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Bhanwar Lal vs Smt. Kamla Devi(S.24)

Rajasthan High Court
Bhanwar Lal vs Smt. Kamla Devi on 21/1/1983

JUDGMENT

Dwarka Prasad, J.

1. This appeal has been filed against an order passed by the learned
  District Judge, Pali on an application under Section 24 of the Hindu
  Marriage Act, 1955 (hereinafter referred to as ‘the Act’).

2. It is not, disputed by the learned counsel for the appellant that
  under the amended provisions of Section 28 of the Act, no appeal lies
  against an order passed on an application under Section 24 of the Act.
  He, however, prays that the appeal may be treated as a revision
  petition. Learned counsel for the respondent has no objection to the
  appeal being treated as a revision petition, but he also urges that he
  has filed cross-objection, which may also be treated as a separate
  revision petition, inasmuch as the respondent has paid full court fees
  payable on a revision petition and has also filed a copy of the order
  passed by the learned District Judge, pali, along with the
  cross-objections and further the said cross-objections were filed
  within the time prescribed under the law for filing a revision petition
  in this Court. I, therefore, direct that the appeal filed by the
  appellant and the cross-objections filed by the respondents may be
  treated as separate revision petitions and may be separately numbered.
  Both the revision petitions were heard together as they are directed
  against the very same order passed by the District Judge, Pali.

3. The principal question, which has been argued by learned counsel for
  Bhanwarlal, who will hereinafter be referred to as “the husband”, is
  that the trial court had no jurisdiction to pass an order regarding
  payment Of arrears of interim maintenance after the petition for
  divorce filed by the husband is unconditionally withdrawn by him. The
  facts, which are relevant to the present dispute, are that the husband
  filed a petition on Dec. 21, 1979 under Section 13 of the Act seeking a
  decree for divorce in the Court of District Judge, Pali. During the
  pendency of the proceedings, Smt. Kamla Devi, who will now be referred
  to as “the wife”, filed an application on April 25, 1980 under Section
  24 of the Act for grant of interim maintenance. The learned District
  Judge passed an order on May 25, 1981 granting Rs. 400/- per month as
  interim maintenance to the wife from the date of the application. The
  husband filed a revision petition in this Court, which was allowed by a
  learned single Judge by his order dated July 27, 1981 and the matter
  was remanded t0 the learned District Judge with the direction that he
  should permit the cross-examination of the deponents, who had filed
  affidavits in support of the application under Section 24 of the Act
  and similar opportunity of cross-examination should also be afforded to
  the other party. The parties were directed by this Court to appear
  before the learned District Judge, Pali on August 10, 1981 for further
  proceedings. On that day, when the parties appeared, the husband filed
  an application seeking permission to withdraw the petition filed by him
  under Section 13 of the Act for a decree for divorce. The husband also
  filed another application on that date stating that no interim
  maintenance could be awarded to the wife since he was withdrawing the
  main petition for divorce. A copy of the aforesaid applications was
  supplied to the learned counsel for the wife on August 31, 1981.
  Thereafter the husband and his counsel withdrew themselves from the
  proceedings and failed to appear before the learned District Judge on
  the subsequent date fixed in that court. On Oct. 1, 1982, the learned
  District Judge, Pali heard learned counsel for the wife in respect of
  the application for withdrawal filed by the husband and also in respect
  of the application for grant of interim maintenance under Section 24 of
  the Act and passed two separate orders. By one of these orders he
  dismissed the petition for divorce under Section 13 of the Act, as
  withdrawn. By another order passed on the same day, the learned
  District Judge awarded Rs. 400/- as interim maintenance to the wife
  from December 21, 1979 (o Aug. 3l, 1981 i.e. from the date when the
  divorce petition was filed up to the date when the notice of the
  application for withdrawal was given to the wife. Now, both parties
  have filed revision petitions against the order passed by the learned
  District Judge directing payment of interim maintenance to the wife at
  the rate of Rs. 400/- per month,

4. The contention of the learned counsel for the husband is that as the
  order allowing the withdrawal of the main petition under Section 13 of
  the Act was passed earlier by the trial court, the trial court became
  functus officio and it could not have thereafter proceeded to pass
  another order under Section 24 of the Act.

5. Learned counsel drew my attention to the provisions of Section 24 of
  the Act which runs as under:–

” 24. Maintenance pendente lite and expenses of proceedings.– Where
  in any proceedings 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.”

The submission is that the section begins with the expression “in any
  proceeding” and further goes on to say that interim maintenance was to
  be awarded for the period “during the proceeding” and thus the order
  for interim maintenance passed by the trial court could have been
  passed only during the period when the proceedings under the Act
  remained, pending before that court. Learned counsel for the husband
  placed reliance on the decision of the Punjab and Haryana High Court in
  Nirmala Devi v. Ram Dass, AIR 1973 Puni & Har 48. and of the Delhi High
  Court in Smt. Chitralekha v. Ranjit Rai AIR 1977 Delhi 176, and also of
  the Delhi High Court in Rita Mago v. V.P. Mago (1981) 1 DMC 1 in
  support of his aforesaid con-ten Hon.

6. Learned counsel for the wife however, contended that what was
  necessary under Section 24 of the Act was that an application for
  awarding interim maintenance should have been made during the pendency
  of the proceedings under the Act, but the subsequent determination of
  the proceedings under the Act cannot debar the court from passing an
  order, even later, on the pending application and reliance was placed
  on the decision of the Punjab and Haryana High Court in Amrik Singh v.
  Smt. Narinder Kaur, AIR 1979 Puni & Har 21l in support of the aforesaid
  contention.

7. In Nirmala Devi’s case AIR 1973 Puni & Har 48 the husband filed a
  petition for restitution of conjugal rights under Section 9 of the Act.
  After notices were served on the wife, she filed an application for
  interim maintenance and expenses of litigation on January 14, 1970. On
  the next date of hearing i.e. Feb. 19, 1970 the husband was absent and
  his petition under Section 9 of the Act was dismissed with costs in
  default of his appearance. The court took notice of the fact that the
  interim maintenance could have been granted for a very short period of
  a little over a month and further that the main proceedings having come
  to an end, the wife could pursue her normal remedies under the law for
  determination of her maintenance allowance on a more permanent basis.
  The learned Judge also observed that costs had already been awarded by
  the court while dismissing the husband’s petition. The learned Judge of
  the Punjab and Haryana High Court refused to pass an order for interim
  maintenance and observed that the necessity for passing any interim
  orders would come to an end with the termination of the main
  proceedings and there would be no question of the wife trying to defend
  any proceedings after the husband had withdrawn from the contest and
  therefore there was no occasion for making an interim provision for the
  defence of a case, which has already been concluded. Another reason
  which was advanced by the learned Judge for refusing to pass an order
  regarding interim maintenance was that the main sanction behind an
  order for interim maintenance and expenses of litigation was that in
  case of non-compliance, the defaulting party can be debarred from
  prosecuting or defending the proceedings further. When the proceedings
  in the main petition came to an end, the means for the enforcement of
  an order granting provisional maintenance would be lost and a court
  should avoid passing such orders which could not be effectively
  enforced.

8. In Smt. Chitra Lekha’s case (AIR 1977 Delhi 176) the husband filed a
  petition for judicial separation under Section 10 of the Act. The wife
  filed an application for grant of interim maintenance and litigation
  expenses under Section 24 of the Act, which was contested by the
  husband. But thereafter the husband absented himself and the main
  petition for judicial separation was dismissed with costs. After some
  time, the wife moved another application before the trial court to the
  effect that her earlier application for interim alimony should be
  allowed and interim maintenance and litigation expenses should be
  awarded to her. The learned Judge of the Delhi High Court observed as
  under in Chitra Lekha’s case (at p. 177):–

“A bare perusal of the statutory provisions shows that it is a
  condition precedent that there must be proceedings pending under the
  Act and it should appear to the court that the applicant has no
  independent income sufficient for support and necessary expenses of
  the proceedings, then it may pass an order for payment of expenses
  of the proceedings and monthly during the proceedings such amount as
  it may seem to the court to be reasonable. The object behind the
  provision of law is to provide financial assistance to the indigent
  spouse to maintain herself (or himself, as the case may be) during
  the pendency of the proceedings and also to have sufficient funds to
  defend to carry on the litigation, so that the spouse does not
  unduly suffer in the conduct of the case for want of funds ……
  …… …… …… The purpose of Section 24 was to enable the
  court to see that the indigent spouse was put in a financial
  condition in which the party concerned might produce proper material
  and evidence in the case and that a party was not handicapped in or
  prevented from bringing all the relevant facts before the court for
  decision of the case because of his or her poverty. It is,
  therefore, clear that orders on Section 24 application can be passed
  if the applicant has to prosecute or defend some proceeding under
  the Act. Its object is not to. provide, maintenance or damages to
  the party outside the scope of the proceedings. For such purpose,
  provisions of law are to be found elsewhere, and separate remedy is
  to be pursued. In the instant case, there was nothing left for the
  appellant to defend, as the main petition had terminated and so the
  grant of the application of the appellant at this stage would take
  us outside the purview of the object of the statutory provision.”

READ  Maintenance reduced

However, the learned Judge himself proceeded to observe further as
  under:–

“This is not to say that the applications for interim alimony should
  be allowed to lapse. In fact, orders on such applications should be
  passed as expeditiously as possible and the party should not be
  encouraged to continue with the proceedings by deferring orders or
  implementation of orders under Section 24. This should, however, be
  done before the proceedings are concluded. But, if there is 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.”

9. In Rita Mago’s case (1981-1 DMC 1) another learned Judge of the
  Delhi High Court took the same view as was taken by that court in Smt.
  Chitra Lekha’s case (AIR 1977 Delhi 176). The learned Judge expressed
  the view that the court can pass an order under Section 24 of the Act
  directing payment of interim maintenance, only during the proceedings,
  and there was no jurisdiction to make an order under Section 24 after a
  decree is passed in the main petition. At the later stage, such an
  order can be passed only under Section 25 of the Act. In that case the
  learned Judge also observed that it was brought to his notice that an
  application made by the wife under Section 25 was pending. In Rita
  Mago’s case, the wife commenced proceedings for divorce. The husband
  appeared at the initial stage, but later on the case proceeded ex parte
  against him and a decree for divorce was passed. At that stage no
  reference was made to the application for interim maintenance and
  litigation expenses. The learned Judge also took notice of the fact
  that throughout the proceedings at no point of time, notice of the
  application under Section 24 of the Act was ordered to be issued to the
  husband and even at the final stage when the judgment was delivered by
  the court dissolving the marriage between the parties, no objection was
  taken on behalf of the wife about the failure of the court to dispose
  of the application for interim maintenance. In view of these facts, the
  learned Judge observed as under:–

“But, here the application for interim maintenance was never brought
  to a hearing, and the question of making an order did not arise. As
  I have said, the application must be deemed to have been abandoned
  by the conduct of the wife and her advisers. The position is thus
  the same as if no application had ever been made. To make an order
  for interim maintenance, now. in revision, would be as if to make an
  order at first instance after the main proceeding for divorce had
  terminated. That would be directly contrary to Section 24 of (he
  Hindu Marriage Act”.

In that case, the learned Judge retused to accept the contention
  advanced on behalf of the wife that the final judgment in the divorce
  petition may be considered as an implied order rejecting the
  application for interim maintenance and observed that when the notice
  of the application for interim maintenance was never issued to the
  husband, no adjudication on the application can be attributed to the
  Judge passing the final order.

10. In N. Subramanyam v. Mrs. M.G. Saraswati AIR 1964 Mys 38 a Bench of
  the Mysore High Court observed as under (at p. 39) :–

“It is no doubt true that, in the case on hand, the duration of the
  proceedings was short, mainly on account of the fact that there was
  no contest on the question of divorce. But that in itself was no
  reason for deferring decision on the respondent’s application to the
  final stage. Nor can it be said that since the proceedings had
  themselves terminated, there was no occasion t0 grant interim
  maintenance or expense. The right to those items, if established,
  cannot be defeated by allowing time to elapse and the pendency of
  the proceedings to end. The party concerned may have provided
  herself with the requisite means in some other way and she is
  entitled to reimburse herself or to repay others if she has raised
  the means from others.”

11. In that case, an application for interim alimony and expenses of
  the proceedings was made during the pendency of the petition for
  divorce, but the trial court while granting a decree of divorce,
  refused to grant interim alimony to the wife and simply observed that
  no direction was made regarding interim alimony or costs of defending
  the application. It was held that the court could not simply reject the
  application for grant of interim alimony and litigation expenses
  without assigning any reason for doing so. Although it is a matter of
  discretion, yet there must be some indication that the discretion was
  being exercised judicially and when it was found that the wife had no
  independent source of income the court should have awarded her both
  interim maintenance and some suitable amount for expenses, it was also
  observed that, the trial court should promptly pass an order on the
  application for award of interim alimony and litigation expenses,
  otherwise ;he very aspect of making such a provision would be defeated.

12. In Amrik Singh’s case (AIR 1979 Punj and Har 211) the earlier
  decision Of that court in Nirmala Devi’s case (AIR 1973 Punj and Har
  48) was distinguished on the ground that the period for which interim
  maintenance could have been granted was very short and that had weighed
  with Suri, J. In Amrik Singh’s case the learned Judge observed as under
  (at p. 212):–

“For no default of the wife, her petition under Section 24 of the
  Act remained pending for 6/7 months. If the view is that the
  provisions of Section 24 of the Act were intended by the legislature
  to enable the indigent spouse to secure wherewithal to defend the
  proceedings against oneself and to maintain oneself during the
  pendency of the proceedings, then it is incumbent upon the Courts to
  take an immediate decision upon the petition under Section 24 of the
  Act, otherwise the delay would defeat the very purpose. Otherwise in
  a case where the Court delays the decision on the application till
  the fag-end of the trial of the main case, right to maintenance and
  litigation expenses would be denied to the applicant on the specious
  argument that she had been able to prosecute the litigation for all
  that long period and had survived and so she was not entitled to
  favourable order on her application, for the litigation expenses and
  the interim maintenance under Section 24 of the Act was intended
  merely to meet the contingency of an indigent spouse not being able
  to prosecute the case and survive during the pendency of the
  proceedings, which contingency would no longer exist when the
  proceedings had reached the stage of conclusion though not finally
  concluded, I do not think that the interim maintenance and
  litigation expenses could be denied to the applicant on such a
  ground when the application had been filed during the pendency of
  proceedings and it is the court which delayed its decision thereon
  If the relief could not be denied in the above situation then surely
  the applicant would not be denied the same relief even after the
  conclusion of the main petition.”

13. In Mythili Raman v. K.T. Roman AIR 1976 Mad 260 during the pendency
  of a petition for judicial separation an application for ‘interim
  alimony and expenses of proceedings was filed in the year 1967 and the
  trial of the main petition reached the final stage in November 1968,
  yet in spite of several applications by the indigent wife no order was
  passed by the trial court on the application under Section 24 and on
  the last date of hearing in the year 1968, the counsel for the wife
  ultimately stated that he was prepared to argue the application under
  Section 24 but was not ready to argue the main petition. But the trial
  court insisted on deciding the main petition, ignoring the pendency of
  the application under Section 24. The learned counsel for the wife,
  therefore, reported no instructions in the main petition and still
  insisted that the application under Section 24 should be decided and
  the main petition may be adjourned to a subsequent date,
  Notwithstanding the fact that the learned counsel for the wife withdrew
  himself in these circumstances and the wife was also absent, the trial
  court proceeded ex parte and after examining the husband gave a decree
  for judicial separation. A learned Judge of the Madras High Court held
  in the aforesaid case that the course adopted by the trial court was
  contrary to the provisions of the Act and though there were no specific
  words in Section 24 that the application under that Section has to be
  disposed of prior to the main petition being taken up for trial yet the
  intention of the framers of the law was clear that the application
  under Section 24 ought to be disposed of in the first instance. The
  learned Judge observed in Mythili Raman’s case as under (at p. 261):–

“Therefore, it is clear that an application under Section 24 is to
  be disposed of during the pendency of the proceedings viz. the main
  petition. It is not right to say that because there are no words
  specifically saying that an application under Section 24 has to be
  heard in the first instance, before even the main petition is taken
  up for trial, the court is at liberty to tack on the application
  with the trial of the main petition itself. The object of Section 24
  is to provide necessary funds to the needy spouse to prosecute the
  proceedings as well as to maintain himself or herself during the
  pendency of the proceedings. Therefore, there is no room for the
  court not passing any orders on the application and relegating the
  same to be taken up with the main petition itself.”

14. The consequential order passed by the trial court that as the main
  petition itself has been decided, the application under Section 24 of
  the Act was dismissed, was set aside by the High Court and interim
  alimony and expenses of the proceedings in the trial court were
  awarded.

15. It appears from a bare perusal of the provisions of Section 24 of
  the Act that the provision has been made in order to provide means to
  the spouse who has no independent source of income to contest a
  matrimonial proceeding. The indigent spouse should be allowed to obtain
  the requisite maintenance and litigation expenses from the other party,
  soon after the filing of the application under Section 24 of the Act,
  in order that the indigent spouse could maintain herself during the
  pendency of the proceedings, and also incur the legitimate expenses for
  contesting the matrimonial dispute. If the proceedings under Section 24
  of the Act are allowed to linger on and are unreasonably delayed on
  account of the dilatory tactics adopted by ‘he other party or on
  account of lack of vigilance o” prompt action on the part of the trial
  court, then the very purpose of inserting the provisions of Section 24
  in the Act would be defeated. The indigent spouse might have provided
  herself with the requisite means to fight out the matrimonial cause in
  some other way, but she is entitled to reimburse herself or to repay
  the debt taken from others, if she has raised the money from others.
  Undoubtedly, the expression “where in any proceeding”, with which
  Section 24 begins leads to the conclusion that the order granting
  interim maintenance and litigation expenses should be passed during the
  pendency of the proceedings in the main petition. As a matter of fact,
  it is expected that when an application under Section 24 of the Act is
  filed during the pendency of a matrimonial cause, the court should
  proceed to decide the application as expeditiously as possible and
  should not postpone the decision on that application up to the last
  stage of deciding the main petition. The application under Section 24
  is no doubt an interlocutory application, which may not survive after
  the date the matrimonial cause conies to an end. But such petition
  moved for interim maintenance and litigation expenses should be decided
  during the pendency of the proceedings under the Act soon after it is
  filed and the right of the indigent spouse to obtain interim alimony
  and ligitation expenses from the other party could not be defeated by
  allowing lime to lapse or by postponing the decision of the application
  under Section 24 of the Act to the fag-end of the trial of the main
  case. Of course, it would be different if the application under Section
  24 of the Act is not pressed by the wife until the final conclusion of
  the matrimonial case, as was done in Rita Mago’s case (1981-1 DMC 1),
  leading to the inference that the said application must be deemed to
  have been abandoned, on account of the conduct of the wife. In Smt.
  Chitra Lekha’s case (AIR 1977 Delhi 176) the learned Judge of the Delhi
  High Court himself Observed that the application for interim alimony
  should not be allowed to lapse, but if the application is allowed to
  lapse and passing of orders on such an application under Section 24 is
  deferred until the fag-end of the proceedings in the matrimonial case,
  then the aggrieved wife cannot be left with a remedy. With utmost
  respect to the learned Judge, I may observe that if the view taken in
  Chitra Lekha’s case is accepted, then as soon as the main petition is
  withdrawn, or is allowed to be dismissed in default, the application
  for interim alimony would automatically come to an end which would lead
  to the conclusion that if the proceedings are deferred for a long time
  and the main petition thereafter abruptly comes to an end, then the
  indigent wife would be deprived of her right under Section 24 of the
  Act to obtain interim alimony and expenses of litigation for no fault
  of hers. The necessity of deciding an. application for interim
  maintenance and litigation expenses filed under Section 24 of the Act
  as early as possible after the same is filed, and ordinarily before the
  trial, of the main petition begins, at least during the pendency of the
  main petition, must be emphasised. The decision of the application
  under Section 24 of the Act for interim alimony and litigation expenses
  can in no event be postponed until the final disposal of the main
  petition and in all circumstances it must be disposed of before the
  termination of the proceedings in the main petition. Even in Chitra
  Lekha’s case referred to above, it was held that the application under
  Section 24 should be decided judicially as expeditiously as possible
  and parties should not be encouraged to continue with the proceedings
  for interim maintenance and litigation expenses by deferring orders on
  such application. Thus, it needs to be emphasised that the court
  dealing with a matrimonial case for divorce or judicial separation or
  restitution of conjugal rights or any other proceedings under the Act,
  where the respondent spouse has a right to claim interim maintenance
  and litigation expenses under Section 24, on the ground that he or she
  has no independent income sufficient for support and the necessary
  expenses for the proceedings and an application under Section 24 of the
  Act is moved during the pendency of the proceedings under the Act, then
  it is the bounden duly of the court to decide the application 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. The proceedings in
  respect of an application under Section 24 of the Act should not be
  frequently adjourned and deferred for some reason or the other or
  without any reason until the trial of the main petition comes to an
  end, as the principal object for which interim alimony has to be
  granted would itself be frustrated if the respondent spouse is not put
  into possession of the necessary funds for maintaining herself and to
  meet the expenses of the litigation soon after the application under
  Section 24 is moved. That is why Section 24 speaks of “it appears t0
  the court” instead of providing that “it is proved before the court”
  and as such Section 24 application can be and should ordinarily be
  disposed of on the basis of affidavits produced by and on behalf of the
  parties. One of the reasons given in Nirmala Devi’s case (AIR 1973 Punj
  and Har 48) as to why the order on the application under Section 24 of
  the Act cannot be passed after the decision of the main petition was
  that in case the order for payment of amount relating to interim
  maintenance and litigation expenses is not complied with then the
  aggrieved party would not be able to enforce such an order, I may with
  great respect observe that Section 28A of the Act provides the
  procedure for enforcement of decrees and orders passed by the court in
  any proceedings under the Act and by virtue of Section 28A an order
  passed under Section 24 of the Act can be enforced as a money decree.
  Of course, if the order under Section 24 is passed during the pendency
  of the main petition and the same is disobeyed, in ‘addition to the
  enforcement of the order as a money decree by virtue of the provisions
  of Section 28A, the court could stay the proceedings in the main
  petition, strike out the defence of the defaulting party or dismiss the
  main petition, as it may consider appropriate in the circumstances of
  the case. There can be no doubt that it is imperative that an
  application under Section 24 of the Ad should be decided in any event
  before the disposal of the proceedings in the main petition under the
  Act.

READ  Whether court can allow amendment of written statement destructive of earlier case at the stage of appeal?

16. However, the question which arises in this case is that if the
  trial court committed the error of disposing of the main petition
  before deciding the application under Section 24, is this court
  absolutely powerless and cannot rectify the error committed by the
  court below? In this respect I am inclined to take the view as was
  taken by Ramaswami J. In Mythili Raman’s case “(AIR 1976 Mad 260) which
  appears to be an extreme case illustrative of the situation. As
  mentioned earlier, in that case, the counsel for the wife insisted that
  Section 24 application should be disposed of before the main petition
  for judicial separation was decided while the trial court continued to
  : insist that the main petition would be heard and disposed, of first.
  Thereupon the counsel for the wife withdrew and ex parte proceedings
  were taken against her and a decree for judicial separation was passed
  and thereafter the application for interim alimony was dismissed as
  having become infructuous. Thus, in the aforesaid case the trial, court
  deliberately persisted in making the interim -alimony application
  infructuous, in spite of protests by the counsel for the wife. Would it
  be proper to interpret the provisions of Section 24 in such a manner as
  to leave the respondent at the mercy of the trial court and allow that
  court to defeat its very purpose by deferring the decision of the
  application under Section 24 until the main proceedings under the Act
  are disposed of? If such a view is taken then in a case like Mythili
  Raman’s case the court would become functus officio by its own inaction
  and no relief can be granted to the wife, who has done everything
  legitimately within her power in moving an application under Section 24
  during the pendency of the proceedings under the Act and in vigilantly
  pursuing such application. If the trial court adopts such an attitude
  which is unwarranted by law and has no legal sanction and proceeds to
  decide the main petition, deferring the disposal of the application
  under Section 24 until the last moment, in my view even then the
  indigent wife could not be allowed to be deprived of her legitimate
  right of obtaining interim alimony and expenses of litigation, merely
  at the whim of the court or on account of the indiscretion exercised by
  the Court.

17. I am not prepared to accept such an interpretation of the
  provisions of Section 24 which would deprive the litigant of her remedy
  without any fault on her part. The question in my humble view should be
  viewed in a broader perspective that it is the first and the highest
  duty of the court to take care that an act of the court should not
  prejudice the rights of any party or cause any injury to a party. The
  principle has aptly been described by the maxim “Actus curiae neminem
  gravabit” (an act of the Court shall prejudice no man). Such a
  principle is founded upon justice and good sense and affords a safe and
  certain guide for the administration of the law. The court by its
  laches or mistake cannot take away the right of a party or cause an
  injury to the party so as to leave it without interest or remedy. This
  principle was accepted by the Judicial Committee of the Privy Council
  in Jai Berham v. Kedar Nath Marwari, AIR 1922 PC 269 and it was
  observed in that case that it was inherent in the general jurisdiction
  of the Court to act rightly and, fairly according to, the circumstances
  towards all parties involved. Their Lordships of the Privy Council
  quoted with approval the following observations of Grains, L.C. In
  Rodger v. Comptoir de Escopte de Paris (1871) 3 PC 465: 17 ER 120.

“One of the first and highest duties of all Courts is to take care
  that the act of the Court does no injury to any of the suitors and
  when the expression ‘the act of the Court is used, it does not mean
  merely the act of the primary Court, or of any intermediate Court of
  Appeal, but the act of the Court as a whole from the lowest Court
  which entertains jurisdiction over the matter up to the highest
  Court which finally disposes of the case.”

18. The same principle was reiterated by their Lordships of the Supreme
  Court in Jang Singh v. Brij Lal, AIR 1966 SC 1631 wherein
  Hidayatuallah, J., as he then was observed as under (at p. 1633):–

READ  Mere registration of FIR is not enough to claim relief

“There is no higher principle for the guidance of the Court than the
  one that no act of Courts should harm a litigant and it is the
  bounden duty of Courts to see that if a person is harmed by a
  mistake of the Court he should be restored to the position he would
  have occupied but for that mistake. This is aplly summed up in the
  maxim: “Actus curiae neminem gravabit.”

19. A Division Bench of this Court in Thakar Lal v. Nattiulal, ILR
  (1964) 14 Raj 333: (AIR 1964 Raj 140) also relied upon the same
  principle and made the following observations (at p. 146):–

“The same conclusion in our opinion could perhaps be come to on the
  well-settled principle in our jurisprudence that it is one of the
  first and the highest duties of a court to take care that the act of
  the court does no injury to any of the suitors before it. See Rodger
  v. Comptoir d’ Escopte de Paris ( (1871) 173 PC 469).”

20. Thus, it is well settled that the court by its action or inaction,
  deliberate or mistaken, cannot take away the right of a party or take
  away a remedy which was otherwise available to the litigant, as that
  would amount to causing an injury to the litigant by an act of the
  court. If the court goes on deferring the disposal of the application
  under Section 24 of the Act for interim alimony and litigation
  expenses, knowingly or unwittingly, until the main proceedings under
  the Act come to an end and thereafter dismisses the application under
  Section 24 on the ground that it has become infructuous as the main
  petition has been disposed of, it would certainly cause injury to one
  of the suitors for no fault of his and such an illegal action on the
  part of the court must be heid to be without jurisdiction. The court
  has jurisdiction to decide the matters before it according to law, but
  not in violation of law or to defeat the rights of a party by its
  action or inaction. In such circumstances this Court is bound to
  interfere in the revisional jurisdiction with the order dismissing the
  application for interim maintenance and litigation expenses and
  determine the amount of interim alimony and litigation expenses while
  hearing the revision petition.

21. In the present case, as I have already mentioned above, the
  application under Section 24 of the Act was moved by the wife on Aprl
  25, 1980 during the pendency of the petition for divorce. The
  application was duly pressed by the wife and an order for interim
  maintenance was passed by the trial court on May 25, 1981, although no
  order was passed for litigation expenses and the decision of that
  question was deferred. Then the husband approached this Court in
  revision, which was allowed on July 27, 1981 and the matter was
  remanded and the parties were required to appear before the trial court
  on August 10, 1981 for further proceedings, in accordance with the
  directions of this Court in respect of the application under Section
  24. But on August 10, 1981 the husband submitted an application for
  withdrawal of the main petition instead of taking proceedings, as
  directed by this Court, for determination of the amount of interim
  alimony. It was incumbent upon the trial court at that stage to decide
  the application for interim alimony and litigation expenses, in
  accordance with the directions of this Court contained in the order
  dated July 27, 1981, before closing the proceedings in the main
  petition. It appears that the trial court heard both the matters
  together, namely, the question of withdrawal of the main petition as
  also the question of grant of interim maintenance and litigation
  expenses and the survival of the petition for interim maintenance after
  the application for withdrawal of the main petition was filed. The
  trial court should have decided the application under Section 24 first
  before proceeding to pass the final order allowing the withdrawal of
  the main petition. The emphasis of the learned counsel for the husband
  is that although both the orders fixing interim maintenance as also
  allowing withdrawal of the main petition were passed on the same day,
  yet a reading of the two orders shows ‘hat the order allowing the
  withdrawal of the divorce petition was passed earlier in point of time
  as the same finds a reference in the order fixing the amount of interim
  maintenance. Learned counsel appears to be right in his submission, but
  the trial court was definitely wrong in disposing of the main petition
  earlier to the application under Section 24 and in this revision
  petition I am not prepared to hold that the court is powerless to
  decide the question of interim maintenance notwithstanding the fact the
  main petition was disposed of earlier by the trial court on the same
  day. The wife in the present case had vigilantly prosecuted her
  application under Section 24 and merely because of the indiscretion of
  the trial court, she could not be deprived of her right to “obtain
  interim maintenance, and litigation expenses.

22. Now, coming to the question of quantum of interim maintenance, the
  trial court has accepted the version of the wife and fixed Rs. 400/-
  per month as interim alimony from December 21, 1979 to August 31, 1981.
  Learned counsel for the husband submits that the income-tax assessment
  order of the husband in respect of the year 1980-81 has been placed on
  record, which showed that the income of the husband was Rupees 9,134/-
  during the year, including his share of profits from the partnership
  business as also his income from the other business. The affidavit of
  the wife stated that the income of the husband during the year was Rs.
  30,000/- out of which Rs. 15,000/- was his share of profits from the
  partnership business, while 15,000/- was the income from the other
  business. It has also been stated on behalf of the wife that there are
  houses and shops belonging to the husband, which were fetching rental
  income but no details in respect thereof have been supplied. The
  affidavit of the wife about the income of the husband being Rupees
  30,000/- per year cannot be accepted in view of the fact that the
  husband has produced the income-tax assessment order, which shows that
  the Income-tax authorities accepted the income of the husband from the
  partnership business and from the other business as Rs. 9,134/- during
  the assessment year 1980-81. The husband filed an affidavit in the
  trial court in which he has admitted that his income was Rs. 9,000/- to
  10,000/- per year. The Income-tax assessment order relating to the
  assessment year 1980-81 has been produced, while we are concerned with
  the subsequent assessment year 1981-82. It may be considered that there
  might be slight increase in the income of the husband during the next
  following year, but it cannot be presumed in the absence of any cogent
  material that there was a steep rise in the husband’s income in the
  next following year, after the year for which income-tax assessment
  order has been produced. In the face of the affidavits of the parties
  and the income-tax assessment order produced by the husband, it appears
  that the income of the husband could be fairly considered to be about
  Rs. 12,000/-per year. We have held in similar cases that l/5th of the
  income of the husband should be considered as reasonable for fixation
  of interim maintenance. As such, in my view, the wife is entitled to
  get l/5th of the sum of Rs. 12,000/- i.e. Rs. 2,400/- per year by way
  of interim maintenance. Thus, the interim maintenance, which the wife
  is entitled to get in the present case, is determined as Rupees 200/-
  per month.

23. With regard to the period for which the interim maintenance amount
  should be awarded, some courts have taken the view that the respondent
  spouse is entitled to get interim maintenance from the date on which
  the service of the main petition is effected upon the respondent. But
  in my view the interim maintenance should be awarded to the indigent
  spouse from the date when the application under Section 24 of the Act
  is actually moved. There may be cases where the respondent may not be
  in justifiable need of interim maintenance during the earlier stages of
  the matrimonial litigation or may unduly delay the filing of an
  application under Section 24 for the interim maintenance for several
  years after the filing of the main petition and in all such cases it
  would not be proper to award a lump sum amount to the respondent
  spouse, who has neglected to file an application under Section 24 of
  the Act soon after the service is effected upon her of the notice of
  the main petition. As Section 24 application was filed on Aprl 25,
  1980, the wife is entitled to get interim maintenance from the
  aforesaid date i. e. April 25, 1980 until August 31, 1981, the date on
  which the notice of the application for withdrawal of the main petition
  for divorce was served upon her counsel. After August 31, 1981 the
  husband absented himself and did not appear, having already filed an
  application for withdrawal of the divorce petition on August 10, 1981.
  In the present case, the wife is not entitled to get interim
  maintenance in respect of the period subsequent to August 31, 1981.
  Thus, the wife is entitled to get interim maintenance in the present
  case under Section 24 from April 25, 1980 to August 31, 1981 @ Rupees
  200/- per month. It may be mentioned here that the husband has already
  paid a sum of Rs. 1,000/- towards interim maintenance to the wife, as
  mentioned in the order of this Court dt. July 27, 1981 and the said
  amount of Rs. 1,000/- shall be adjusted while calculating the amount of
  interim maintenance payable to the wife.

24. As. regards litigation expenses, the trial court had deferred the
  consideration of the question to a future date, while passing the order
  dated May 25, 1981, but since then it never determined the amount of
  litigation expenses payable by the husband to the wife in respect of
  the proceedings in the trial court. I am of the view that the wife is
  entitled to get a sum of Rs. 400/- towards litigation expenses of the
  trial court. The amount of arrears of interim maintenance as also the
  litigation expenses may be paid by the husband to the wife, after
  deducting the sum of Rs. 1,000/- which has already been paid, within a
  period of 4 months,

25. In the result, both the revision petitions are partly allowed and
  the order passed by the learned District Judge, Pali dated October 1,
  1982 fixing the amount of interim maintenance under Section 24 of the
  Act is modified and the wife is allowed interim maintenance from April
  25, 1980 to August 31, 1981 @ Rs. 200/- per month and a further sum of
  Rs. 400/- is allowed to her as litigation expenses of the trial court.
  The husband is directed to make payment of the aforesaid sums of money
  to the wife within 4 months, subject to adjustment of the amount
  already paid.

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