Bibha Bharti vs Uday Kumar

Abhijit Sinha, J.—The petitioner herein, the unfortunate and ill-fated spouse, impleaded as opposite party in a suit for divorce filed by her husband on the ground of cruelty, being Matrimonial Case No. 56 of 2001, has preferred this revision questioning the reasonability and propriety of the order dated 28.8.2007 passed therein by Sri J.P. Singh, the erstwhile Additional Principal Judge, Family Court, Patna, whereby he has directed for the constitution of a Medical Board for examination of the present petitioner with a direction to her to appear before the said Board even as her petition u/s 24 of the Hindu Marriage Act (hereinafter referred to as "the Act") for maintenance pendente lite and expenses of proceedings remains pending for about six years.

It will not be out of place to notice at the very outset that notwithstanding valid service of notice on him, the husband, O.P. herein, has not cared to put in an appearance to contest the present revision.

Following an irretrievable breakdown of the marriage solemnized on 10.3.1996 within six months thereof, the husband preferred the aforesaid Maintenance Case u/s 13 of the Act on the ground of cruelty without abiding by the decision of the Panchavati. The present petitioner on appearance filed a petition u/s 24 of the Act on 06.09.2001 demanding maintenance pendente lite and expenses of proceedings to which the husband filed his rejoinder on 28.9.2001.

The grievance of the petitioner is that although six years have passed no orders till now has been passed by the court on the petition u/s 24 of the Act at the instance of the husband who has managed to delay the issue under one pretext or the other. In this connection, it has been submitted that parties were heard on the petition u/s 24 of the Act on 4.4.2006 and orders were reserved but it was posted for rehearing on 26.4.2006 when a petition was filed by the husband claiming rehearing the matter on the allegation that the wife had remarried. The said petition after a full fledged hearing was dismissed vide order dated 19.2.2007. Not satisfied therewith the husband again filed a petition alleging that his wife had remarried and that a Medical Board be constituted to examine her as she had begotten children from her second marriage. The court as it appears, completely remiss of the fact that he had not so long before rejected the husband''s plea of the wife having contacted a second marriage acceded to the request by the unprecedented order which had been impugned herein.

Admittedly the object behind Section 24 of the Act providing for maintenance pendente lite to a party in matrimonial proceeding is obviously to provide financial assistance to the indigent spouse to maintain herself/himself during the pendency of the proceedings and also to have sufficient funds to contest the litigation. The question which would automatically fall for consideration is whether the exercise of power u/s 24 of the Act is dependent on the defence raised by the other party. In other words is the matrimonial court entitled to negative the claim of maintenance pendente lite merely on the ground of the averments in the petition or the allegations against wife?

The answer to this question depends on the real nature of this right of the spouse to claim maintenance during the pendency of the proceeding. Admittedly the right of a wife in general for maintenance is an incidence of the status of matrimony and the husband is under an obligation to provide maintenance to her and also to bear the cost of the legal proceedings. There is no dispute that alimony strictly speaking is a maintenance allowance given to a wife by husband and vice versa and the law provides that the wife or husband, as the case may be, having no independent means of subsistence and maintenance is entitled to alimony pending matrimonial proceeding and the expenses incurred in contesting the litigation.

It appears that the learned court below proceeded on the presumption that there is nothing in Section 24 of the Act to prevent a court from taking into consideration the conduct of the parties. Notwithstanding my best efforts I am unable to agree with this proposition. The reason which weighs with me is that claiming maintenance pendente lite and expenses for the litigation is not a proceeding under the Act. The field within which Section 24 of the Act can work is limited and hedged by the condition laid down in the section itself. In other words an application u/s 24 of the Act is an interlocutory application and does not decide the suit itself.

In the instant case the maintenance case for divorce was initially filed on the ground of cruelty and when the petition u/s 24 of the Act was filed by the spouse, the petitioner-husband appears to have resorted to a modus operandi to prevent payment under one pretext or the other and one of the grounds taken was that since the wife had contacted a second marriage, she was not entitled to any maintenance or expenses of the litigation. And when this plea was turned down by the Court he filed another petition assailing that the wife out of her second wedlock had given birth to children and, therefore, this court should constitute a Medical Board to examine the wife. Unfortunately this plea taken by the husband appears to be a brainwave to delay the matter of passing an order on the petition u/s 24 of the Act and the Court unfortunately appears to have fallen to the guiles of the petitioner husband and accordingly passed the impugned order.

The impugned order being adverse to the noble intention behind framing of Section 24 of the Act is hereby set aside.

There is another reason for setting aside the said order. Admittedly the court by its order dated 19.2.2007 had dismissed the plea of the husband petitioner of the wife having contacted a second marriage and thereafter it could not again entertain a second petition for constituting a Medical Board to examine the petitioner herein to come to a finding whether she had given birth to children or not out of the alleged second marriage. The action of the learned trial court in ordering for constitution of a Medical Board to examine the wife is an issue foreign to the object of Section 24 of the Act and the impugned order in no uncertain terms has any nexus on the issue of the claim made u/s 24 of the Act.

For the reasons stated above the revision is allowed and the impugned order is set aside.

While admitting this petition on 4.9.2008 this Court had directed the court below to pass orders on the pending application of the petitioner dated 6.9.2001 u/s 24 of the Act within 60 days of the receipt/production of a copy of this order. It is expected that an appropriate order has been passed by the court below in pursuance of the order of this court. There is no gainsaying that considerable delay has occasioned in the court dilly dallying over the issue unnecessarily.

In the result the revision is allowed and the impugned order is set aside.