Amit Roy vs Mira Roy

Dibyendu Bhusan Dutta, J.—The instant revisional application u/s 115 of the CPC is directed against the order No. 84 dated March 16,1998 passed by Sri P.S. Dutta, Additional District Judge, 5th Court, at Alipore, in Matrimonial Suit No. 16 of 1995.

The facts and circumstances leading to the present revisional application, in substance, are as follows.

The wife/opposite party filed an application u/s 125 of the Code of Criminal Procedure against the husband/Petitioner in the year 1980 in the court of the Metropolitan Magistrate Calcutta, claiming maintenance allowance for herself and also her daughter who was born on December 29, 1977. The learned Magistrate awarded maintenance allowance at the rate of Rs. 300.00 per month for the wife and at the rate of Rs. 200.00 per month for the daughter.

The husband moved the High Court and thereafter the Hon''ble Supreme Court unsuccessful. The wife/Opposite party prayed for enhancement of the rates of maintenance allowance which was allowed. It was initially enhanced to Rs. 500.00 each per month for the wife and the daughter by the magisterial order dated October 6, 1989 and finally on the transfer of the proceeding u/s 125 Code of Criminal Procedure to the Family Court, Calcutta in Misc. Case No. 168 of 1994, the rates of maintenance allowance were enhanced to Rs. 900.00 each by the order dated November 8, 1994 passed by the Family Court.

The husband had, in the meantime, filed a suit for divorce u/s 13 of the Hindu Marriage Act on September 6, 1994 being Mat. Suit No. 932 of 1994 which was subsequently re-numbered as Matrimonial suit No. 16 of 1995. While the wife was getting a total sum of Rs. 1800.00 per month towards the maintenance allowance for herself as well as her daughter, in terms of the Family Court''s order dated November 8, 1994 u/s 125 Code of Criminal Procedure, the wife tiled an application u/s 24 of the Mindu Marriage Act in the Matrimonial Suit on March 14, 1995 claiming a total sum of Rs. 2500.00 towards maintenance pendente lite for herself as well as her daughter and also a sum of Rs. 25,000.00 towards litigation cost. The said case was registered as misc. Case No. 163 of 1995 and by the order dated February 29, 1996, the said application was disposed of by the Matrimonial Court. The Matrimonial Court took into account the fact that the wife was already getting a sum of Rs. 1800/- per month towards the maintenance allowance for herself as well as her daughter in terms of the order passed in the proceeding u/s 125 Code of Criminal Procedure and awarded maintenance pendente lite only to the extent of Rs. 100.00 each for the wife and the daughter with effect from the date of the said application u/s 24 of the Hindu. Marriage Act.

During the pendency of the said application u/s 24 and before it was allowed by the aforesaid order dated February 29, 1996, the wife approached the Matrimonial Court with an independent application u/s 26 of the Hindu Marriage Act on claiming maintenance pendente lite at the rate of Rs. 2,500.00 only for her daughter. The said application u/s 26 of the said Act was registered as Misc. Case No. 10 of 1995 and the Matrimonial Court by its order dated December 12, 1996 dismissed the said application sustaining the objection that was raised on behalf of the husband/Petitioner against the maintainability of the said application u/s 26 on the ground that the daughter had already attained majority. The said daughter attained the majority on December 29, 1995 and despite her majority, the husband went on paying the maintenance allowance that was awarded by the Family Court u/s 125 of the Code of Criminal Procedure for both the wife and the daughter but discontinued the payment of the maintenance allowance which was being paid to the daughter in terms of the said order of the Family Court u/s 125 of the Code of Criminal Procedure as well as the order dated February 29, 1996 that was passed by the Matrimonial Court u/s 24 of the Hindu Marriage Act. After the aforesaid application u/s 26 of the Hindu Marriage Act was dismissed, the wife filed an application before the Matrimonial Court on March 10, 1998 which was styled as one u/s 24 of the Hindu Marriage Act read with Section 151 of the Code of Criminal Procedure for modification of the order dated December 12, 1996 rejecting the application u/s 26 of the Hindu Marriage Act and also for a direction by the Matrimonial Court upon the husband-father to continue to pay the maintenance allowance which he was paying to his daughter in terms of the order of the Family Court as well as the order of the Matrimonial Court u/s 24 with retrospective effect in view of the judgment passed by the Supreme Court in Smt. Jasbir Kaur Sehgal Vs. District Judge, Dehradun and others,

By the impugned order, the Matrimonial Court allowed the said petition dated March 10, 1998 filed by the wife u/s 24 of the Hindu Marriage Act read with Section 151 CPC code declaring the daughter''s right to get such maintenance from the father -Petitioner as she was getting prior to the passing of the order dated December 12, 1996 with effect from the date of discontinuance of payments of such maintenance in view of the decision of the Supreme Court referred to above. In doing so, the Matrimonial Court did also modify the order dated December 12, 1996. In challenging the legality of this order it was submitted on behalf of the husband/Petitioner that the Court below acted illegally and with material irregularity in exercise of its jurisdiction in modifying or reviewing the order dated December 12, 1996 inasmuch as the subsequent judgment of the Supreme Court delivered subsequent to the order passed could never be a ground for review it was also submitted that the Matrimonial Court acted illegally in exercising its jurisdiction in the manner it did. Inasmuch as it filed to appreciate the fact that the order dated December 12, 1996 was passed on an application u/s 26 of the Hindu Marriage Act while according to the Supreme Court decision, on the basis of which the application March 10, 1998 was filed and the impugned order was passed, Sections 24 and 26 operate on their own fields. It was also contended on behalf of the husband/Petitioner that there is no evidence that the daughter has been staying with her mother and that the mother is actually maintaining her. From the impugned order it would appear that the court below negatived the above contention of the Petitioner by observing that there is no evidence that the daughter is living elsewhere apart from mother or for that matter any person other than the mother was maintaining the daughter. The Court below was also of the view that neither the daughter nor the daughter has any independent source of income. Finally, it was submitted on behalf of the husband-Petitioner that in view of the Supreme Court decision referred to above, the daughter could at best be entitled to get maintenance allowance u/s 24 with effect from August 27, 1997 the date on which the said decision was rendered and not with retrospective effect from the month of discontinuance of payment as has been directed by the impugned order.

On behalf of wife/Opposite party, it was, on the other hand, contended that by the subsequent application u/s 24 of the Hindu Marriage Act the wife did not really seek any review of the earlier order dated December 12, 1996 whereby her application for maintenance allowance u/s 26 was rejected. It was submitted that by the said application, the wife was only renewed her prayer for maintenance allowance which her daughter was getting in terms of the earlier order dated February 9, 1996 but was discontinued to be paid by the Petitioner/husband in terms of the subsequent order dated December 12, 1996. It was also submitted on behalf of the wife/Opposite party that the impugned order does not suffer from any illegality or irregularity so as to call for any interference by this Court in exercise of the revisional application.

The point for my decision would be whether any interference with the impugned order could be justified in the facts and circumstances of this case.

On a perusal of the impugned order, it becomes clear that the learned Court below was of the view that the order dated December 12, 1996 did operate as a bar to the wife''s prayer dated March 10, 1998 for maintenance pendente lite for the daughter to which the wife would be entitled by reason of the Supreme Court decision referred to above. In the Supreme Court decision, it was held that although Section 24 of the Hindu Marriage Act speaks of maintenance of the wife during the pendency of the proceeding but the said section cannot be read in isolation and cannot be given restricted meaning to hold that it is the maintenance of the wife alone and no one else. Under the Hindu Adoptions and Maintenance Act, 1956 it is the obligation of a person to maintain his unmarried daughter, no matter whether she is a major or minor in case she is unable to maintain herself. The Supreme Court decision would be an authority for the proposition that where the wife has no source of income and she is also maintaining her major unmarried daughter, her right to claim maintenance u/s 24 would include not only her own maintenance but also that of such daughter.

The decision did not effect any change in the law which stood earlier to the effect that Section 26 of the Hindu Marriage Act was not applicable to a daughter who has already attained majority.

In the circumstances, the order dated December 12, 1996 cannot be said to be an incorrect order inasmuch as the wife''s prayer for further maintenance allowance for the daughter u/s 26 of the Hindu Marriage Act was rejected by the order in view of the fact that the daughter had already become a major. As such, the question of reviewing the said order dated December 12. 1996 on the basis of the Supreme Court decision could not as rise at all. The order dated December 12, 1996 was an independent order that was passed on the basis of an application u/s 26 of the Hindu Marriage Act and the said order could not have any effect of modifying and/or cancelling the order dated February 29, 1996 awarding maintenance pendente lite for the wife and the daughter u/s 24 of the Hindu Marriage Act. The fact remains that the order dated February 29. 1996 was passed on a contested hearing of the application u/s 24 of the Hindu Marriage Act and by the said order the husband was saddled with liability to pay maintenance pendente lite for the daughter with effect from the date of the application that is March 14, 1995 at a time (that is on February 29, 1996) when the daughter was already a major. Had the husband felt aggrieved by the said order dated February 29, 1996 so far as it related to the grant of maintenance pendente lite in favour of the daughter u/s 24 of the Hindu Marriage Act for the period following December 29, 1995 the date of attainment of her majority, he could have moved the higher forum for redressal. But it is an admitted fact that he went on complying with the said order until and unless the subsequent order dated December 12, 1996 was passed rejecting the application u/s 26 of the Hindu Marriage Act. By the order dated December 12, 1996 the Court below did never indicate that the daughter was not entitled to any maintenance pendente lite u/s 24 in terms of the earlier order dated February 29, 1996. Nor did the question whether the daughter would continue to be entitled to maintenance u/s 24 even after attainment of majority with effect from December 29, 1995 fall for consideration of the Court below when it was disposing of the wife''s application for maintenance for the daughter u/s 26. It is indeed needless to comment that Sections 24 and 26 of the Hindu Marriage Act operate in their respective fields. As such, it is not really understood how the husband could take shelter under the order dated December 12, 1996 for discontinuance of the payment of maintenance pendente lite for the daughter u/s 24 in terms of the order dated February 29, 1996 which was still valid and operative.

On the factual aspect of the matter it cannot be said that the Court below acted illegally and with material irregularity in coming to a prima facie finding that the daughter does not have any independent source of income or in negativing the contention of the husband that in the absence of any evidence from the side of the wife in support of the fact that the daughter was still living with and was being maintained by her, the wife would not be entitled to any order of maintenance for the daughter. Indeed, by the subsequent application u/s 24 of the Hindu Marriage Act, what the wife actually intended to do was to seek the restoration of the status quo ante that was obtaining prior to the passing of the order dated December 12, 1996 in relation to the grant of maintenance pendente lite u/s 24 of the Hindu Marriage Act in favour of her major unmarried daughter in terms of order dated February 29, 1996 and by the impugned order dated March 16, 1998 although on different grounds, the Court below has actually brought about that result and has granted the said relief to which the wife was really entitled to.

In the circumstances I do not find any justification to interfere with the impugned order.

Before I conclude, I would like to refer to the decision of Kirti Malhotra v. M.K. Malhotra, 1995 Supp. (3) SCC 522 which was cited on behalf of the wife. It was contended on behalf of the wife that even in 1994 in which the said decision was pronounced a major son was awarded maintenance under the Hindu Marriage Act by the Supreme Court. But the said decision was one u/s 25 of the Hindu Marriage Act which provides for permanent alimony after the passing of the decree of divorce, which in our present case, we are concerned with the grant of alimony pendente lite u/s 24 of the Hindu Marriage Act. These two sections obviously are operating in different fields. Moreover, in view of what I have already observed, the said decision would be of no help in deciding the point at issue.

In the circumstances, the instant revisional application is disposed of.

There will be, however, no order as to costs.

Urgent xerox certified copy of this order, if applied for, be given to the learned Advocate-on-record, within three days from the date of application.