Amit Kumar Sharma vs Vithe (S.24)

Allahabad High Court
Amit Kumar Sharma vs Vithe Additional District And Sessions Judge, Bijnor And Others on 8/5/1998

JUDGMENT

D.K. Seth, J.

1. Mr. V. Singh. learned counsel for the petitioner in this writ
  petition, has raised a very Interesting question of law. According to
  him. Section 24 of the Hindu Marriage Act does not postulate grant of
  maintenance to any person other than the wife of the husband. According
  to him, the very scheme of the Section indicates that the maintenance
  is available either to the wife or to the husband, as the case may be.
  according to the provisions contained therein. This cannot be stretched
  to grant maintenance in a proceeding under Section 24 of the Hindu
  Marriage Act to the children.

2. Secondly, he contended that the provision of Section 24 cannot be
  referred to for the purposes of obtaining maintenance for the
  mother-in-law of the respondent wife on an application under Section 24
  of the Hindu Marriage Act. According to him by no stretch of
  imagination, mother of the husband could be brought under the purview
  of Section 24 of the said Act filed by the wife for the purposes of
  grant of maintenance.

3. For the purpose of deciding the issue, it is necessary to mention
  the following facts giving rise to the present writ petition- The
  petitioner-husband filed O.S. No. 60 of 1995. under Section 13 of the
  Hindu Marriage Act against the opposite party No. 3. wife, for divorce
  before the Additional Civil Judge (Senior Division), II, Bijnor. In
  connection with the said proceedings, the wife had filed an application
  under Sections 24 and 25 of the Hindu Marriage Act claiming maintenance
  for herself and two minor children aged about 3-1/2 years and 6 years
  and ailing mother of the husband on the ground that she is looking
  after the mother of the husband and spending around Rs. 1.200 per month
  on account of her treatment. This application was allowed by an order
  dated 25th January, 1997 in Misc. Case No. 44 of 1996.

4. The said order dated 25th January. 1997 was challenged by means of
  appeal being Misc, Appeal No. 26 of 1997. By an order dated 30th May,
  1997 the Additional District Judge. VIIIth Court. Bijnor, had dismissed
  the said appeal and the order of learned Additional Civil Judge, Senior
  Division II passed on 25th January, 1997 was affirmed. These two orders
  are being challenged in this writ petition.

5. A reading of the order passed by the learned Civil Judge. Senior
  Division shows that the maintenance of sum of Rs. 3,000 was granted
  along with cost of litigation of Rs. 1,500 for the maintenance of the
  wife, two children and her mother-in-law. The appellate court had
  affirmed the said order which included the maintenance of mother of the
  husband.

6. The wife had alleged that the husband has been working in the Police
  Department and drawing a salary of Rs. 4.200 per month and he is also
  owner of a Maruti Car No. DL 2-C 3108 which is operated as Taxi by the
  husband by which he earns about Rs. 7.000-8.000 per month therefrom.
  She also alleges that the husband is also owner of a truck from which
  he earns about Rs. 17.000-18,000 per month. Thus he earns more than Rs.
  21,000 per month. On these allegations the Courts had come to the
  finding that a sum of Rs. 3,000 should be granted as maintenance. Both
  the Courts have found that the husband did not disclose his own income
  and did not controvert the allegations made by the wife.

7. [ have heard Shrl Slngh at length and have also heard Sri V. K. Rai
  brief-holder appearing for the learned standing counsel who assisted
  the Court since this matter involves questions of law.

8. Learned counsel for the petitioner Mr. Singh did not dispute the
  finding by both the Courts that the husband did not disclose his income
  nor, had disputed the factual allegations made by the wife in the
  application under Section 24 of the said Act. However, he has insisted
  on legal proposition as indicated above.

9. Mr. Singh also contended that no application under Section 25 could
  be maintained and no order under Section 25 could be made during the
  pendency of the proceedings. Such order can only be made at the time of
  passing the decree. Therefore, according to him, the Courts below could
  neither invoke the provisions of Section 25 nor the wife could file the
  application under Section 25.

10. Section 25 of the Hindu Marriage Act clearly lays down that the
  Jurisdiction under Section 25 can be exercised “at the time of passing
  any decree or at any time subsequent thereto”. The very expression
  referred to above indicates that no application under Section 25 could
  be decided except at the time of passing of the decree. However, this
  section does not make the provision attracted during the pendency of
  the proceedings but the Court assumes jurisdiction to decide such
  application only at the time of passing of the decree. The Court may
  exercise its jurisdiction even after the decree is passed if such an
  application is made for such purposes either by the wife or by the
  husband. Therefore, Section 25 can be Invoked only at the time of
  passing the decree or thereafter.

11. Now the application which was described as an application under
  Section 24 and Section 25 of Hindu Marriage Act can very well be
  treated to be .under Section 24 till the time of passing the decree and
  so far as the claim made in the said application with regard to Section
  25 is concerned, the same can be determined at the time of passing the
  decree. The said application can be segregated into two phases.
  Inasmuch as before the decree is passed. It is not necessary that an
  application has to be made before the Court for such purpose though it
  is mandatory that such an application is to be made after the decree is
  passed. But then it is not necessary to go into this question. Still it
  is open to the wife to make such application even before the decree is
  passed and which may be decided accordingly. Therefore, it is not
  necessary to go into the question at this stage whether the disposal of
  the application under Section 24 and Section 25 of the said Act could
  prevent the petitioner’s wife from making such an application, since
  the Court has no jurisdiction to decide such an application except at
  the time of passing the decree. In that event, the dismissal of such an
  application cannot affect the question of Section 25 that might crop up
  at the time of passing the decree. Thus scope of Section 25 is still
  open to the wife if she is so advised.

12. It is a settled principle of law that any description of the
  petition does not determine the character of the petition. It is the
  content and the substance and the relief sought will determine the
  character of an application. In this case wife had prayed for
  maintenance during the pendency of proceedings for herself, minor
  children and her mother-in-law (mother of the husband). Therefore, the
  Court did not commit any illegality in deciding the said application as
  an application under Section 24 of the said Act and treating the same
  as such.

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13. Now the question whether the mother can be brought into the purview
  of Section 24 of the said Act may be taken up first. Section 24
  provides 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 proceeding, it may, on the application of
  the wife or the husband, order the respondent to pay to the
  petitioner, the expenses of the proceeding, 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.”

14. A plain reading of the Section shows that it contemplates
  maintenance either to the wife or to the husband. It does not include
  maintenance either for the children or the mother of the husband.
  Whether the children would be entitled or not would be examined later
  on. At the moment, it is clear from Section 24 that the provisions
  thereof apply for the purpose of securing maintenance to the wife or
  the husband. The maintenance under the Hindu Marriage Act is available
  to the parties to the proceedings with regard to the lis involved. The
  lis is confined to the extent of marriage between the wife and the
  husband. There cannot be any lis for the mother in respect of the
  proceedings between the husband and wife Involving their marriage. The
  mother is in no way connected with the lis relating to the marriage
  between the husband and the wife and, therefore, the provisions of
  Section 24 can never be stretched to include the maintenance of the
  mother in a proceedings under Section 24 of the Hindu Marriage Act.

15. Admittedly Section 125 of the Code of Criminal Procedure is
  available to the parents against a neglecting child. Thus a mother can
  enforce her right of maintenance through Section 125, Cr. P.C. She is
  also entitled for maintenance through Section 20 of the Hindu Adoptions
  and Maintenance Act, which also provides a right to the parent to
  recover maintenance from neglecting children. Both Sections 125. Cr.
  P.C. and Section 20 Hindu Adoptions and Maintenance Act are regarding
  maintenance of parents by neglecting children. There is an alternative
  remedy available, the Hindu Marriage Act being non-applicable in
  respect of securing such maintenance by parent, the maintenance of the
  mother-in-law (mother of the husband) cannot be brought under the
  purview of the Section 24 of the said Act.

16. However, Mr. P. K. Rai tried to stretch the meaning of Section 24
  by seeking to make out a point that the maintenance of the wife would
  Include the maintenance for the mother-in-law on the ground that they
  are living together, the wife cannot allow the mother-in-law to starve
  while feeding herself. Similarly the wife cannot deprive the children
  from education while maintaining herself alone with the maintenance
  provided by the husband. The child is a part of the mother’s own
  existence and similarly she cannot allow the ailing mother-in-law to
  die without treatment while keeping herself alive.

17. The submissions made by Mr. Rai is very attractive and is also
  supported by Indian Social Culture and Tradition. It is an admitted
  fact that the Indian social fabric involves maintenance of the parent
  with religious scruples and devotion but then the Court is called upon
  to interpret the law and not the religious and social duties. So far as
  the social or religious duties are concerned, the law provides therefor
  through Section 125, Cr. P.C. and Section 20 of Hindu Adoptions and
  Maintenance Act. Therefore, it is not a question of absence of law.
  When there is specific provision of law on the basis of religious
  scruples or social system, it would not be permissible to stretch
  Section 24 to the extent of taking the place of Section 125, Cr. P.C.
  and Section 20 of Hindu Adoption and Maintenance Act nor it can overlap
  the said section. As the observation made earlier. Section 24 does not
  postulate the scope of granting maintenance to the mother of the
  husband even when she is ailing and lives with the wife. Thus so far as
  the inclusion of mother-in-law of the wife within the ambit of grant of
  maintenance is concerned, cannot be sustained.

18. Now. the question with regard to maintenance of children may be
  taken up. Admittedly Section 24 does not postulate the maintenance of
  children specially within the scheme of the said section. A section
  cannot be interpreted out of context of the scheme of the Act itself.
  For the purpose of interpretation of the section, the scheme of the Act
  may be considered. Now admittedly if the children are minors and they
  are form out of the wed-lock. then it is within the lis of marriage
  since the children are the out-come of the marriage. Therefore, it
  cannot be said that the children are out of the scope of marriage and
  cannot be contemplated as subject-matter within the lis with regard to
  their wellbelng. Section 26 provides for the custody, maintenance and
  education of the children. It is also one of the aspect that has been
  included within the ambit of the Act itself to provide for custody,
  maintenance and education of the child. Thus, in any proceeding
  relating to marriage, the questions of custody, maintenance and
  education of the children are very much part of the lis.

19. As rightly contended by Mr. Rai. the children are part of the
  existence of the mother, it is not only socially and culturally true
  but also medically and physically true. Inasmuch as the children really
  live in the womb of the mother for 9 months and the existence of the
  children is developed out of the own existence of the mother. So long
  the child is not bom, it is part of the mother even physically. Even
  after the birth, the child cannot sustain without the mother. Thus, the
  baby remains the part of the mother. At the same time, it is
  preposterous to think that the mother would be feeding herself with the
  maintenance provided to her keeping the children unfed, starved and
  uneducated. It is the bounden duty of the mother to bring up the child
  as best as she could be able to do. It is also a psychological
  structure of the mental spirit of the mother to look after the
  wellbeing of the children before her own self. It is no.t unknown and
  is very common that the mother had sacrificed her own life for the sake
  of the children. It is preposterous for the mother’ to think that if
  the law does not provide maintenance for the children, therefore, the
  mother should maintain herself without maintaining the children. Law is
  meant for the society and society is not meant for law. Law is meant
  for the wellbelng of the society itself. The Act itself has provided
  for the wellbeing of the child as provided in Section 26. Therefore. It
  seems that we can stretch Section 24 to what Mr. Rai wanted to stretch
  even without the existence of Section 26 of the Act. But then such an
  interpretation is supported by the very existence of Section 26 which
  Itself goes to support the view as to why the wife should maintain the
  child as well. Keeping such a situation in view, the Legislature has
  provided in Section 26 for the custody, maintenance and education of
  child.

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20. While reading Section 24 in the context of the scheme of the Act
  having regard to Section 26, it presupposes that the maintenance as
  contemplated under Section 26 can very well be Included and prayed for
  within the ambit of Section 24 of the said Act. Inasmuch as Section 26
  provides two situations in which the same can be involved in the first
  phase. Section 26 postulates :

“In any proceeding under this Act, the Court may, from time to time,
  pass such interim orders and make such provisions in the decree as
  it may deem just and proper with respect to the custody, maintenance
  and education of minor children, consistently with their wishes,
  wherever possible…..”

21. Thus, the above provision makes it clear that the Court has power
  to make provision for custody, maintenance and education of minor
  children either by way of interim order or by way of provision made in
  the decree. If the Court may have power by way of interim order, it can
  very well do it while deciding the application under Section 24 of the
  Act. Section 26 as far as this fact is concerned does not postulate
  that such order, interim or otherwise, can be made only upon the
  application being made for the purpose. The expression ‘as it may deem
  just and proper connotes that the Court may pass an order if it thinks
  just and proper, even by way of interim measure without requiring the
  necessity of making of an application for the purpose by any of the
  party. It is the duty of the Court to make such provision for the minor
  children as it may deem just and proper. It is also incumbent to look
  into the wellbeing of the children as far as possible. Section 26 makes
  it incumbent upon the Court to exercise such discretion on the basis of
  facts and circumstances of the case with regard to the custody,
  maintenance and education of the children.

22. Therefore, when deciding the application under Section 24 of the
  said Act, the Court has every jurisdiction to include the children for
  their maintenance and education and make adequate provision for the
  purpose while granting maintenance to the wife under Section 24.

23. So far as the question that such provision can be made even when
  application is supported by reason of framing of Section 26 which deems
  a Stage subsequent to the decree. For the custody maintenance and
  education of the children is concerned, it is for the Court to make
  provision even after the decree is passed. But such provision can be
  had only on the basis of an application. It is making two distinct and
  separate compartments with regard to the stage before the passing of
  the decree and subsequent thereto. It is evident by the two stages one
  up to the decree and other after the decree. So far as the stage prior
  to the decree, the Legislature did not indicate that the jurisdiction
  under Section 26 is to be exercised only upon an application. Whereas
  in respect of the stage after the decree, it had Indicated that such
  provision can be availed of only through an application. When one
  section confers two stages. Legislature deliberately omitted the
  requirement of making application at one stage. Therefore, it cannot be
  said that exercise of jurisdiction under Section 26 till the decree is
  passed is dependent on an application as is the case after the decree
  is passed. This is also supported from the very expression used in
  Section 24 which is also invoked through an application as is expressed
  in the said section to express “it may. on the ‘application of wife or
  the husband”. Therefore, when Section 24 postulates making of an
  application and Section 26 is divided in two stages and required making
  of an application at the second stage, it can safely be interpreted
  that no application is necessary for the first stage.

24. If no application is necessary for the custody and maintenance of
  the children under Section 26 when” it is within the Rrst stage, then
  it can very well be exercised under Section 24, while making provision
  for the wife’s maintenance which will include the maintenance and
  education of the children.

25. In the case of Smt. Jasbir Kaur Sehgal v. District Judge, Dehradun
  and others, 1997. (7) SCC 7, the Apex Court while dealing with similar
  question had held that under the Hindu Adoptions and Maintenance Act.
  1956, it is the obligation of a person to maintain his unmarried
  daughter if she is unable to maintain herself. In this case since the
  wife has no income of her own. It is the obligation of the husband to
  maintain her and her two unmarried daughters, one of whom is living
  with his wife and one with him. Section 24 of the Act no doubt talks of
  maintenance of the wife during the pendency of the proceedings but this
  section cannot be read in isolation and cannot be given restricted
  meaning to hold that it is the maintenance of the wife alone and no one
  else. Since the wife is maintaining the eldest unmarried daughter, her
  right to claim maintenance would include her own maintenance and that
  of her daughter. This fact has to be kept in view while fixing the
  maintenance pendente lite for the wife. We are aware of the provision
  and Section 26 of the Act providing for custody of minor children,
  their maintenance and education but that section operates in its own
  field.

26. The view taken by the Apex Court in the above case supports the
  view which I have taken in this case.

27. Therefore, I am unable to agree with the contention of Mr. V.
  Singh. In my view, the maintenance of the children could very well be
  included within the ambit of Section 24 of the said Act.

28. Mr. Singh had relied upon two decisions in support of his
  contention. The first one is Bankim Chandra Roy v. Smt. Anjali Roy. AIR
  1972 Pat 80, while interpreting scope of Section 24. It has been held
  that the maintenance of children are not within the scope and ambit of
  Section 24. It had observed in paragraph 3 of the said judgment as
  follows :

“Coming to the merits of the orders. I find that the learned
  Judicial Commissioner has allowed maintenance to the wife not only
  for her support but also for the support of her three children all
  of whom are above the age of 10. Ordinarily she would not be
  entitled to their custody. But that apart let me read Section 24 of
  the Act-

“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 proceeding, 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.”

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It would thus be seen that an order can be made if the petitioner
  has no independent Income sufficient for her or his support. No
  monthly allowance can be granted under Section 24 for the support of
  the children. That being so, the grant of monthly allowance of Rs.
  325 not only for the support of the respondent but also for the
  support of the three children is contrary to law and has been made
  by committing an illegality in exercise of the jurisdiction of the
  Court under Section 24 of the Act.”

29. A reading of said Judgment shows that the said judgment had
  proceeded only on the plain reading of the provision contained in
  Section 24 of the Act. It did not examine the scheme of the Hindu
  Marriage Act. Neither it had considered the Impact and implication of
  Section 26 of the Act. The mere reasoning given in support of the view
  taken is on the basis of a plain reading of Section 24 of the said Act.
  Be that as it may. In view of the discussions made above. I am unable
  to persuade myself to agree with the reason given in the said decision
  where it has been held that Section 24 does not Include maintenance of
  the children. The Judgment of the Patna High Court was delivered by a
  learned single Judge. Admittedly the decision of an other High Court
  has persuasive value but it is not binding.

30. For the foregoing reasons, I am unable to persuade myself to agree
  with the connection of Mr. Singh as discussed hereinbefore.

31. The next judgment relied upon is in the case of Puran Chand v. Mst.
  Kamla Devi. AIR 1981 J&K 5, wherein similar view was taken by a learned
  single Judge. In the said judgment it was observed :

“Section 24 of the Hindu Marriage Act reads thus :

“Where in any proceeding under this Act it appears to the Court that
  either the wife or 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 proceeding, and monthly during the proceeding such sum as.
  having regard to the petitioner’s own income and the Income of the
  respondent, it may deem to the Court to be reasonable.”

On a plain Interpretation of this Section, a child born out of the
  wedlock between litigating husband and wife is not entitled to
  maintenance pendents lite. Such maintenance can be granted in favour
  of the wife or the husband as the case may be. The maintenance is to
  be allowed on monthly basis “during the proceeding’. The words
  “during the proceeding” connote that the maintenance shall be
  admissible from the commencement till the conclusion of the
  proceedings in the trial court. The proceedings in the trial court
  would naturally commence from the date on which the Issues are
  framed, which is ordinarily known as the first hearing. In the view
  expressed above, the lower court was not justified in allowing
  maintenance. Pendente llte in favour of Raj an, the minor daughter
  of the parties. Nor even in allowing such maintenance in favour of
  the wife from the date of the filing of the petition.

The Court ought to have disallowed the request for maintenance
  pendente lite so far as Rajan was concerned, and allowed the same in
  favour of the wife from the date the issues were struck. Allowing
  this appeal, 1 modify the order accordingly. There shall be no order
  as to costs.”

32. For the reasons similar to one for which I have not been able to
  persuade myself to agree with the judgment of Patna High Court, I am
  unable to agree with the judgment of Jammu and Kashmir High Court.

33. Now turning to the merits of the case, it appears that both the
  Courts had concurrently found that the wife has alleged that the
  husband has an income of Rs. 4.200 from his salary and further a sum of
  Rs. 17.000 to 18,000 from his business of plying Taxi and Truck.
  Insplte of having been given an opportunity, the husband did not come
  forward denying the allegations and did not produce anything to show
  that the Income alleged by the wife was Incorrect. If both the Courts
  accept that the Income of the husband is above Rs. 20,000 since the
  same is not being controverted by the husband, this Court while sitting
  in writ jurisdiction cannot interfere with the finding of fact,
  therefore, the contention that normally 1/5 of the income is to be
  awarded as maintenance in a proceeding under Section 24 as laid down in
  various decisions cannot be sustained. Both the Courts below did not
  believe the income of the husband to the extent of Rs. 4.200. on the
  other hand both the Courts believed that the husband’s income is above.
  Rs. 20,000 and. therefore. 1/5 of Rs. 20,000 comes to around Rs. 4.000.
  Whereas the award is only Rs. 3,000 which is less than 1/5th,
  therefore, it is not necessary to go Into that question. The point so
  raised by “Mr. Singh is overruled.

34. Now admittedly if it is assumed that the husband has an income
  above Rs. 20,000 in that event Rs. 3.000 for the maintenance of the
  wife and two children is not at all towards the higher side. Having
  regard to the present cost of living Rs. 3,000 is not even sufficient
  for maintenance of the wife and the children. Even if the mother of the
  husband is excluded even then the sum of Rs. 3,000 cannot be reduced.

35. Therefore. 1 do not find any reason to interfere with the award of
  Rs. 3,000 as maintenance in the present case though however, the same
  would be meant for the wife and children and not for the mother of the
  husband. The order of both the learned Courts below is, therefore,
  modified to the extent that maintenance is granted for the wife and
  children to the extent Rs. 3,000 as granted by both the Courts below
  concurrently. It is open to the mother of the husband to apply for
  maintenance either under Section 125 or under Section 20 of Hindu
  Adoptions and Maintenance Act as the case may be or as she may be
  advised. If such steps are taken, that should be decided in accordance
  with law without being influenced by any observation made in this order.

36. With the above observation, this writ petition for the foregoing
  reasons, stands dismissed. However, there will be no orders as to costs.

37. Let a copy of this order be communicated to the Court below by the Registry within 7 days.

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