Daya Aggarwal vs Sohan Lal

R.S. Narula, C.J.—The order of the Court of Sh. K. L. Wasan, Additional District Judge, Ambala, dated October, 18, 197 3, refusing to allow the Petitioner Rs. 00/- (sic) said to have been spent by her as the medical fee of Mr. Vidya Sagar, of the Medical College, Hospital, Rohtak, and the refusal to grant her the expenses of the application u/s 476 of the Code of Criminal Procedure as well as some amount of maintenance during the pendency of that application in the trial Court after the dismissal in default of the Respondenthusband petition for divorce, has been impugned by the Petitioner who is the wife of Respondent. The application for divorce had been filed by the Respondent on the ground that the Petitioner suffered from insanity. It is stated that on the date fixed for recording the statement of the doctor as a Respondent''s witness to depose about the insanity of the Petitioner, the doctor did not turnup and an arrangement was made whereby it was agreed that the Petitioner may be examine by Dr. Vidya Sagar of the Medical College Hospital, Rohtak, and that if he gave the opinion that the Petitioner was insane, the decree for divorce would be granted, but if he opined to the contrary, the expenses of the doctor would be met with by the Respondent and his petition would also be dismissed.

The father of the Petitioner who has appeared before me as her special attorney admits that the above said arrangement was not reduced to writing, and neither party made any statement in the Court wherein such arrangement might have been incorporated. He asks me to infer from the order sent to Dr. Vidya Sagar to examine the Petitioner that such an arrangement was arrived at because the order refers to an agreement between the parties to refer the case to Dr. Vidya Sagar for his opinion. I am unable to spell out of a mere reference to some agreement the fastening of liability for the payment of the amount on the Respondent. If the Petitioner wanted she could have the said statement recorded in Court. In any case even if such an agreement was there, the Petitioner would have to take recourse to independent proceedings for the recovery of the same as the mere agreement of the parties even if arrived at in proceedings pending in Court does nut become executable unless the Court passes an order in terms of such an. agreement. It would, therefore, be open to the Petitioner, if so advised to have recourse to ordinary proceedings for the recovery of the amount from the Respondent if she is able to prove any such agreement as has been alleged by her attorney before me .

The impugned order was passed on an application of the Petitioner given to the trial Court u/s 24 of the Hindu Marriage Act. Three-fold prayer was made in the application, namely:-

(i) for directing the Respondent to pay the above-mentioned sum of Rs. 500/- to the Petitioner ;

(ii) for directing the Respondent to pay the arrears of maintenance ordered by the trial Court during the pendency of the main case up to the date of decision of that case ; and

(iii) for the grant of expenses for prosecuting the application u/s 476 of the Code of Criminal Procedurs alonwith maintenance for the period during which the proceedings u/s 476 remained pending in the Court. Relief by way of direction for the payment of arreas of maintenance ordered in the earlier case till its decision was allowed by the learned Additional District Judge. The claim for Rs. 00/- on account of the doctor fee was disallowed on the ground that the doctor''s opinion was a mere plece of evidence which could rebut the plea of insanity taken by the Respondent in the case. The Petitioner''s attorney has submitted that the Respondent not having led any evidence on the plea of insanity of the Petitioner, there could be no question of the Petitioner producing any evidence in rebuttal. Be that as it may, the parties agreed to obtain the opinion of Dr. Vidya Sagar by which they agreed to be bound. The agreement regarding payment of the fee of the doctor not having been reduced to writing on the record of the main case, it is not possible to give any direction for payment of the same in the present proceedings. Even otherwise lump su amount had been fixed by the trial Court for expenses of litigation u/s 24 of the Hindu Marriage Act. The amount fixed by the trial Court in those proceeding was irrespective of the actual expenses that might be incurred by the Petitioner during the course of the suit for divorce. The liability to pay the sum of Rs. 500/- could not in any case arise u/s 24 of the Act. In these Circumstances I have no reason to interfere with and disturb the order of the learned Addition I District Judge in regard to that amount.

The Petitioner''s attorney has then argued that the proceedings u/s 476 of the Code of Criminal Procedure can be started even after the disposal of the main case and an application under that provision being an application for passing an interlocutory order, the expenses incurred in filing and prosecuting that application should be made a part of the order u/s 24 of the Hindu Marriage Act, and the Petitioner is entitled to receive monthly amount for her maintenance during the pendency of that application. He has relied in that connection on the judgment of the Patna High Court in Surya Narain Prasad Vs. Surya Man Jha and Others, Ail that was held in that case was that where an application u/s 476 is made to a civil Court for prosecuting the plaintifif tor an offence of perjury, the Court has jurisdiction while dismissing the application to award costs u/s 35 of the Code of Civil Procedure, and that such cost are incidental to the suit in which the Petitioner was the Defendant, being the costs of an interlocutory application made to the Court after the suit was decreed that does not, however, help the Petitioner. No question u/s 24 of the Hindu Marriage Act arose before the Patna High Court. The field within which Section 24 an work is limited and hedged in by the conditions laid down in the section itself. An order under that provision can be made only "in any proceedings under this Act (Hindu Marriage Act)". Even though an application u/s 476 of the Code of Criminal Procedure may be taken as an interlocutory application in proceedings under the act, it is not by itself a proceeding under the Hindu Marriage Act, particulary when the proceedings under that Act had admittedly come to an end before that application was made.Nothing stated in this order may be implied to suggest that an application u/s 476 cannot be made after the deposal of the main case. I am neither called upon to decide any such issu nor am trying to do so. I am assuming that such an application can and has been made after the decision of the main case. Nevertheless the application u/s 476 of the Code of Criminal Procedure is not proceeding "under" the Hindu Marriage Act and Section 24 is not applicable to the same.

Petitioner''s attorney has argued that if the application which could be made either before or after the disposal of the main case had been made by the Petitioner during the pendency of the suit, she would be entitled to both the amounts now claimed by her. Even this inference is misconceived. A lump sum amount allowed to the Petitioner for expenses by the Additional District Judge for the main case included all expenses to be incurred by the Petitioner on interlocutory applications. The Petitioner might have and could have made any number of applications for interlocutory orders during the pendency of the main suit but could not have claimed separate expenses for the same. Similarly if the application had been made during the pendency of the main case and had been disposed of along with the order therein there could have been no question of separate maintenance allowance being paid to the Petitioner in the application u/s 476 of the Code of Criminal Procedure. The monthly amount ordered to be paid to her in the main suit would have covered that also.

For the foregoing reasons I find no force in this petition and dismiss the same leaving the parties to bear their own costs. The parties have been directed