Pratima Yadav vs Vinod Kumar Yadav

Saeed-uz-Zaman Siddiqi, J.—The instant appeal has been preferred u/s 28 of Hindu Marriage Act, read with Section 19 of Family Court Act, against the order dated 10.10.2012, passed by learned Civil Judge (S.D.), Ambedkar Nagar in Case No. 259 of 2004 by which the suit for divorce was dismissed as withdrawn. Brief facts of the case are that the respondent filed suit for divorce which was registered by the learned Trial Court as Suit No. 259 of 2004. In the said suit the appellant moved an application for interim maintenance u/s 24 of Hindu Marriage Act (hereinafter referred to as the "Act"), which was rejected by the learned Trial Court against which she preferred Civil Revision No. 69 of 2008 which was allowed by learned Additional District Judge, Ambedkar Nagar and the impugned order was quashed and the learned Trial Court was directed to decide the application for ad-interim maintenance u/s 24 of the Act on merits. This order was passed on 12.01.2012. The mischievous husband immediately moved an application for withdrawal of the suit which was numbered as 54-A1, against which the appellant filed objection 55-C. Learned Trial Court allowed the application subject to payment of Rs. 400/- as cost and the suit was dismissed as withdrawn. The wife/defendant has preferred this appeal against the impugned order.

Heard learned counsel for both the parties and perused the records.

The only point which is involved in this appeal is that the suit was filed in the year 2004. The application u/s 24 of the Act was moved which was dismissed vide order dated 1.10.2008. Now the suit has been dismissed as withdrawn vide order dated 10.10.2012. It was argued by the learned counsel for appellant that during the period of institution of suit till its dismissal the defendant who is appellant before this Court is entitled for ad-interim maintenance as provided u/s 24 of the Act.

For ready reference Section 24 of Act is reproduced below:--

Maintenance pendente lite and expenses 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.

A plain reading of the Act shows that intention of the legislature is that where in any proceedings 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, order the respondent to pay the expenses of the proceedings and monthly during the proceeding. These words make the intention of the legislature quite clear that expenses have to be allowed by the Court if the requirement as provided u/s 24 of Act are fulfilled for a period during the pendency of the suit or proceeding. Termination of proceedings cannot be treated to be a bar of providing interim maintenance u/s 24 of the Act. In this regard the order of rejection of ad interim maintenance has already been quashed by the Revisional Court vide order dated 12.1.2012, passed in Civil Revision No. 69 of 2008. It was incumbent upon the learned Trial Court to have implemented the order of the Revisional Court at the time of withdrawing of the suit which the learned Trial Court has failed to do. The object of enacting Section 24 of the Act is that an indigent spouse should not suffer during pendency of the proceedings because of his/her poverty. The whole purpose of Section would frustrate in case it is dismissed on the ground that after the decision of the main petition it does not survive.

A Division Bench of Punjab and Haryana High Court in the case of Sohan Lal Vs. Kamlesh, , has held as under:--

From a reading of the section, it is evident that the Court, during the pendency of the proceedings under the Act, viz., for restitution of conjugal rights, judicial separation, divorce or nullity of marriage, can grant to a spouse having no sufficient income to maintain himself/herself and to meet the necessary expenses of the proceeding, maintenance pendente lite and litigation expenses. The object of enacting the section is that an indigent spouse should not suffer during the pendency of the proceedings because of his/her poverty. It is the duty of the Court to decide such an application expeditiously so that the indigent spouse is not handicapped because of want of funds. However, if the application under S. 24 is not decided during the pendency of the main petition on account of dilatory tactics of the other spouse or for some unforeseen circumstances, the whole purpose of the section stands frustrated in case it is dismissed on the ground that after the decision of main petition it does not survive. Therefore, we are of the view that even if the main petition is decided finally, the application u/s 24 which is pending decision can continue. Similarly, a revision petition filed against an order u/s 24 can continue in spite of disposal of the main petition. In the above view, we are fortified by the following observations of D.S. Tewatia, J. in Amrik Singh Vs. Narinder Kaur, :--

If the view is that the provisions of Section 24 of the Act were intended by the legislature to enable the indigent spouse to secure wherewithal to defend the proceedings against oneself and to maintain oneself during the pendency of the proceedings, then it is incumbent upon the Courts to take an immediate decision upon the petition u/s 24 of the Act, otherwise the delay would defeat the very purpose. Otherwise in a case where the Court delays the decision on the application till the fag-end of the trial of the main case, right to maintenance and litigation expenses would be denied to the applicant on the specious argument that she had been able to prosecute the litigation for all that long period and had survived and so she was not entitled to favourable order on her application, for the litigation expenses and the interim maintenance u/s 24 of the Act was intended merely to meet the contingency of an indigent spouse not being able to prosecute the case and survive during the pendency of the proceedings which contingency would no longer exist when the proceedings had reached the stage of conclusion though not finally concluded.

It was further held:--

Generally, the petitions under these sections are decided first and should as a matter of fact be decided before conclusion of main petition. It is further observed that a reading of Sections 24 and 26 does not show that if the main petition under Sections 9, 10, 12 or 13 is disposed of, the jurisdiction of the Court to award maintenance pendente lite by an order to be passed thereafter is taken away. This view was affirmed in Bhanwar Lal Vs. Smt. Kamla Devi, . The same view was taken by a Division Bench of Mysore High Court in N. Subramanyam Vs. M.G. Saraswathi, . It was held therein that it cannot be said that since the proceedings had themselves terminated, there was no occasion to grant interim maintenance or expense. The right to those items, if established, could not be defeated by allowing time to elapse and the pendency of the proceedings to end. We are in respectful agreement with the observations made in the aforesaid cases.

It has been further observed:--

The word "proceeding" in the section appears at three places and it connotes the main proceedings, that is, proceedings other than proceedings u/s 24. The words "monthly during the proceedings such sum" are very important. These words show the intention of the legislature that it intended to give maintenance to the indigent spouse till disposal of the main petition. If the application u/s 24 is taken to be included in the word "proceeding"'', anomalous results would follow. Therefore, we are of the opinion that if the application u/s 24 continues after dismissal of the main petition, the applicant is entitled to the maintenance till the date of the decision of the main petition.

Similar view has been taken by the Calcutta High Court in the case of Chitra Sengupta Vs. Dhruba Jyoti Sengupta, , wherein it has been held that the wife-appellant, who appealed against a decree of divorce passed against him, filed an application for maintenance pendente lite and cost of litigation u/s 24, it would be maintainable. In this case it was also held that "we are, however, of opinion that if she is otherwise entitled to maintenance under S. 24, Hindu Marriage Act, the fact that she made no such application in the trial Court would be of no consequence."

In Vinod Kimar Kejriwal Vs. Usha Vinod Kejriwal, , the Bombay High Court has also taken the same view as discussed above. In view of the discussions made above, appeal is allowed. The impugned order is set aside inasmuch as it does not discuss anything about maintenance u/s 24 of the Act. The withdrawal of the suit as desired by the plaintiff (respondent before me) is not disturbed by this order but the learned Trial Court is directed to decide application of the appellant/wife u/s 24 of Hindu Marriage Act, without delay, on merits.