Mahendra Kumar Mishra vs Smt. Snehalata Kar

R.C. Patnaik, J.—This revision by the husband arises out of an order granting interim, maintenance to the wife and the child and the

expenses of the proceeding on a petition filed u/s 24 of the Hindu Marriage Act, 1955 (hereinafter referred to as the ''Act'').

The petitioner filed Original Suit No. 9 of 1981 u/s 13 of the Act for a decree for divorce. During the pendency of the proceeding, the opposite

party filed an application for pendente life maintenance for her and her child and expenses of the proceeding. She alleged that the petitioner had

neglected her and the child and as she had no income to support her and the child, maintenance pendente lite should be granted. Upon a

consideration of the evidence adduced by the parties, the learned Subordinate Judge directed payment of pendente lite maintenance at the rate of

Rs. 150/- per month to the wife and at the rate of Rs. 80/- per month to the child. A consolidated sum of Rs. 300/- was awarded towards

expenses of the proceeding. It may be noted here that the petitioner disputed that he had sired the child.

In this revision the challenge of the petitioner is to the grant of pendente lite maintenance to the child, on a petition filed u/s 24 of the Act. He has

also challenged the quantum of maintenance as excessive.

Mr. Sahu, learned counsel for the petitioner, contends that having regard to the provisions contained in Section 24, the court was incompetent to

grant pendente lite maintenance to the child. He relies on a Bench decision of this Court in the case of Akasam Chinna Babu Vs. Akasam Parbati

and Another, , where this Court held (para 6):--

Section 24, however, does not authorise grant of any pendente lite maintenance to the daughter and in terms applies either to the wife or the

husband as the case may be......

Section 24 of the Act is as follows:--

Maintenance ''Pendente lite'' and expenses of the 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.

Mr. N. K. Mishra, learned counsel for the opposite party, however, contends that pendente lite maintenance can be awarded On an application

u/s 24 of the Act. He has further that the provisions contained in Section 26 of the Act must not he lost sight of while considering the question of

grant of pendente lite maintenance to the child on an application made by the wife or the husband u/s 24. His contention is that the application filed

by the wife though labelled as one u/s 24, having regard to the averments, should be treated and construed as one under Sections 24 and 26 of the

Act. Mr. Misra further urged that the provisions contained in Section 26 were not brought to the notice of the Bench of this Court which decided

Akasam''s case (supra) and so, the said decision is not binding. Section 26 of the Act reads as follows:--

Section 26. 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, 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 proceeding for obtaining such decree were still pending, and the court may also from time to time revoke, suspend or vary any such

order and provisions previously made.

The requirement of the husband or the wife would also include the expenses required for the maintenance of the child. The interpretation of the

provisions should not be too literal; butpurposive and functional. As the provisions contained in Section 26 would go to indicate, the court is

empowered to pass interim orders as it may deem just and proper with respect to maintenance of minor children. Section 26 operates also during

the pendency of the proceeding under the Hindu Marriage Act. So, assuming that the provisions contained in Section 24 stricto sensu do not

authorize grant of maintenance to child. Section 26 authorises the grant of pendente lite maintenance by way of interim orders during the pendency

of the proceeding. In my view, if the petition contains the averments, notwithstanding the fact that the petition for maintenance pendente lite is not

made u/s 26, but only u/s 24, the court is empower ed to grant maintenance u/s 24 or u/s 24 read with Section 26 of the Act.

Now coming to the authorities, Sachar, J. in A. Damodar v. Bimala 1974 RLR 180 held:

Section 24 of the Act by nature is a summary remedy providing for immediate relief. If that be the object, it stands to reason that the husband

cannot plead that the order u/s 24 cannot be passed directing maintenance to be paid to the minor child who is admittedly living with the wife. The

word ''wife'' or the ''husband'' should not be interpreted in such a strict and literal sense as to rule out maintenance for the benefit of the dependent

children living with the wife because by the very nature of circumstances, the requirement of wife will include the requirement of minor children

dependent on her and living with her.

In Katamanchi v. Katamanchi (1974) 2 AWR 359 a Division Bench of the Andhra Pradesh High Court held:--

While granting maintenance pen-dente lite to the wife or to the husband, as the case may be, regard should also be had to Section 26. When the

wife makes an application u/s 24 of the Act to the Court for the grant of interim maintenance to the children also, the Court can grant the relief to

the children also u/s 26 wherever it considers just and proper.

A Division Bench of the Punjab and Haryana High Court in Usha v. Sudhir, Kumar 1975 HLR 1 :

On an application u/s 24 filed by the wife, the maintenance to the children living with the wife can also be granted.

It may be noted that the application in Andhra Pradesh case was made u/s 24. So, their Lordships held that if the averments be there, recourse

may be had to Section 26. If authority is to be sought, the same lies entrenched in Section 26.

In D. Thimmappa Vs. R. Nagaveni, , Venkateswami, J. observed (at p. 217):

......When a wife claims maintenance and she has children to support, any interim maintenance to wife alone is meaningless if it does not provide

for the maintenance of children also......

In Narendra Kumar Mehta Vs. Suraj Mehta, , a Division Bench of the Andhra Pradesh High Court held (para 15):

......The interim order passed u/s 26 would obviously be similar to the one u/s 24 in relation to the wife or the husband. The contention of Mr.

Ugle learned counsel for the husband that no order awarding maintenance to the child could be granted u/s 24 of the Act, does not merit

acceptance having regard to the specific provision contained in Section 26 of the Act.......

Being of the view that the provisions contained in Sections 24 and 26 are beneficial provisions and literal interpretation would be unsound, I hold

that on an application claiming maintenance for the husband or the wife, as the case may be and for the child, maintenance can be granted to the

child howsoever labelled the petition may be. The substance matters, not the form. If there be authority under the provisions, there is end of the

matter.

The next question is the effect of the Division Bench decision of this Court in Akasam Chinna Babu Vs. Akasam Parbati and Another, .

Unfortunately, the attention of the Division Bench was not drawn to the provisions contained in Section 26 of the Act. I have no doubt in my mind

that the Bench would not have refused maintenance to the child if the provisions contained in Section 26 of the Act had been brought to its notice.

If the application was labelled as one u/s 24, the present to (sic) the necessary averments claiming maintenance for the child, the same can be

treated, as one under Sections 24 and 26 of the Act.

Regarding the binding nature of precedents, we get the principle from Halsbury''s Laws of England, Third Edition, Vol. 22, para 1687, pages

799-800 which has been cited with approval by the Supreme Court in Jaisri Sahu Vs. Rajdewan Dubey and Others, . The exception is:

The court is not bound to follow a decision of its own if given per incuriam. A decision is given per incuriam when the court has acted in ignorance

of a previous decision of its own or of a court of a co-ordinate jurisdiction which covered the case before it, or when it has acted in ignorance of a

decision of the House of Lords. In the former case, it must decide which decision to follow, and in the latter it is bound by the decision of the

House of Lords. A decision may also be given per incuriam when it is given in ignorance of the terms of the statute or of a rule having the force of a

statute.

As I have observed that the provisions contained in Section 26 were not brought to the notice of the Division Bench, the said authority is not

binding oh me. It is worthwhile to note that the decision in Akasam Chinna Babu Vs. Akasam Parbati and Another, has not been followed in D.

Thimmappa Vs. R. Nagaveni, on the ground that the provisions contained in Section 26 were not brought to the notice of the Court.

With respect I cannot follow the view expressed in the case of Bankim Chandra Roy Vs. Smt. Anjali Roy, and the view taken by the Jammu

and Kashmir High Court in Puran Chand Vs. Mst. Kamla Devi, inasmuch as the attention of the Benches deciding the said cases were not drawn

to Section 26.

The objection raised by the petitioner that the learned Subordinate Judge had no jurisdiction to grant maintenance to the child, therefore, fails.

The next question is regarding quantum of maintenance. After strenous argument, both parties agree that the maintenance awarded to the child

may be reduced by Rs. 30/-. So, the order granting maintenance to the child is modified. The child would be entitled to maintenance at the rate of

Rs. 50/-per month instead of Rs. 80/- as granted by the learned Subordinate Judge. Maintenance, granted to the wife stands.

With the aforesaid modification, the revision is dismissed. In the circumstances, there would be no order as to costs.