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divorce filed by the husband is unconditionally withdrawn by him.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.”
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.
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):–
“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.