Kolkata High Court
Malaya Das (Nee) Ghosh vs Basudeb Das on 30/9/1996
JUDGMENT
Tarun Chatterjee, J.
1. This revisional application is directed against an order being order
No. 102 dated 23rd May, 1994 passed by Mr. R.N. Mallick, Choudhury,
Additional District judge, second Court at Alipore in Matrimonial Suit
No. 29 of 1993.
2. On or about 25th April, 1988 the husband, Basudeb Das as a plaintiff
filed a matrimonial suit for divorce against the wife who is the
petitioner in this revisional application under Section 13 of the Hindu
Marriage Act, 1955 (hereinafter referred to as ‘the Act’). On an
application made by |he petitioner in the pending suit for alimony
pendente lite under Section 24 of the Act, the Trial Court by an order
dated 12th September, 1989 provided a monthly maintenance of Rs. 350/-
to the petitioner although in the application the petitioner had prayed
for Rs. 1,250/- per month. In the said order, the Trial Court also
directed the husband to pay a sum of Rs. 500/-to the petitioner on
account of litigation cost and a sum of Rs. 100/-per month on account
of arrears of alimony till the arrear amount was liquidated.
Subsequently, an application for increase of alimony pendente lite was
filed by the petitioner as, according to the petitioner, the salary of
the husband/opposite party was substantially increased in the meantime.
By an order dated 23rd May, 1994 the aforesaid application for increase
of alimony pendente lite was dismissed by the Trial Court. Feeling
aggrieved by the aforesaid order the wife/petitioner has come up to
this Court in revision. This revisional application was moved initially
before a Division Bench of this Court on 5th September, 1994 when the
following order was passed :
“Let affidavit-in-opposition be filed within 10 days from date and
reply thereto, if any, be filed within three days thereafter and let
the application come up for hearing as a contested one fortnight
hence.”
3. In view of the amendment of the appellate side rules this revisional
application was listed for hearing before a learned Judge of this
Court. Finally, this revisional application was taken up for hearing by
me. When this revisional application was taken up for hearing, the
learned Advocate for the husband/ opposite party brought to my notice
the fact of decreeing the suit ex-parte in favour of the
plaintiff/opposite party on 31st March, 1995 by filing a certified copy
of the ex-parte decree in Court which may be kept on record. The
ordering portion of the ex-parte judgment passed on 31st March, 1995 is
to the following effect:
“That the suit is decreed ex-parte. The marriage held between the
parties to the suit on 11 th December, 1983 is declared null and
void.”
4. The learned Counsel for the plaintiff/opposite party relying on this
exparte decree submitted that the revisional application which arose
out of an interlocutory order had become infructuous as it is well
settled that if a decree is passed, the interlocutory orders passed in
the pending suit merge with the decree. Mr. Roy, appearing on behalf of
tine wife/petitioner could not dispute the fact that the suit was
decreed ex-parte on 31st March, 1995. Mr. Roy also could not bring to
my notice any fact of filing an application for setting aside the
aforesaid ex-parte decree. Mr. Roy has, however, contended that even if
the suit is decreed, it is open to the revisional Court to consider the
propriety of the order impugned in this revisional application and to
pass necessary orders on the same. Mr. Roy also agreed mat in the event
it is held that in view of the decree being passed against the
petitioner, the revisional application becomes infructuous, then the
question of going into the merits of the impugned order in which the
Trial Court had held that in the facts and circumstances of this case
the petitioner was not entitled to any increase of monthly maintenance
cannot arise at all. In view of this fact it is, therefore, necessary
to deal with the question whether in spite of the ex-parte decree
having been passed in favour of the plaintiff/opposite party, the
petitioner is still entitled to agitate the question of increase in the
monthly maintenance in this revisional application which has arisen out
of an order passed by the Trial Court while the matrimonial suit
between the parties was pending in the Trial Court. Let me, therefore,
deal with this question now. Mr. Roy, appearing on behalf of the
wife/petitioner in support of his contention that even if a decee is
passed in a matrimonial suit, a party in the said suit is still
entitled to get orders in respect of maintenance from Court where such
suit was pending relied on various decisions of different High Courts
which are , E.K. Raghavan v. K.K. Saroja;
, Radhakumari v. K.M.K. Nair; ,
Mandanlal v. Meena; , Bhansar Lal v. Kamala Devi; AIR
1981 Punjab and Haryana 306, Sudersan Kumar v. Deepak,
, Sohan Lal v. Smt. Kamlesh.
5. From the afroesaid, therefore, it is evident that that only question
to be decided now is whether the Revisional Court still retains its
jurisdiction to increase the rate of maintenance and expenses of
proceedings under the Hindu Marriage Act (hereinafter referred to as
‘the Act’) after the suit is disposed of. In order to decide this
question let me look into the provisions of Section 24 of the Hindu
Marriage Act first. It 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 petitioner’s own income and
the income of the respondent, it may seem to the Court to be
reasonable.”
6. From a plain reading of the aforesaid provision in Section 24 of the
Hindu Marriage Act, it appears to me that the Court on the application
of the wife or husband may order the respondent to pay to the
petitioner the expenses of the proceeding and monthly maintenance
during the proceeding such sum as it may seem to the Court to be
reasonable. Section 24 of the Act starts with the caption “maintenance
pendente lite and expenses of proceedings”. From a plain reading of
Section 24 of the Act, it also appears to me that the word used in
Section 24 “maintenance pendente lite and expenses of proceedings” must
be read with the word used in the section “during the proceeding’ and
if the caption maintenance pendente lite and expenses of proceedings’
and during the proceeding’ are read together can it be said that the
petitioner shall still be entitled to the expenses of proceedings when
such proceeding was not pending before the Court ? I would have
understood if Section 24 of the Act only dealt with “maintenance
pendente lite’ and not with “maintenance pendente lite’ and “expenses
of proceedings”. The insertion of the word “expenses of the
proceedings” in the caption made under Section 24 of the Act makes it
clear that the intention of the Legislature is to retain the
jurisdiction of the Court where a matrimonial proceeding is or was
pending and not when the proceeding is over. The word ‘alimony’ has not
been defined in the Act. The origin of the word alimony’ has been
borrowed from the Latin expression ‘alimonia’ which means sustenance or
support of the wife or the husband by the other. The alimony means the
allowances which the husband or the wife by Court order pays to the
other spouse for maintenance while they are separated or after their
divorce with permanent alimony or temporarily pending a suit for
divorce (pendente lite).
7. As noted herein earlier, Section 24 of the Act starts with the words
“where in any proceeding under this Act”.
8. After reading these words carefully as incorporated in Section 24 of
the Act it is clear that the Legislature intended that the maintenance
pendente lite and expenses of proceedings can be ordered by a Court in
a pending proceeding and not in a disposed of proceeding. When there is
no pending proceeding under the Act before the Court, it is difficult
to accept that still then the Court has power to pass any order of
maintenance pendente lite and expenses of proceedings to any of the
spouses. If the proceeding filed under the Act is not alive or is over
it is difficult to conceive that in such dead proceeding the Court
still retains power to grant such relief to any of the spouses in such
dead proceeding. Therefore, from a plain reading of Section 24 of the
Act particularly considering the words used “in any proceeding under
this Act” and “during the proceeding” it cannot be said that the Court
can pass and order for payment of maintenance pendente lite and
expenses of proceeding after the parent proceeding is over. Before I
proceed further I may also refer at this juncture the provisions made
in respect of permanent alimony and maintenance which is provided in
Section 25 of the Act. By the introduction of Section 25 it is now
evident that Section 25 enables the Court to order one party to a
proceeding under the Act to pay to the other party expenses for the
latter’s maintenance and support after the passing of the decree.
Therefore, it is obvious that the word ‘permanent’ used in the
matrimonial suit is meant to distinguish maintenance referred to in
Section 25 of the Act from maintenance pendente lite under Section 24
of the Act. Apart from that Section 25 of the Act, in my view, empowers
the Court to direct the payment of permanent alimony and maintenance
only at the time of passing any decree or at the time subsequent
thereto. However, the Court is also conferred with the power to change
the amount of permanent alimony and maintenance at any time after the
Court has made an order under Sub-section(l) and, accordingly, the
power of the Court to vary, modify or even rescind any order of
permanent maintenance has been conferred upon the Court under Section
25(2) of the Act. Sub-section (3) of Section 25 of the Act also confers
power on the Court to vary, modify or rescind any order of maintenance
if the Court is satisfied that the party in whose favour an order has
been made under this section has re-married or if such party is the
wife, if she has not remained chaste or if such party is the husband,
he has had sexual intercourse with any woman outside the wedlock from
the comprehensive analysis of the different Sub-sections (3) of Section
25 it is evidence that an order under Section 25 can be made.
(1) either at the time of passing the decree.
(2) or at any time subsequent thereto and not during the pendency of
the suit.
Therefore permanent alimony and maintenance under Section 25 of the Act
cannot be passed if the substantive petition is once dismissed by the
Court or withdrawn by the petitioner.
9. Therefore, if we read Section 24 and Section 25 of the Act
conjointly it would be evident that there are different stages when the
Court can direct payment of maintenance. Section 24 empowers the Court
to direct payment of maintenance during the pendency of the proceeding
and Section 25 empowers the Court to direct payment of maintenance
either at the time of passing the decree or at any time subsequent
thereto. In my view, different and distinct stages have been intended
by the Legislature for application of the aforesaid provisions of the
Act. Let me now deal with Section 26 of the Act which deals with
custody of children.
Section 26 reads as follows :
Custody of children : 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, and may, after
the decree, upon application by petition for the purpose, make from
time to time, all such orders and provisions with respect to the
custody, maintenance and education of such children as might have
been made by such decree or interim orders in case the proceedings
for obtaining such decree were still pending, and the Court may also
from time to time revoke, suspend or vary any such order and
provision previously made.
10. From plain reading of Section 26 of the Act it is evident that this
section applies to a proceeding under the Act whether it is a petition
for a decree or for an order or any other claim and it confers on the
Court exercising jurisdiction under any provision of the Act to make
provisions in respect of (1) custody, (2) maintenance, (3) education of
children.
11. Again from a plain reading of Section 26 of the Act it appears to
me that under Section 26 of the Act, the Court can make the following
types of orders :
(1) Interim orders during the pendency of the proceedings.
(2) Provisions included in the decree when passed.
(3) Orders passed after the date of the decree.
(4) Orders revoking, suspending or varying any of the preceding
three orders and provisions.
12. Therefore, from a careful analysis of the aforesaid provisions
under Section 26 of the Act, there are certain stages of action that
may be taken by the Court under Section 26 of the Act.
The first stage is :
(1) at any time before finally passing a decree the Court can pass
interim orders relating to custody, maintenance and education of
children.
(2) in the decree the Court can make provision for the custody,
maintenance and education of children.
(3) Even after a decree is passed an application may be made to the
Court by way of petition for making orders for custody, maintenance
and education of children. Therefore, under Section 26 passing of a
decree in the main proceeding does not terminate the Court’s
jurisdiction to pass certain orders in respect of custody,
maintenance and education of children. Accordingly, in my view, the
intention of the legislature relating to Section 26 is explicit as
it provides power on the Court to pass orders even after the decree
is passed whereas.
Section 24 clearly contemplates payment of maintenance and expenses of
proceedings during the pendency of that proceeding. It means that the
maintenance pendente lite and expenses of proceedings can be ordered
during the proceedings not after that.
13. From the discussions made hereinabove it appears to me that the
Legislature has specifically conferred powers on the Court under
Sections 25 and 26 of the Act to pass orders of maintenance after the
decision is made or at the time of passing the decree but in the case
of Section 24 of the Act no such specific power has been conferred on
the Court by the Legislature intentionally.
14. Therefore, in my view, Sections 24 to s of the Act provides for
maintenance and for expenses of proceedings at different distinct
stages of the proceeding.
15. Therefore, I am unable to agree with Mr. Roy that the Court still
retains its jurisdiction to grant maintenance pendente lite and
expenses of the proceedings even after the proceeding is disposed of.
If any party is required to ask for maintenance pendente lite and
expenses of any legal proceeding he or she has to approach the Court
where the matrimonial proceeding is pending or to approach the Court
under the Hindu Maintenance and Adoption Act.
16. Accordingly, I must hold that after the decree is passed, may it be
an ex- parte decree, the Court is not conferred with any power to pass
an order directing the other party to pay maintenance pendente lite and
expenses of proceedings.
17. Before parting with this order it is my duty to deal with the
decisions cited by Mr. Roy for the petitioner. At the first instance
the decision of the Supreme Court in the case of Smt. Sarojrani v.
Sudarshan Kr. Chadda, , may be dealt with. Relying on
paragraph l9 at page l569 of the aforesaid decision Mr. Roy contended
that the Revisional Court had the jurisdiction to direct payment of
maintenance even after the parent matrimonial proceeding was disposed
of during the pendency of the revisional application In my view, the
aforesaid decision of the Supreme Court is not applicable in the
present case. In that decision the Supreme Court has observed that even
after the final decree of divorce the husband would continue to pay
maintenance to the wife until she remarries. There is no dispute about
this proposition. But it must be kept in mind that the Supreme Court in
that decision while disposing of an appeal filed against the final
disposal of the matrimonial suit directed payment of maintenance while
disposing of the said appeal. Therefore, in a pending appeal between
the parties there cannot be any dispute that the Court has ample power
to grant maintenance until any variation of the amount by proper
application on proper materials is made by the Trial Court. In this
case there is no question of pendency of any suit or appeal and,
therefore, there cannot be any dispute that after the decree in
matrimonial suit was passed the interlocutory orders including the
order challenged in this application had merged with the ex-parte
decree. In this view of the matter, I am unable to rely on the
aforesaid decision of the Supreme Court. The next decision which is to
be considered now is a decision of the Kerala High Court in the case of
Ellikkai Kunivil Raghavan v. K.K. Saroja, . It is true
that in this decision it has been observed by a learned Single Judge of
Kerala High Court that the Court should dispose of a petition under
Section 24 on merits notwithstanding the disposal of the proceeding if
circumstances do require it. In the peculiar facts and circumstances of
that case it was held that an application for ancillary reliefs must be
decided by the Court even if the main petition is dismissed by it. The
ground on which this observation had been made by the learned Judge was
that if Section 24 of the Act is made for payment of maintenance during
the matrimonial proceeding then there will be an unbuilt interdiction
in the provision prohibiting matrimonial Court from ordering interim
alimony when main petition stands dismissed. Such will only promote and
encourage dilatory disposal of the interlocutory applications
particularly applications under Section 24 of the Act. In that case the
application under Section 24 was not disposed of and an inordinate
delay was made by the Court to dispose of the same. Before such
disposal of the application under Section 24 the matrimonial proceeding
itself was disposed of. In this background it was held that the Court
has a right to dispose of the pending proceeding under Section 24 even
if the main petition is disposed of. It has also been observed in the
said decision that once an interlocutory application is entertained
validly, it has to be disposed notwithstanding the disposal of the main
proceeding. Therefore, the view expressed in that decision by the
Kerala High Court was also on the basis that since an application had
been filed and entertained by the Court it is the duty of the Court to
dispose of the pending application even if the main petition was
disposed of. Apart from that for awarding maintenance to any of the
married spouses the stages have been made by introduction of different
provisions regarding payment of maintenance. Section 24 deals with
maintenance during the proceeding. Section 25 deals with payment of
maintenance after or at the time of the decree is passed. Apart from
that it was also open to a party to approach the Court under the Hindu
Maintenance and Adoption Act for getting maintenance. Therefore, when
specific provisions have been made in different Acts and also to pay
maintenance in different stages, I do not find any reason to agree with
Kerala High Court saying that if an interlocutory application is filed
such an application shall be disposed of by the Court even after the
main petition is disposed of. In this connection 1 fully agree with the
views expressed in the case of Chitralekha v. Ranjit Rai,
, where the Delhi High Court has clearly held that if
there was no legal proceeding left to prosecute or defend at any stage
and in any Court then certainly no order under Section 24 of the Act
can be passed, I am in full agreement with the views expressed by the
Delhi High Court. Apart from that in the present case there was no
question of a pending application under Section 24 of the Act. The
application under Section 24 of the Act was disposed of before the
parent proceeding under the Act was disposed of. As noted herein
earlier the revisional application arises out of an order passed by the
Trial Court while the matrimonial proceeding was pending, refusing to
increase the amount of maintenance that was directed to be paid at the
time of disposal of the petition under Section 24 of the Act. For the
reasons aforesaid I am unable relying on to the decision of the Kerala
High Court in the case of E.K. Raghabhan v. K. Saroja,
. The next decision on which Mr. Roy relied was a
Division Bench decision of this Court in the case of Chitralekha v.
Durubajyoti, . This decision has no manner of
application to the facts and circumstances of this case. In that
decision the point for consideration was whether an application for
maintenance pendente lite and cost of litigation as well as for an
order of temporary injunction restraining the husband from marrying
during the pendency of the appeal against the decree of divorce against
the wife was maintainable or not. There cannot be any dispute that an
application under Section 24 of the Act can be filed in a pending
appeal. In that decision the Division Bench of this Court has never
considered whether in a disposed of appeal the High Court could pass an
order of maintenance or not.
18. Similarly the Division Bench decision in the case of Radhakumari v.
Dr. K.M.K. Naiyar, , is not applicable in the present
case as the said decision was made while disposing of an appeal filed
against a decree passed in the original matrimonial proceeding. Mr. Roy
appearing on behalf of the petitioner relied on this decision saying
that even after the final decree for divorce the wife was entitled to
get maintenance from her husband till she re-married. This Division
Bench decision, while coming to such a conclusion followed the decision
of the Supreme Court in the case of Sarojrani v. Sudarshan Kr. Chadda,
. As I have already discussed the aforesaid decision
of the Supreme Court and observed that the said decision of the Supreme
Court cannot be applied in this case and therefore I do not find any
reason to rely on the decision of the Kerala High Court for the same
reasons. Mr. Roy next relied on a Single Bench decision of the Punjab
and Haryana High Court , Mandanlal v.
Meena. In my view this decision is clearly distinguishable on facts. In
that decision the learned Judge of the Punjab and Haryana High Court
held that when an application for setting aside an ex-parte decree for
divorce obtained under the Act was pending on the pending application
for setting aside an ex-parte decree for divorce obtained under the
Act, Section 24 of the Act is applicable also to such a proceeding.
There is no dispute about this proposition of law and I am in full
agreement with the views expressed by the Punjab and Haryana High
Court. But in this case the fact is otherwise. As noted hereine arlier,
in this case the petitioner has challenged an order rejecting her
prayer for enhancement of maintenance already passed while the
matrimonial proceeding was pending. But the said matrimonial proceeding
came to an end when the civil revisional application was pending in
this Court. Therefore, in my view, there is no pending proceeding so
far as the present case is concerned whereas in the decision of the
Punjab and Haryana High Court admittedly proceedings under Order 9 Rule
13 were pending when such direction for payment of maintenance under
Section 24 of the Act was made. Accordingly, this decision is of no
importance so far as the present case is concerned. In the case of
Banwarilal v. Smt. Kamala, , it has been clearly held
that an application under Section 24 may not survive after the date of
matrimonial cause comes to an end but it was held in that decision that
it is the bounden duty of the Court to decide a petition under Section
24 of the Act for interim maintenance and litigation expenses as
expeditiously as possible before, the trial of the main petition begins
and at any rate definitely before the decision of the main petition. In
the aforesaid decision of the Rajasthan High Court the Court interfered
in the exercise of revisional jurisdiction with the order dismissing
the application for interim maintenance and litigation expenses and
determined the amount of interim alimony and litigation expenses while
hearing revisional petition in the background of the fact that by
deliberate or mistaken action or inaction the remedy of a litigant
cannot be taken away which was available to such litigant. From the
aforesaid decision of the Rajasthan High Court one thing is clear that
it has been clearly held in that decision that there can be no doubt
mat it is imperative that an application under Section 24 of the Act
should be decided in any event before the disposal of the main petition
under the Act. In the peculiar circumstances of that case the main
petition of divorce was disposed of on the same day before the
application under Section 24 of the Act was taken up for hearing by the
Court. In the back ground of this fact the Rajasthan High Court held
that the wife in that case had vigilantly prosecuted her application
under Section 24 and merely because of the indiscretion of the Trial
Court the application could not be disposed of, although it was held
that a petition under Section 24 of the Act could not be entertained by
the Court when the main petition for divorce had come to an end. That
apart, as noted hereinearlier, this revisional application arises out
of an order passed by the Trial Court rejecting the prayer of the
petitioner for enhancement of maintenance already ordered under Section
24 of the Act. Therefore, the question of pendency of a petition under
Section 24 of the Act at the time of the dismissal of the matrimonial
proceeding did not arise at all. Accordingly, this decision of the
Rajasthan High Court, in my view, cannot be relied upon in the present
case. Mr. Roy also in support of his aforesaid contention relied on a
decision of the Punjab and Haryana High Court reported in AIR 1981
Punjab and Haryana 306, Sudarsan Kr. v. Smt, Deepak. In the peculiar
facts of that case it was held that the husband could not be allowed to
urge that the proceedings for grant of maintenance pendente lite and
litigation expenses could not proceed after the decision of the main
case. In view of the peculiar facts involved in that decision the
Punjab and Haryana High Court had taken a view that the husband could
not be allowed to urge the question of jurisdiction of the Court to
entertain a pending petition under Section 24 of the Act while the main
petition for divorce had already come to an end. That being the
position I am unable to rely on this decision cited by Mr. Roy on
behalf of the petitioner. In the case of Sohanlal v. Smt. Kamlesh,
, on which Mr. Roy relied however, says that if the
application under Section 24 continued after the dismissal of the main
petition, the applicant was entitled to maintenance till the date of
the decision of the Court. This decision can be distinguished on two
grounds. So far as the present case is concerned, there is no pending
proceeding under Section 24 of the Act. Even assuming the application
for enhancement of the maintenance can be treated to be a further
application under Section 24 even then the Division Bench in that
decision after making an interpretation of the words ‘monthly during
the proceeding such sum’ held that the intention of the Legislature is
that it has intended to give maintenance to the indigent spouse till
the dismissal of the main proceeding and for that reason it was held
that in that decision an applicant was entitled to maintenance till the
date of the decision of the main petition and not till the decision of
the application for maintenance although Section 24 however, if
applied, would entitle the Court to direct payment of maintenance till
the application for maintenance under Section 24 of the Act is disposed
of. For the reasons aforesaid 1 am unable to rely on the aforesaid
decision relied on by Mr. Roy. Last decision relied on by Mr. Roy is
the Supreme Court decision , Dr. Kubhuseer
v. Smt. Rajkumari & Anr., I have no hesitation to say at once that this
decision of the Supreme Court has no manner of application so far as
the present case is concerned. In that decision the Supreme Court was
interpreting Section 23(2)(a) to (b) of the Hindu Adoption and
Maintenance Act, 1957 and in that context held that the maintenance
decree under the Act shall take effect from the date of institution of
the suit and the appellant in that appeal was entitled to Income Tax
deductions which would be taken into account in fixing maintenance. As
already said I do not find any reason to rely on this decision for the
purpose of reaching to a conclusion on the question referred to me.
19. For the reasons aforesaid, I am, therefore, of the view that the
revisional application has now become infructuous. This order, however,
shall not prevent the petitioner from approaching the Court if an
application under Order 9 Rule 13 of the Code of Civil Procedure is
filed, for a direction upon the husband to pay maintenance at a higher
rate in that proceeding under Order 9 Rule 13 of the Code. It will also
be open to the petitioner to approach other available remedies for the
purpose of getting higher rate of maintenance under different other
acts as well. I, however, make it clear that I have not gone into the
merits as to whether the main order rejecting the prayer of the
petitioner for enhancement of maintenance was rightly passed by the Court or not.
Accordingly, this revisional application is dismissed as it has become infructuous.
There will be no order as to costs.
