Brij Lal vs Smt. Maya Devi

R.S. Pathak, C.J.—This is a husband''s appeal u/s 28 of the Hindu Marriage Act against an order dated November 1, 1972, of the learned District Judge u/s 24 of the Act directing payment of maintenance pendente lite and litigation expenses.

2 The wife filed a petition u/s 10 of the Hindu Marriage Act against the husband. During its pendency she applied for an order u/s 24 of the Act praying that Rs 100/- per mensem be awarded as maintenance pendente lite and Rs. 200/- towards litigation expenses. The application was resisted by the husband, who alleged that the wife had left him and was living with her parents and had developed illicit relationship with one Munshi Ram, and that he, the husband, had no property of his own and was not in a position to provide maintenance for the wife. The learned District Judge, by his order dated November 1, 1972, has ordered the husband to pay Rs. 100/- per mensem maintenance pendente lite and Rs. 150/- towards litigation expenses.

Learned Counsel for the husband urges that as the wife is leading an adulterous life she is not entitled to any relief u/s 24 of the Act. He contends that the grant of relief u/s 24 is controlled by the considerations set out in Section 23. In my opinion, the contention is without force. Section 23 of the Act provides:

Decree in proceedings.--(1) In any proceeding under this Act, whether defended or not, if the court is satisfied that-

(a) any of the grounds for granting relief exists and the Petitioner is not in any way taking advantage of his or her own wrong or disability for the purpose of such relief, and

(b) where the ground of the petition is the ground specified in Clause (f) of Sub-section (1) of Section 10, or in Clause (i) of Sub-section (1) of Section 13, the Petitioner has not in any manner been accessory to or connived at or condoned the act or acts complained of, or where the ground of the petition is cruelty the Petitioner has not in any manner condoned the cruelty, and

(c) the petition is not presented or prosecuted in collusion with the Respondent, and

(d) there has not been any unnecessary or improper delay in instituting the proceeding, and

(e) there is no other legal ground why relief should not be granted, then, and in such a case, but not otherwise, the court shall decree such relief accordingly.

...

Section 24 provides:

Maintenance pendente lite and expenses of proceedings.-- Where in any proceeding under this Act it appears to the court that either the wife or the husband, as the case may be, has no independent income sufficient for her or his support and the necessary expenses of the proceeding, it may, on the application of the wife or the husband, order the Respondent to pay to the Petitioner the expenses of the proceeding, and monthly during the proceeding such sum as, having regard to the Petitioner''s own income and the income of the Respondent, it may seem to the court to be reasonable.

It is clear from a mere perusal of Section 23(1) that the expression "in any proceeding under this Act" refers to a proceeding in which the relief claimed is a substantive relief, such as a decree for restitution of conjugal rights (Section 9), a decree for judicial separation (Section 10), or a decree for divorce (Section 13). That is plain from the content of Section 23 itself, where Clause (b) speaks of proceedings u/s 10 and Section 13, and Section 23 itself speaks of the court passing a decree. It will be noticed that a proceeding u/s 24 terminates in an order and not a decree. The Act has made clear distinction in its several provisions between an order and la decree. In my opinion, a proceeding taken u/s 24 of the Act is not covered within the expression "in any proceeding under this Act" mentioned in Section 23(1). Further, if Clause (a) of Sub-section (1) of Section 23 were to be applied in the present case, as learned Counsel for the husband suggests that it should be, it would lead to a manifest absurdity. The wrong alleged against the wife is adultery. It is urged that because of her illicit relationship with another she should be disentitled to any relief u/s 24. Now, Clause (a) speaks of the court being satisfied that "the Petitioner is not in any way taking advantage of her own wrong for the purpose of such relief", and applying those words it would mean that the Petitioner should not be taking advantage of her own adultery for the purpose of obtaining an order u/s 24 directing payment of monthly maintenance and litigation expenses. It is difficult to envisage how that can be so. Accordingly, I hold that the contention raised on behalf of the husband has no substance. A |proceeding u/s 24 is not controlled by the provisions of Section 23. To the same effect is the conclusion reached in Lallubhai Keshavram Joshi v. Nirmalaben Lalluram Joshi AIR 1972 Guj. 174.

It is next urged on behalf of the husband that the learned District Judge has not applied his mind to the financial circumstances of the husband and as given a finding which is not supported by evidence. This contention is also with out force. The wife and her witness Jai Dev have both testified to the fact that the husband is the proprietor of 40 big has of land transferred to him by his grandfather. The husband admits that land was transferred in his favour, but he has not disclosed the area of the land. There is no other reliable oral evidence in regard to the property owned by the husband. In the circumstances, it must be taken that the assertion that the land consists of about 40 big has is correct. It is not disputed that the land is agricultural in nature. Plainly, the amount awarded by the learned District Judge in favour of the wife as maintenance pendente lite and litigation expenses cannot be said to be excessive.

The appeal fails and is dismissed with costs, which I assess at Rs. 100.