Indira Gangele vs Shailendra Kumar Gangele

B.M. Lal, J.

This revision raises a short question about the date of payment of maintenance pendente lite granted by the Matrimonial Court to the Respondent indigent spouse, in the exercise of its jurisdiction u/s 24 of the Hindu Marriage Act, 1955, (hereinafter referred to as the ''Act''), i.e. from the date of the institution of the suit proceedings, date of application made u/s 24 of the Act or from the date of order passed by the Court directing payment of maintenance pendente lite to the Respondent.

The short facts leading to this revision are as under:

The non-applicant in this revision petition Shailendra Kumar Gangele brought an action against the Petitioner Smt. Indira Gangele, his wife, u/s 13 of the Act for seeking a decree of annuling the marriage.

Smt. Indira Gangele, it appears that after receiving the writ of summons of the suit on 26-11-1986, filed on application u/s 24 of the Act claiming maintenance pendente lite and expenses of the suit proceedings. The said application has been adjudicated by the learned Matrimonial Court, Satna, by order dated 4-8-1987, directing Shailendra Kumar Gangele to pay Rs. 200/- p.m. as maintenance pendente lite and Rs. 500/- towards expenses of the litigation.

It appears that subsequent to this order an application u/s 151, CPC Code, was made by the wife for modification of the order dated 4-8-1987 to the extent that the said order be made operative from the date on which the application claiming maintenance pendente lite was filed i.e. 26-11-1986.

However, by the impugned order dated 6-10-1987 while repelling the submission of the wife order for granting maintenance pendente lite was made operative from the date of the order i.e. 4-8-1987, against which this revision is filed.

No doubt, there is no specific provision in Section 24 of the Act relating to the issuance of such direction in fixing the point of time from which date maintenance pendente lite be made operative i.e. either from the date of application, from the date of order or from the date of institution of the suit. It, however, leaves to the discretion of the Court.

A bare look to the provision of Section 24 of the Act demonstrates that it has been enacted exclusively for the benefit of the poor spouse who is unable to maintain and contest the case. Therefore, it is always for such a poor spouse to avail this statutory benefit.

Here it will not be out of point to state that provisions of Section 24 of the Act apply to both, the wife or the husband, as the case may be, provided the spouse has no independent income sufficient to support and meet the necessary expenses of the poceedings. This being so, application u/s 24 of the Act may be filed along with the suit by the plaintff or even subsequently therefrom by the Plaintiff. Similarly, the Defendant may also avail of this provision by making application.

Spouse who is claming decree in his/her favour, if by some reason or the other, could not file such application along with the suit, may file application subsequently claiming maintenance pendente lite from the date of institution of the suit and the court in its discretion may grant maintenance pendente lite payable from the date of the institution of the suit. But, the Respondent cannot enjoy the same benefit claiming maintenance pendente lite from the date of institution of the suit. However, in the exercise of judicial discretion, court may grant maintenance pendente lite in favour of the Respondent from the date of his/her first appearance in the suit, if prayer is made specifically to this effect in the application or from the date of the application.

Therefore, normally the point of time for granting maintenance pendente lite would be from the date of application. But, if specific prayer is made in the application, then the order may be made operative in consonance with the prayer made in the application i.e. either from the institution of the suit in favour of the Plaintiff or first appearance made by the Respondent.

However, it is expected of the Matrimonial Court to decide such application on priority basis at its earlier opportunity on the basis of the affidavits and counter affidavits as far as possible so as to cut short the time. However, exception to above rule cannot be ignored where parties found guilty of protracting the proceedings by any manner and delay caused in deciding application on account of such a party, in such a case court can certainly order for payment of maintenance amount from the date of order.

However, where the application is kept pending and the party making application is not responsible for protracting the proceedings, in such cases court has to bear in mind two maxims of equity which are well settled, namely, "actus curiae neminem gravabit", an act of the Court shall prejudice noone. In Broom''s Legal Maxims, 10th ediion, 1939 at page 73 this maxim is explained that this maxim was founded upon justice and good sense; and afforded a safe and certain guide for the administration of the law. The above maxim should, however, be applied with caution. The other maxim is "fiat justitia", justice be done and that justice should be fair causing prejudice to noone.

Applying the above test to the facts of the instant case, nothing has been brought on record to suggest that Smt. Indira Gangele, wife of the non-applicant Shailendra Kumar Gangele, in any manner is responsibe or protracting the proceedings. This being so, in the opinion of this Court, she cannot be deprived of her right for getting maintenance from the date of application i.e. 26-11-1986.

From the aforesaid discussion, the order impugned dated 6-10-1987 is set aside and the order dated 4-8-1987 is modified to the effect that payment of maintenance pendete lite shall be operative from the date of application i.e. 26-11-1986.

The revision is, thus, allowed. No order as to costs since no appearance is made by the respective counsel.