V. Nandakumar vs Smt. M. Indumathi

Mohan Shantanagoudar, J.—The Petitioner is the husband of the Respondent. (The parties are hereinafter referred to as husband and wife.) The wife has filed petition u/s 13 of the Hindu Marriage Act, 1955, (hereinafter referred to as the Act'' for short) against the husband for the relief of divorce on certain allegations. The same is numbered as M.C. No. 31/2010. Statement of objections are filed by the husband to the main matter. The husband had also filed M.C. No. 1256/2010 praying for divorce. Both petitions are pending consideration.

An application came to be filed by the wife u/s 25 of the Act, praying for permanent alimony to an extent of 25 lakhs and she has also sought for litigation expenses to the tune of 25,000/-. The statement of objections are filed by the husband to the application filed u/s 25 of the Act on 25.9.2010 opposing the said application. The Family Court on considering the material on record, granted the interim maintenance of 5,500/- per month to the wife from the date of filing the application. The said order is called in question in this writ petition.

Learned Counsel appearing on behalf of the husband submits that no application is filed by the wife praying for interim maintenance and therefore, the Court below is not justified in granting the interim maintenance in favour of wife. It is no doubt true that the wife has not filed an application praying for interim maintenance. However, the Court below having heard both the learned advocates on the question of granting interim maintenance, awarded 5,500/- per month to the wife.

Section 24 of the Act deals with grant of maintenance pendente lite. Plain meaning of Section 24 of the Act prima facie supports the arguments of the learned Counsel for the husband that the maintenance pendente lite may be granted in favour of the wife on the application filed by the wife and not otherwise.

But, the legality of the impugned order will have to be tested by keeping in mind the object with which Section 24 of the Act is enacted. There cannot be any dispute that the object of a proceeding for maintenance is to prevent vagrancy by compelling the husband or the father to support his wife or child unable to support herself or itself. The provision is not in the nature of penal provision, but, is only intended for the enforcement of a duty, a default in which may lead to vagrancy. The real object is to provide food, clothing and shelter to the deserted wife and children. The provision enables the Court to see that the indigent spouse is put in a financial condition in which the party concerned may produce proper matrimonial evidence in the case. The Court has to see that the party is not handicapped in or prevented from bringing all the relevant facts before the Court for decision of the case because of his or her poverty. The Court is expected to conduct the proceedings equitably between the parties and can take all steps consistent with law to achieve its object. In order to obviate against the financial handicap of a party to a litigation, Section 24 is enacted. The said provision is a socio-economic piece of legislation. The wife who is unable to maintain herself and is living separately from her husband during the pendency of matrimonial dispute in the Court has to be given a reasonable sum towards the interim maintenance. Similar is the case with a minor child. It is not only the legal duty, but a pious obligation of the husband and the father, as the case may be, to maintain his wife and child. Keeping this object in mind, the trial Court must have passed the impugned order in favour of the wife in order to see that the wife is able to maintain herself and to defend her case.

A similar question arose before the Orissa High Court in the case Of Smt. Bulbul Samantaray and Others Vs. Dhirendra Kumar Samantaray, . In the said matter, an application came to be filed u/s 24 of the Hindu Marriage Act praying for maintenance in her favour. However, she had not prayed for maintenance on behalf of minor child. The Orissa High Court has concluded that simply because such a prayer was not made in respect of maintenance of a minor child, the Court below should not have refused the interim maintenance to the minor. The High Court considering the age of the minor (6 years) and looking to the facts and circumstances of the case, directed the opposite party to pay certain amount of interim maintenance.

The Division Bench of Madras High Court in the case of Chandrika Vs. M. Vijayakumar, while dealing with similar situation, observed thus:

We are also in entire agreement with the view expressed by the/earned Judge in the said judgment. The conjoint reading of Sections 24 and 25 of the Act clearly shows that during the disposal of the main petition for divorce, it is open to the Court to pass appropriate orders for alimony or maintenance even without any proper application.

The Division Bench of Madras High Court while concluding so has relied upon the earlier judgment of the very High Court in the case of T. Chandra Rajan Vs. K. Radha alias Mahalakshmi, ).

Though the application praying for interim maintenance may be proper, the Court below has chosen to grant an order of interim maintenance without a formal application keeping in mind the urgency of the situation and the object behind Section 24 of the Act. The Court below is justified in doing so under the peculiar facts and circumstances of the case. Moreover, both parties are heard on the question of interim maintenance before the Court below and thereafter, the impugned order is passed. Thus, it cannot be said that the impugned order is passed without notice to the husband.

The Apex Court and this Court have time and again ruled that this Court must exercise its discretionary powers under Article 226 of the Constitution of India only in furtherance of the public interest and not merely of making out a legal point. It is relevant to note the judgment of the Apex Court in the case of Master Marine Services Pvt. Ltd. Vs. Metcalfe and Hodgkinson Pvt. Ltd. and Another, , wherein it is observed thus:

Para 15: xxx xxx xxx

Even when some defect is found in the decision-making process, the court must exercise its discretionary powers under Article 226 with great caution and should exercise it only in furtherance of public interest and not merely on the making out of a legal point. The court should always keep the larger public interest in mind in order to decide whether its intervention is called for or not. Only when it comes to a conclusion the overwhelming public interest requires interference, the court should interfere.

The impugned order is passed keeping in mind the object of the Legislature in enacting Section 24 of the Act. The same cannot be interfered with, though the Petitioner may be justified in arguing that the Act requires filing of the application praying for interim maintenance. Ultimately, the Courts are meant for doing justice. Since justice is done in the matter on hand and as this Court finds that the impugned order is in consonance of the object of Section 24 of the Act, no interference is called for in the impugned order.

The quantum of maintenance awarded by the Court below cannot be said to be on the higher side having regard to the fact that the husband is getting 17,000/- per month. The couple is having a daughter and the said daughter is living with the wife. Therefore, the amount of 5,500/- per month awarded by the Court below towards interim alimony cannot be said to be on the higher side.

Petition fails and accordingly, the same stands dismissed.