A.R. Munuswamy Rajoo vs Hamsa Rani

Maharajan, J.—The appellant Munuswami Rajoo is the lawfully wedded husband of Hansa Rani, the respondent. The marriage between the

two took place on 6-6-1963. A son was born out of the wedlock on 22-12-1964. The case of the respondent was that the appellant was having

illicit intimacy with one Sundarammal and that consequently he treated her (the respondent) cruelly and drove her and her son away from his house

on 16-10-1966. The appellant filed a petition, O. P. 206 of 1966, against the respondent, for dissolution of the marriage on the ground of

desertion and adultery. This petition was dismissed because the appellant failed to pay the litigation expenses and interim maintenance ordered by

the court. Unfortunately, the appellant allowed this order to become final. Meanwhile, the respondent-wife filed O. P. 235 of 1968 against the

appellant-husband for restitution of conjugal rights. The appellant filed a counter vehemently contesting the petition on the ground that the

respondent had deserted him and was living in adultery. These objections were overruled by the trial court and a decree for restitution of conjugal

rights was granted on 16-12-1970. No appeal was filed against this decree either, with the result, it has also become final and binding upon the

husband. Subsequent to the decree in O. P. 235 of 1968, the respondent filed I. A. 3800 of 1971, u/s 25 of the Hindu Marriage Act, praying for a

direction to the appellant to pay her Rs. 150 per month for her alimony as well as for The maintenance of her child, who is now about 7 years old.

Notice of this application was served upon the appellant, who filed a counter through counsel raising several objections both to the maintainability

of the application and to the quantum of the allowance claimed. The trial court, on a consideration of the contentions passed an order directing the

appellant to pay Rs. 75 per month as alimony to the respondent and Rs. 25 per month as maintenance for the child till it attained majority. Against

this order, the appellant preferred an appeal in C. M. A. 115 of 1971, on the file of the Principal Judge, City Civil Court, Madras, who, after a

thorough discussion, confirmed the order of the trial court and dismissed the appeal with costs. It is as against this dismissal that the present appeal

has been filed.

I shall first deal with the objection relating to the quantum of the amount fixed Admittedly, the appellant is an employee of the Food Corporation

of India drawing a monthly salary of about Rs. 501 inclusive of all allowances. His case is that he is very sickly and that he has to support

Sundarammal, his father''s concubine, who has been bringing him up from his childhood. It is unnecessary to consider whether Sundarammal is the

concubine of the appellant as alleged by the respondent or the concubine of his father. Assuming that it is his duty to support that woman, his duty

to support his lawfully wedded wife and his own legitimate son is even more imperative. The amount of Rs. 100 awarded for the maintenance of

his wife and child constituted but l/5th of the gross monthly income that he is getting. It is true that the respondent owns 35 cents of land. There is

no definite evidence as to the income it would fetch. Having regard to the extent of the land and its quality, I do not think that it would fetch any

considerable income. Both the courts below have, with reference to the relevant legal principles, quantified the maintenance amount at Rs. 75 per

month for the respondent and Rs. 25 per month for the child. I see little reason to interfere with the quantum concurrently fixed by both the courts

below.

It is next contended that an interlocutory application filed for alimony and maintenance after the disposal of O. P. 235 of 1968 is not

maintainable. I am unable to agree.

Section 25 of the Hindu Marriage Act, 1955, runs as follows--

(1) Any court exercising jurisdiction under this Act may, at the time of passing any decree or at any time subsequent thereto, on application made

to it for the purpose by either the wife or the husband, as the case may be, order that the respondent shall, while the applicant remains unmarried,

pay to the applicant for her or his maintenance and support such gross sum or such monthly or periodical sum for a term not exceeding the life of

the applicant as, having regard to the respondent''s own income and other property, if any, the income and other property of the applicant and the

conduct of the parties, it may seem to the court to be just.........

(2) If the court is satisfied that there is a change in the circumstances of either party at any time after it has made an order under Sub-section (1), it

may, at the instance of either party, vary, modify or rescind any such order in such manner as the court may deem just.

(3) If the court is satisfied that the party in whose favour an order has been made under this section has remarried or, if such party is the wife, that

she has not remained chaste, or, if such party is the husband, that he has had sexual intercourse with any woman outside wedlock, it shall rescind

the order.

It will be found from Clause (1) of Section 25 that the application for the maintenance of the wife may be made either at the time the court

passes the decree or at any time subsequent thereto. It is therefore, wrong to contend that the application made by the wife for alimony subsequent

to the disposal of the main O. P. is not maintainable. As regards the maintenance of the child, it is true that Section 25 makes no reference thereto.

But then Section 26 of the Act provides--

In any proceeding under this Act, the court may, from time to time, pass such interim orders and make such provision 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 orders and provisions

previously made.

It is clear from this section that the jurisdiction to pass orders with respect to the custody, maintenance and education of minor children continues

even after the main proceeding, initiated under the Act, has come to an end. The expressions that ""the court 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 etc."" and ""that the court may also from time to time revoke, suspend or vary any such orders"" would show that the decree in the main

proceeding does not terminate the power of the court to pass suitable orders relating to the custody, maintenance and education of the minor

children. These orders are essentially in the nature of interim orders and are liable to be modified, revoked or suspended if there be a change in the

relevant circumstances of the parties.

The contention that the court would have no power to make a post decretal order has, therefore, been rightly overruled by the courts below. It

is true that in the application filed by the respondent-wife, Section 26 of the Act has not been quoted. But then, that is only a formal flaw and it

cannot affect the substance of her prayer, which must be deemed to be one for a relief both u/s 25 and Section 26 of the Act.

One other contention raised by the appellant is that under Rule 1 of the rules framed by the Madras High Court under the Hindu Marriage Act,

a petition u/s 26 of the Act shall be initiated by an original petition and not by an interlocutory application like the one filed by the respondent in the

trial court. Rule 1 says that the following proceedings under the Act shall be initiated by original petitions--

(i) u/s 9 for restitution of conjugal rights;

(ii) Under Sub-section (1) of Section 10 for judicial separation,

(iii) Under Sub-section (2) of Section 10 for rescinding a decree for judicial separation;

(iv) u/s 11 for declaring a marriage null and void;

(v) u/s 12 for annulment of a marriage by a decree of nullity

(vi) u/s 13 for divorce;

(vii) u/s 26 to make orders and provisions with respect in the custody maintenance and education of children. It is true that as per this rule

proceedings u/s 26 of the Act are to be initiated by means of an original petition. But then Rule 2 or the same rules says that ""every other

proceedings subsequent to the petition shall be an interlocutory application.

In this case, the petition for restitution of conjugal rights u/s 9 was initiated by an original petition in conformity with Rule 1. As Rule 2 says that

every other proceeding subsequent to the petition shall be by an interlocutory application, it may be consumed to mean that once the main

proceeding has been initiated by an original petition, any other proceedings like an application for maintenance subsequent to the petition can be by

an interlocutory application. At any rate, there is some ambiguity as to whether the party to a proceeding for restitution of conjugal rights which has

been initiated by an original petition, should necessarily file another original petition before invoking Section 26 of the Act. Assuming that an original

petition should have been filed by the respondent, I shall examine if her failure to do so should vitiate the proceedings. Be it noted that the appellant

did not raise any objection to the maintainability of the interlocutory application on the ground now alleged. I have gone through the counter and I

find that this objection was not raised at all there. Neither in the grounds of appeal in the C. M. A. nor in the grounds of appeal in this C. M. S. A.

has this objection to the form of the petition been raised. I fail to see how this irregularity which, in my view, is immaterial, has in any manner

prejudiced the appellant substantially. Notice of the interlocutory application was served upon him. He was given an opportunity to file a counter

and it was open to him to lead evidence and substantiate his objections. I do not think that the failure of the respondent to file a verified original

petition instead of an interlocutory application, supported by an affidavit, could in any manner prejudice the appellant.

Section 99, Civil P. C. prescribes that ''no decree shall be reversed or substantially varied, not shall any case be remanded, in appeal on

account of any misjoinder of parties, or causes of action or any error, defect or irregularity in any proceedings in the suit, not affecting the merits of

the case or the jurisdiction of the court.

The error committed by the respondent, if at all, is only a procedural error, not affecting the merits of the case or the jurisdiction of the court. I

am, therefore, not prepared to countenance this hyper-technical argument, which has been rightly rejected by the first appellate court.

The next argument of learned counsel for the appellant is no less hyper technical. According to him, Section 25 empowers the court to award

maintenance only to a spouse who ''remains unmarried'' and not to a person like the respondent who still ''remains married"" to the appellant. The

language of the section is clumsy, though the clear intendment of the action is that any court exercising jurisdiction under the Hindu Marriage Act

shall have the power to award maintenance in any proceeding, be it one for judicial separation or for restitution of conjugal rights or for dissolution

of marriage by divorce or for annulment of marriage by a decree of nullity. This view is fortified both by the heading of the section and the language

of the principal clause in the section. The heading in Section 25 runs as follows: ''Permanent alimony and maintenance''. The heading suggests that it

applies to all cases coming under the Hindu Marriage Act and not necessarily and exclusively to cases where the marital tie has been dissolved by

an order of court.

In fact, the main clause in the section -- ''any court exercising jurisdiction under this Act may, at the time of passing any decree or at any time

subsequent thereto, .........shall.........pay to the applicant for her or his maintenance"" etc. - indicates the Legislative intent to confer upon any court

exercising jurisdiction under the Hindu Marriage Act, the power to award maintenance in any proceeding under the Act. But unfortunately, later

on, in a subordinate clause, the Legislature uses the words ""while the applicant remains unmarried"". This expression is not intended to cut down or

curtail the scope of Section 25. Nor can it be construed as applying only to a case of a dissolution of marriage or an annulment of marriage. In the

last two cases, no doubt, the order should direct the respondent to pay alimony only so long as the applicant remains unmarried. Put in the other

types of cases, when even after the decree, the marital tie continues to bind both parties, it is undoubtedly within the power of the court, as in fact it

is its duty, to award maintenance to the spouse entitled thereto. It is, therefore, wrong to whittle down the scope of Section 25 by invoking the

clumsy phrase ''while the applicant remains unmarried'', a phrase, which has been inadvertently used by an unimaginative draftsman. The phrase

''while the applicant remains unmarried'' was evidently intended to do duty for the expression ''while the applicant remains without incurring any

legal disability, justifying the rescission of the allowance awarded under the decree''. It is the duty of the court to put a construction upon the

section, which does not attribute absurdity to the legislature and which would advance the remedy and suppress the mischief. A Division Bench of

the Calcutta High Court arrived at the same conclusion, but by adopting a somewhat different route.

In the decision in Minarani Majumdar Vs. Dasarath Majumdar, , a similar argument was advanced. On behalf of the husband, it was urged that

since the payment of maintenance u/s 25 of the Hindu Marriage Act, must be limited to the period ''while the applicant remains unmarried'', the

applicant under the section must satisfy the condition that she or he was ''unmarried'', and as the petitioner had not obtained a decree of divorce or

nullity, she was not unmarried, being stilt the married wife of the opposite party, and consequently her application u/s 25 was not maintainable. This

argument was repelled by the learned Judges of the Calcutta High Court in the following words--

An order for separate maintenance u/s 25 may be passed in favour of a married woman living apart from her husband, e.g. on the passing of a

decree for judicial separation or on the passing of a decree for restitution of conjugal rights in the event of the decree not being complied with (this

is exactly the case here). The expression ''any decree'' in Section 25 is broad enough to cover any decree of divorce or nullity or of judicial

separation or for restitution of conjugal rights. The heading and the body of the section refer to ''maintenance'', ''permanent alimony'' and ''payment

of periodical sums'' which under the English practice are respectively the names of allowances granted after the passing of a decree of divorce or

nullity, a decree of judicial separation and a decree for restitution of conjugal rights ......... The scheme of Sections 24, 25 and 26 of the Hindu

Marriage Act, 1955, appears to be that the court is vested with the power of passing orders, for maintenance of a spouse and for the custody,

maintenance and education of minor children of the marriage during the pendency of any proceeding as also on the passing of any decree under

Sections 9 to 14 of the Act. In a proper case the Court has, therefore, the power u/s 25 to pass an order for maintenance in favour of the applicant

who is a married woman. The condition that the maintenance is to be paid ''while the applicant remains unmarried'' is attached to every order for

maintenance passed u/s 25. In the context of Section 25(1) the condition means ''while the applicant is not remarried''. This condition recalls to our

mind the clause ''dum sola at casta vizerit'' which means ''while she remains chaste and unmarried''. Under the English practice, formerly, it was

usual to attach those conditions to an order for maintenance of the wife, after a decree for divorce or nullity. See Fisher v. Fisher, (1861) 2 SW T

410, but now the insertion of either condition has become the exception rather than the rule. Halsbury''s Laws of England, Articles 983, 984 and

Rayden on Divorce, 8th Edn pages 741-743. The rigid policy of Section 25 of the Hindu Marriage Act, 1955, however, is that a party in whose

favour an order for maintenance is passed cannot claim any maintenance under the order if subsequently the party has remarried or has become

guilty of sexual immorality; the court has no discretion in the matter, upon the party''s remarriage the maintenance ceases and the court must rescind

the order. The court is also bound to rescind the order on the party becoming guilty of sexual immorality as mentioned in the section. The word

''unmarried'' has several meanings. An interesting discussion of its meaning will be found in the case of Nutbehari Sarkar Vs. Saroda Prosad

Chowdhury and Another, . The popular meaning of the word is ''never having been married, its dictionary meaning is ''not married''. Now the word

''unmarried'' in Section 25(I) cannot mean ''never having been married"" because the applicant must have been a husband or a wife and therefore

must have been married; nor can it mean ''not married''; for an order u/s 25 may be passed in favour of a married woman on the passing of a

decree of judicial separation or for restitution of conjugal rights. In the context of Section 25(1) the word means ''not remarried'', for this reason

Section 25(3) provides inter alia for rescission of the order if she has remarried. The reason for attaching the condition ""while the applicant remains

unmarried"" to an order for maintenance passed in favour of a married woman after a decree for judicial separation or for restitution of conjugal

rights may be that the order will remain effective though she subsequently obtains a decree of divorce or nullity and becomes free to marry again.

The petitioner not having remarried was for purposes of Section 25 ""unmarried'' and her application cannot be dismissed on the ground that she

was not unmarried''''.

The above observations of the Calcutta High Court proceed on the assumption (with which I agree) that the clause in question does not say what it

really means. I am not sure if the recommendation suggested by their Lordships would effectively solve all the problems. In the total context of the

section, the words ""while the applicant remains unmarried"" may best be construed, in my view, to mean ""so long as the applicant continues to

remain entitled, in the eye of law to maintenance"". The inelegant and inadequately constructed subordinate clause in the section shut out of its

imagination and contemplation two out of the four contingencies indubitably contemplated by the principal clause in the section and there is little

reason why the amplitude of the whole section should be curtailed by bating upon an unintended error that has crept into the subordinate clause in

the section

As for the custody of the child, I may observe that the child has been in maternal custody ever since its birth, and the father, namely, the

appellant has never issued any notice evincing ant anxiety to get custody of the child calling upon the respondent to hand over custody of the child.

It is indeed amazing that neither in the proceedings which he initiated for dissolution of the marriage on the ground of adultery not in the counter that

he filed in his wife''s application for restitution of conjugal rights, did he show any anxiety to take ever the custody of the child. Only in his counter

to I. A. 3800 of 1971, in which his wife prayed for maintenance, did he say in a casual and halfhearted manner that he was prepared to keep

custody of the child. Having regard to the tender age of the child and having regard to the past conduct of the parties in relation to the child, the

order passed by the courts below directing the father to pay maintenance at the rate of Rs. 25 so long as the child is in the custody of the mother is

justified. It is open to the appellant, if he is so advised, and if the circumstances change, to move the court for modification, alteration or rescission

of the order relating to child custody and the quantum of maintenance.

In the result, this appeal fails and will stand dismissed with costs. Leave refused