Madan Singh vs Asha Devi and Others

J.P. Singh, J.—Aggrieved by learned Additional District Judge (Matrimonial Cases) Jammu's order dated 31.10.2001, awarding an amount

of Rs. 1200/- as maintenance per month to respondent No. 1 and her two minor daughters and an amount of Rs. 4000/- by way of litigation

expenses in a pending petition u/s 13 of the Jammu and Kashmir Hindu Marriage Act, the appellant (husband) has filed this appeal.

Learned Counsel appearing for the appellant, when confronted with the provisions of the Jammu and Kashmir Hindu Marriage Act, 1980,

which do not provide remedy of appeal against an order passed u/s 30 of the Act, requested for treating the appeal as revision against the order of

learned Additional District Judge (Matrimonial Cases) Jammu. Accepting the request this appeal is treated as a revision petition. Registry shall

accordingly allot requisite registration number to this revision petition.

Mr. B.B. Kotwal, Advocate, appearing for the petitioner submits that the learned Additional District Judge (Matrimonial Cases) Jammu has

committed a jurisdictional error in awarding maintenance to the minor daughters because Section 30 of the Jammu and Kashmir Hindu Marriage

Act does not contemplate order for maintenance pendente-lite in favour of the children. He refers to Puran Chand v. Mst. Kamla Devi reported as

AIR 1980 J & K 5 to support his submission. Additionally learned Counsel submits that the maintenance awarded to the respondents is excessive.

Mr. Wazir, learned Counsel appearing for the respondents, on the other hand, submits that the Jammu and Kashmir Hindu Marriage Act does

not place any rider on the power of the Matrimonial Court to grant maintenance to minor daughters/sons who have been putting up with the spouse

who had no independent income sufficient for his/her support and for the support of the minors. Learned Counsel refers to Gulab Chand v.

Satnpati Devi reported as 1987 KLJ 38 to support his submission.

I have considered the submission of learned Counsel for the parties and the judgments relied upon by them.

It is true that Puran Chand's case (supra) relied upon by Mr. Kotwal, supports his contention that a Matrimonial Court does not possess

jurisdiction to award maintenance in favour of the minors. Gulab Chand's case, however, on the other hand, takes a contrary view to the one which

had been taken by this Court in Puran Chand's case. Before proceeding further in the matter I will like to refer to the provisions of Section 32 of

the Jammu and Kashmir Hindu Marriage Act, which reads thus:

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, whenever 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 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.

Perusal of the provisions of Section 32 indicates that the Legislature has vested powers in the Matrimonial Court to pass both interim orders as

well as orders making provision in the decree itself regarding the maintenance and education of the minor children.

Puran Chand's case does not take note of the provisions of Section 32 of the Act. Gulab Chand's case, however, takes note of Section 32 of

the Jammu and Kashmir Hindu Marriage Act as also the law laid down by various other High Courts of the country.

In view of the provisions of Section 32, vesting power in the Matrimonial Court to pass interim order for maintenance and education of minor

children, I am of the view that the later view of this Court in Gulab Chand's case is the correct exposition of law on the subject as to the entitlement

of the minors to maintenance pendente-lite in a matrimonial lis by the parties to a marriage. I, therefore, do not find merit in the submission of Mr.

Kotwal that the Matrimonial Court does not possess jurisdiction to award maintenance to minor children during the pendency of matrimonial

dispute between the litigating spouses.

After going through the order of the trial Court and keeping in view the steep rise in prices, I do not find the maintenance awarded to the

minors and to respondent No. 1, in any way, excessive.

For all what has been said above, I do not find any infirmity in the impugned order This revision petition therefore fails as misconceived. It is

accordingly, dismissed.