Shri Jagdish Chander vs Shrimati Parkash Vati

P.C. Pandit, J.—The facts relevant for determining the present appeal are these. On 19th March, 1962 a petition for judicial separation u/s 10 of the Hindu Marriage Act, 1955 (hereinafter referred to as the Act) was filed by Jagdish Chander against his wife, Smt. Parkash Vati. During the pendency of this petition, on 7th May, 1962 Smt. Parkash Vati filed an application for maintenance pendente lite u/s 24 of the Act. This was granted on 12th June.1982 and it was ordered that she should be paid Rs. 25/- per mensem as maintenance with effect from 1st June, 1962. On 30th March, 1963 an application u/s 25 of the Act for fixing permanent alimony was filed by the wife praying that in case a decide for judicial separation is granted, she should be paid maintenance on permanent basis. Notice was given to the other side regarding this application and the husband gave a reply on 3rd April 1963, on which date the trial Court ordered judicial separation. The application u/s 25, however, remained pending for decision. On 10th July, 1963, the wife filed an appeal in this Court (F. A. O. No. 102-D of 1963) against the order granting judicial separation. On 20th March, 1964 this appeal came up for hearing before Grover J, who dismissed the same, but towards the end of his judgment, the learned Judge observed thus-

Counsel say that an application u/s 25 of the Hindu Marriage Act l955,for grant of maintenance is pending before the Court below but it was directed that during the pendency of the petition the wife be paid a sum of Rs. 25/- per mensem as maintenance. On giving the matter due consideration, I am of the view that so far as interim rate of maintenance is concerned, an amount of Rs. 25/- per mensem is wholly inadequate and she should be paid at the rate of Rs. 50/- per mensem at least from the beginning of 1st April 1964 till the maintenance is fixed by the Court below in the application which is pending before it. I should like to make it clear that the wife shall be entitled to receive interim maintenance at the rate of Rs. 25/- per mensem up to 1st April, 1964 and thereafter at the rate of Rs. 50/- per mensem till the decision of her application u/s 25. It will be open to the Court to fix such amount as is considered proper and adequate after evidence has been examined in her application u/s 25 and the means of the husband as well as the wife are taken into account. This last paragraph is now being challenged by the husband in the present appeal under Clause 10 of the Letters Patent.

Learned counsel for the appellant submitted that the learned Single Judge had no jurisdiction to pass such an order because (a) no ground in this respect was taken by the respondent in the appeal filed in this Court (b) this order would prejudicially affect the interests of his client, because an application u/s 25 of the Act was still pending before the trial Court and (c) no application had been filed by the wife either u/s 24 or section 25 of the Act when her appeal was pending in this Court. Learned counsel for the respondent, on the other hand, contended that the learned Single Judge, when dismissing the appeal of the respondent, was making a final order regarding judicial separation and, therefore, he could under the provisions of section 25 pass an order with regard to permanent alimony. It was brought to the notice of the learned Single Judge that an application u/s 25 of the Act was pending before the trial Court and that he should pass suitable orders in this respect. Consequently the learned Judge held that the wife was entitled to permanent maintenance and so far as the actual quantum was concerned that would be determined by the trial Court At the same time, he passed an order granting interim, maintenance to the wife at the rate of Rs. 25/- per mensem upto 1st April, 1964 and after that Rs. 50/. per month till the decision of her application u/s 25 of the Act.

In the present case, there is no dispute about the facts. Sections 24 and 25 of the Act are as under-"S. 24. 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 proceedings, 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.

S. 25. (1) Any Court exercising jurisdiction under this Act may, at the time of passing any decree or at any time subsequent thereto, on application made to it for the purpose by either the wife or the husband, as the case may be, order that the respondent shall, while the applicant remains unmarried, pay to the applicant for her or his maintenance and support such gross sum or such monthly or periodical sum for a term not exceeding the life of the applicant as, having regard to the respondent''s own income and other property, if any, the income and other property, of the applicant and the conduct of the parties it may seem to the Court to be just, and any such payment may be secured, if necessary, by a charge on the immovable property of the respondent.

(2) If the Court is satisfied that there is a change in the circumstances of either party at any time alter it has made an order under sub-section (1), it may, at the instance of either party, vary modify or rescind any such order in such manner as the Court may deem just.

(3) If the Court is satisfied that the party in whose favour an order has been made under this section has remarried or, if such party is the wife, that she has not remained chaste, or, if such party is the husband, that he has had sexual intercourse with any woman outside wedlock, it shall rescind the order.

Permanent maintenance is granted under the provisions of section 25. If an application under this section had been made, the learned Single Judge could have decided this matter when he was disposing of the wife''s appeal and during the pendency of that application could have also granted interim maintenance u/s 24. Such an application was not, however filed before the learned Single Judge. It had, however, been made before the trial Court and was pending there. Learned counsel for the respondent submitted that when the learned Single Judge was going to dismiss the appeal, he brought to the notice of the learned Judge that an application u/s 25 had already been filed before the Court below and the same could be decided by the learned Judge, since he was finally confirming the decree of judicial separation between the parties. It was then that the learned Judge passed the impugned order. A bare reading of the provisions of section 25 would make it clear that an application had to be made before the learned Single Judge before the permanent alimony could be granted by him. In my opinion, such an application should be in writing, because the facts alleged therein and the reply given thereto by the other side have to be adjudicated upon after framing the necessary issues, which would, ordinarily, not be possible in the case of an oral application. The learned Judge could have transferred the application filed before the trial Court to his own file, but this was not admittedly done in the present case. It is also not the plea of the respondent that her application had even been orally transferred by the learned Judge to his own file. Under these circumstances, there is no escape from the conclusion that there was no application u/s 25 before the learned Judge when he passed the impugned order. That being so, the learned Single Judge, if I may say so with great respect had no jurisdiction to pass the impugned order. Learned counsel for the respondent then attempted to justify the order of the learned Judge under the provisions of section 24 of the Act. It is true that an interim maintenance can be granted u/s 24 during the pendency of an application for permanent alimony u/s 25, but in the present case I have already held that no proceedings u/s 25 were pending before the learned Single Judge and, consequently, the question of granting interim maintenance in those proceedings did not arise. It may, however, be mentioned that interim maintenance can be granted by the trial Court before whom the application u/s 25 of the Act is pending.

In view of what I have said above, this appeal filed by the husband is accepted. It may, however, be stated that this decision would have no effect on the order passed by the learned Single Judge dismissing the appeal filed by the wife against the decree for judicial separation passed by the trial Court. The parties are, in the circumstances of this case, left to bear their own costs.

Mehar Singh, J.

I agree.

Appeal accepted.