Smt. Sudershan Kumari vs Vidya Parkash

Mehar Singh, J.—This is an appeal u/s 28 of the Hindu Marriage Act, 1955 (Act 25 of 1955), by the wife from an order, dated November 11, 1954, of the Additional District Judge of Delhi dismissing her application u/s 24 of the Act for allowance of litigation expenses and monthly maintenance during the pendency of a devoice petition against her by the husband, who is the respondent in this appeal. The ground given by the learned Judge for disallowing this claim of the wife is that she has admittedly been living separately from her husband in spite of decree for restitution of conjugal rights having been passed against her. The husband who is present and has argued his side of the case himself has shown a copy of the order dated November 2, 1931, made in revision by S. B Capoor J, dismissing the wife''s application for maintenance u/s 483 of the Code of Criminal Procedure obviously on the ground of her refusal to live with the husband. But that order was made before the date of the decree for restitution of conjugal rights which was passed against the wife on February 28, 1962.

The claim made by the wife is to be considered not on any other basis but just on the basis of what is provided in section 24 of the Act. Section 24 reads 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" Apparently, read as it is, this section clearly means that once proceedings are taken under Act 25 of 1955, then either party can apply for relief under this section provided it appears to the Court that such party has no independent income sufficient for support and to meet the necessary expenses of the proceedings. No other conditions are stated in the section except that it should appear to the Court that there is no independent sufficient income of the party making the claim for support as also to meet the expenses of the litigation in the proceedings. It is obvious that disobedience of a decree for restitution of conjugal rights is not a ground in the terms of the section on the basis of which a claim under the section can be denied to a party making such a claim. It is another matter that on the material placed before the Court, it may not appear that the party making the claim has no independent income sufficient for her or his support and the necessary expenses of the proceedings; It is true that as the word used in the section is may, it is discretionary with the Court to make an order under this section, but the discretion has to be exercised judicially, which in a case like this apparently means it has to be exercised in the terms of the section itself. As has been pointed out, disobedience of a decree for restitution of conjugal rights is not a ground for refusal of relief under the said section.

The husband, who has, as has been said before, himself argued his put in this appeal, has pointed out that the order of the learned Additional District Judge starts with this that the arguments have been heard with regard to the respondent''s application u/s 24, and he contends that every thing that the wife had to urge in support of her application was urged before the learned Additional Judge, But it is stated by the learned counsel for the wile that arguments were just heard on the application of the wife and no opportunity was given to her to show that she has no independent income sufficient for her support and necessary expenses of the divorce petition pending against her. The learned Judge should have given an opportunity to the wife to show whether or not she has any such income and should have also given an opportunity to the husband to show the contrary. It was only after that that he could say whether it appeared to him or not that the wife has no independent income sufficient for her support and the necessary expenses of the divorce proceedings. The husband has stated that the wife persistently refused to live with him since 1957 and that since then she has been able to maintain herself and that he is providing maintenance to his child, but this is a consideration which does not come in at this stage. What has happened is that the learned Additional District Judge has not given a fair opportunity to the wife to support her application in the terms of section 24 and he has proceeded to dismiss it on the sole ground of her disobedience of the decree for restitution of conjugal right?, which as I have said, is, in my opinion, not a ground upon which relief u/s 24 can be refused.

In the circumstances, this appeal is accepted and the application of the wife u/s 24 of Act 25 of 1955 is remitted to the learned trial Judge to follow the provisions of section 24 of that Act and then to dispose of that application on merits. There is no order in regard to costs in this appeal. The parties are directed to appear in the trial Court on May 10, 1965.