Smt. Neera Jain vs Diwakar

On 24-3-1986 Hon''ble A.P. Misra, J. referred the following question for decision of a larger Bench:

Whether u/s 24 of the Hindu Marriage Act, 1955, payment to the Petitioner of the expenses of the proceeding would also include, or not, the proceeding for transfer in the Supreme Court of a proceeding of divorce initiated under this Act instituted in the Delhi Court?

In consequence, this Bench has been constituted by the Hon''ble the Chief Justice.

For appreciating the controversy involved behind the question referred, the facts very briefly be stated.

Diwakar, who is the husband of Smt. Neera Jain, filed an application u/s 13 of the Hindu Marriage Act for divorce. The application was filed at Delhi. Smt. Neera Jain was a resident of Kanpur. Consequently, she applied in the Supreme Court for transfer of the case pending at Delhi to some other place in Uttar Pradesh. The application was allowed by the Supreme Court by passing the order, mentioned below:

By consent of parties, we allow the transfer petition and direct that Matrimonial Case Petition No. 576 of 1986: Diwakar v. Neera Jain pending before the learned Additional District Judge, Delhi shall stand transferred to the court of the learned District Judge, Muzaffarnagar, who may either try the case himself or assign it to some other court of competent jurisdiction.

Thereafter the proceedings started in the court of Additional District Judge, Muzaffarnagar. Before him the application filed by Smt. Neera Jain u/s 24 of the Hindu Marriage Act came up for consideration. She claimed that she was entitled to get the expenses incurred by her in filing the transfer application before the Supreme Court u/s 24 of the Hindu Marriage Act. Section 24 of the Hindu Marriage Act recites:

Where in any proceeding under this Act it appears to the Court that either the wife or the husband, as the case may be, has no independent income sufficient for her or his support and the necessary expenses of the proceeding, it may, on the application of the wife or the husband, order the Respondent to pay to the Petitioner the expenses of the proceeding, and monthly during the proceeding such sura as, having regard to the Petitioners own income and the income of the Respondent, it may seem to the court to be reasonable.

u/s 24 of the Act what is allowable is the ''expenses of the proceeding''. The proceeding spoken of in Section 24 of the Act does not cover the expenses incurred in prosecution of a transfer application inasmuch as that is not under the Hindu Marriage Act. A transfer application does not arise out of any proceeding contemplated by the Hindu Marriage Act.

For the view taken, we find support from the decision reported in Smt. Rachna Sharma v. Chandra Mohan Sharma 1984 AWC 462.

On behalf of the opposite party reliance was placed on Section 21 of the Hindu Marriage Act which applies to the CPC to different proceedings contemplated by the Hindu Marriage Act. A transfer application moved does not become a proceeding arising out of the Act. By applying the procedure of the Code, the transfer application moved u/s 24 or 25, does not become a proceeding under the Act.

Reliance was placed by the Respondent''s counsel on a decision in Surendra Kumar Asthana Vs. Smt. Kamlesh Asthana, . In that case a revision was filed u/s 115 of the CPC against the order of the Civil Judge. The substantial point in the revision was about the holding that he would decide the application u/s 24 before the question of jurisdiction has been taken up. Against this order the husband filed the revision in the High Court. In the High Court the claim for litigation expenses was made. The same was allowed on the basis that even where a question of jurisdiction is raised, the court has power to grant relief u/s 24 of the Hindu Marriage Act, provided that on the averments made in the petition, the petition is maintainable. This case is distinguishable inasmuch as the proceeding brought to this Court was a matter falling within the scope of Section 24 of the Hindu Marriage Act.

It may be noteworthy that the Supreme Court did not allow any expenses in the transfer application.

In the result, the question referred to us is answered in the negative and it is held that the wife was not entitled to expenses of the proceeding incurred by her before the Supreme Court.

Let the papers be laid before Hon''ble A.P. Misra, J. with the above answer.