJ 17; Shobhana v. Sharad Shridhar, 1975 MPLJ 43

Disposition: Revision dismissed

ORDER

S.K. Dubey, J.

1. This is a revision against the Order 14-7-1988, passed by Shri R. C. Joshi, Fifth Additional Judge to the Court of the District Judge, Indore in Case No. 12/84, whereby the learned Judge has granted interim maintenance @ Rs. 150/- per month to the respondent from-the date of the application, i.e. 1-7-1976 and further the petitioner has been directed to deposit the monthly interim maintenance by the 15thof the next calendar month.

2. The short facts leading to this revision petition are. thus : That the petitioner obtained a decree for divorce dt. 6-8-1985 in the Hindu Marriage Case No. 23/84, passed by the Fifth Addl. Judge to the Court of the District Judge, Indore. Against this, the respondent preferred an appeal under Section 28 of the Hindu Marriage Act. 1955 (for short “the Act”). At the time of hearing of ‘the appeal, the respondent filed an application under Section 25 of the Act for permanent alimony of Rs. 250/- per month for herself and Rs. 150/- for the children. The appeal of the respondent was dismissed on 3-7-1986 and the decree for divorce passed in favour of the petitioner was confirmed. This Court while dismissing the appeal observed in para 6 of the judgment that the application under Section 25 of the Act for permanent alimony, ought to have been made before the learned trial Court after the disposal of the petitioner’s suit. However, considering the facts and circumstances of the case, the interest of justice demands that this application should be sent to the trial Court for disposal in accordance with law, after affording reasonable opportunity to both the parties to file reply documents and oral evidence, as they deem proper. The parties appeared before the Court but the application moved by the respondent under Section 25 of the Act, was not received by the trial Court. In the circumstances, the respondent moved an application on 24-9-1986, contending therein that in the proceedings for divorce under Section 13(a) and (b) of the Act, the respondent was getting interim maintenance @ Rs. 150/-per month, which has been stopped by the petitioner from 6-5-1985. In this application under Section 25 of the Act, the respondent claimed maintenance @ Rs. 250/- per month for herself and Rs. 150/- per month for the children from 6-5-1985 and also sought for a relief for deposit of interim alimony from 6-5-85, which was granted to the respondent in the proceedings for divorce. The petitioner did not file any reply. On 28-9-1987, again the respondent filed an application for award of interim alimony @ Rs. 250/- per month till the decision of the petition under Section 25 of the Act. This application was supported by an affidavit. The petitioner filed his reply on 6-11-1987, which was supported by an affidavit, wherein the petitioner contended that the respondent is an educated lady and is earning about Rs. 1,000/- per month by doing the job of typing, tailoring, knitting also and also by serving. Other allegations with respect to the ornaments etc. were also made, The petitioner also contended that though his pay is Rs. 1269.48 per month but he is getting nothing from the salary as the amount of loan is being deducted and/or adjusted from his salary.

3. The learned trial Court after perusing the application and the documents on record, passed the impugned order, whereby an interim maintenance was granted to the respondent @ Rs. 150/- per month from 1-7-1985 (1986) i.e. from the date when the respondent filed an application under Section 25 of the Act, before the High Court in the First Appeal.

4. Shri S. A. Mev, learned counsel for the applicant contended that the learned trial Court, while considering the application for grant of interim alimony till the decision of the application Under Section 25 of the Act, erred in not holding an enquiry. Learned counsel also contended that the respondent is an earning lady and to satisfy this Court produced a certified copy of memo of the First filed by the respondent, which has been decided against her vide order dt. 3-7-1986. Learned counsel also placed a certified copy of the final order in the First Appeal No. 84/85 before me, wherein this Court observed that the application Under Section 25 of the Act for permanent alimony ought so have been filed before the trial Court and this Court while dismissing the appeal, directed that this application shall be disposed of by the trial Court in accordance with law after affording reasonable opportunity to both the parties, to file reply, documents and oral evidence, as they deem proper. Learned counsel also placed before me the main petition filed under Section 25 of the Act, application dt. 28-9-1987 supported by an affidavit of the respondent for grant of interim alimony till the decision of the application Under Section 25 of the Act, reply of this application filed by the petitioner supported by affidavit. After placing all the documents, as aforesaid, the learned counsel-for the applicant contended, that in any case. while considering the application Under Section 25 of the Act, the application for grant of interim alimony was not maintainable. In any (case) if it was maintainable, then the interim alimony could not have been granted from the date of the application filed in the High Court but the Court only could have granted it from the date of the order passed by the trial Court or at the most from the date of the application for interim alimony. Hence, Shri Mev contended that the order of the trial Court is without jurisdiction and deserves to be quashed with a direction for deciding the application for grant of interim maintenance by holding an enquiry.

5. Shri Chandwarkar, learned counsel for the respondent contended that the application so filed Under Section 25 of the Act before the High Court, would be deemed to be the date of the institution of the proceedings and when the proceedings were being delayed by the petitioner, the respondent, who has no source of livelihood, feeling helplessly, presented the application for grant of interim alimony from the date of the order of the High Court till the decision of the application Under Section 25 of the Act. The trial Court held an enquiry and after the perusal of the documents and affidavits on record of the respective parties, passed an order of interim alimony. Learned counsel contended that while considering the application for interim alimony, it is not necessary to hold a detailed enquiry like that of a suit. Learned counsel further contended that even in the proceedings Under Section 25 of the Act, the Court has jurisdiction to grant the relief of interim alimony. Learned counsel placed reliance on the case of the Delhi High Court reported in Yogeshwar Prasad v. Smt. Jyoti Rani, AIR 1981 Delhi 99, and also a case reported in Smt. Ram Piari v. Piara Lal, AIR 1970 Punj & Har 341.

6. After hearing the learned counsel on admission, I am of the opinion that this revision deserves to be dismissed. An application under Section 25 of the Act for grant of permanent alimony, even (if) a decree for divorce is passed, can be filed at any time as is clear from the language of Section 25 of the Act. As the decree was confirmed by the High Court in the First Appeal, the application was filed. In view of this fact, the date of filing of the application will be the date when the application was filed in the High Court i.e. 1-7-1986. It is strange and regrettable state of affairs that even after the order of this Court, the said application did not reach to the trial Court. Hence, the application was filed afresh before the trial Court. During the pendency of the main application Under Section 25 of the Act, an application for interim alimony was filed by the respondent stating that the interim alimony, which was granted in the divorce proceedings, has been stopped by the petitioner from 6-5-1985, hence she be awarded interim maintenance during the pendency of the application Under Section 25 of the Act from the said date or in any case from the date of the application filed before the High Court Under Section 25 of the Act. Section 25 of the Act nowhere lays down that the interim maintenance cannot be granted during the pendency of the application for permanent alimony. An application for interim maintenance during the pendency of the application for permanent alimony Under Section 25 of the Act till its decision is maintainable. In the case of Yogeshwar Prasad. (AIR 1981 Delhi 99) (supra), the Delhi High Court, relying on a Division Bench case of the Gujarat High Court in Patel Dharamshi Premji v. Bai Sakar Kanji, AIR 1968 Guj 150, considered about the maintainability of the interim alimony during the pendency of the proceedings Under Section 25 of the Act and observed that expression ‘any proceedings under this Act’ appearing in Section 24 covers the proceedings under Section 25 thereof. Section 25 contemplates that an order for permanent alimony can be made at the time of the passing of any decree under the Act or any time thereafter. Now, if a spouse has to make an application after any decree under the Act has been passed and has no sufficient means of his/her own such spouse has to be provided for prosecuting the application for permanent alimony when the other spouse opposes any grant thereof. Any other construction will be narrow and will lead to frustration of the provisions. Section 25 is a continuation of the main proceedings. Placement or numbering of the sections or the description of one set of documents as petitions and the other set as applications does not alter this position. The purpose of using the words ‘husband’ or ‘wife’ is to identify the position occupied by the parties in the main proceedings, and not to exclude ex spouses. I am in respectful agreement with the Delhi High Court and as such I hold that the application for permanent alimony Under Section 24; of the Act was maintainable.

7. See Yogeshwar Prasad’s case, (AIR 1981 Delhi 99) and Smt. Ram Piari’s case, (AIR 1970 Punj & Har 341) (supra). For considering the application for grant of interim maintenance, only independent income of wife can be taken into account or the conduct of the applicant, who claims interim maintenance so as to debar her from getting the interim maintenance. The petitioner has placed nothing before the trial Court or before this Court that the respondent has got an independent source of earning except the bare and vague affidavit filed before the trial Court, which was not believed by the trial Court. Nothing against the conduct of the respondent has also been pointed out so as to disentitle her from the interim maintenance. While hearing on an application for grant of interim maintenance, the law does not require holding of regular trial or recording of evidence, though in some cases it may be necessary to record evidence, but it depends on the facts of each case. Moreover, no material was placed by the petitioner before the trial Court so as to suggest that it was necessary to record evidence for proving that the respondent has her own independent source of earning. The trial Court held an enquiry in fact and considered the affidavits and the slips filed by the petitioner with respect to his own income and after considering the same, passed the order, such findings which have been arrived at after appreciation of material on record, cannot be interfered in the revisional jurisdiction.

8. Now coming to the question whether the interim maintenance ought to have been awarded from the date of the filing of the main petition in which application for interim maintenance has been made, in my opinion, the Court has discretion to grant maintenance pendente lite. Under Section 25 of the Act there is nothing to indicate from which date an order of interim maintenance is to be made effective. But the litigation Under Section 25 of the Act, would be said to be pending from the date when the application is filed and after considering the application, a final order is passed. In the instant case, the lis Under Section 25 of the Act commenced on the date of the filing of the application in the High Court and while considering the application for grant of interim maintenance, it was up to the discretion of the Court either to pass an order from the date of the application filed in the High Court or from the date of the application filed for interim maintenance or from the date of the order so passed. See Tripta Chhabra w/o Ajit Kumar Chhabra v. Ajit Kumar Chhabra. 1988 MPLJ 17 and Shobhana v. Sharad Shridhar, 1975 MPLJ Note 43 p. 27. Considering the facts of the case and the conduct of the parties, the trial Court passed the order for interim maintenance from the date of the application filed in the High Court. In my opinion, it cannot be said in the facts of the case, that the discretion was not rightly and judiciously exercised.

9. In the result, this revision is disposed of finally and is dismissed at the motion stage only. Counsel’s fee Rs. 350/-, if certified.

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