Heeralal Gattulal Jain vs Smt. Ravi Jain

S.K. Dubey, J.

In this revision, the petitioner, who instituted a suit for dissolution of his marriage u/s 13 of the Hindu Marriage Act, 1955 (for short ''the Act) against the respondent, has challenged the order of interim maintenance awarded at the rate of Rs. 130/- per month to the minor son.

Ku. Nutan Saxena contended that u/s 24 of the Act, no maintenance can be granted to a child as it is the wife or the husband, as the case may be, who has no independent income sufficient for her or his support and the necessary expenses of the proceedings, may claim monthly maintenance during the proceedings, having regard to the petitioner''s own income and the income of the respondent and can also claim expenses of the proceedings. Learned counsel pressed into service on Rukmanidevi''s case 1970 LLJ 118, Akasam Chinna Babu Vs. Akasam Parbati and Another, and Puran Chand Vs. Mst. Kamla Devi, It was also submitted that the petitioner''s income is only Rs. 1,000/- per month, who is already paying monthly expenses at the rate of Rs. 300A per month to the respondent as per order dated 11-9-1987, now the petitioner cannot bear the burden of the son as he has to maintain other members of his family.

On the other hand, Shri G. D. Sharma, placing reliance on Narendra Kumar Mehta Vs. Suraj Mehta, Smt. Subasini''s case AIR 1981 Karnt. 115, Thimmappa''s case, AIR 1976 Karnt. 215 and Baboolal''s case AIR 1974 Raj. 93, contended that interim maintenance can also be granted for maintenance of a child. In any case, learned counsel submitted that u/s 26 of the Act, a Court is competent to pass interim orders and make such provisions in the decree as it may deem just and proper with respect to the custody, maintenance and education of minor children.

After hearing learned counsel, I am of opinion that this revision has no merit.

True, the application was filed u/s 24 of the Act claiming enhancement of the interim alimony already awarded to the respondent-wife and expenses were claimed for fooding, clothing and education of the child. The prayer for enhancement of interim alimony to the respondent was disallowed, but the Court, exercising the powers u/s 26 of the Act awarded monthly expenses of Rs. 60/- towards education and Rs. 75/towards fooding and clothing to the child, total Rs. 135/- per month. The Court also found that the petitioner earns Rs. 1,174/- per month and can pay the said amount.

No doubt, there is divergence of judicial opinions in respect to the maintenance for children u/s 24 of the Act. But, I need not go into the controversy as the trial Court has awarded the monthly expenses u/s 26 of the Act which is quoted in extenso :

Custody of children : -

In any proceeding under this Act, the Court may, from time to time pass such interim orders and, make such provisions in the decree as it may deem just and proper with respect to the custody, maintenance and education of minor children, consistently with their wishes, whereever possible, and may, alter the decree, upon application by petitioner 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 proceeding 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.

A bare look to Section 26 of the Act, clearly gives jurisdiction to a Court to pass any interim order from time to time 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. Certainly of course, the order should be consistent to the wishes of such children. Therefore, it would be taking a too technical view to force the wife and the children misery to exclude them from maintenance allowance in a proceeding under the Act, as maintenance cannot be awarded u/s 24 of the Act, and to direct the wife or the child to initiate another legal action for support of the child would be nothing but a multiplicity of the litigation. After all a child is the offspring of marriage and when once a spouse seeks the support for subsistence during the pendency of the litigation that spouse includes the offspring dependent on such spouse.

The contention of the petitioner that the application was filed u/s 24 of the Act, therefore, no order could have been passed on that. In view of the facts of this case, the contention does not carry much weight, as it was a joint application for maintenance. It is trite law that substance has to be seen than the form and the substance of the prayer was that the expenses for education, fooding and clothing of the minor child are to be granted. Therefore, the Court, instead of going on the form, granted the relief to the child on substance of prayer (see A.R. Munuswamy Rajoo Vs. Hamsa Rani, ). It is also settled that the Court cannot throw an application of a party merely by mentioning wrong section. While deciding an application if the case is made out in substance in the application for grant of relief, wrong mentioning of section will not come in the way of the Court, to grant the relief.

In the result, the revision petition fails and is dismissed with costs to the respondent. Counsel''s fee Rs. 100/- if already certified.