Tarani Kumar Gautam vs The District Judge and Others

Deoki Nandan, J.—This is a husband''s petition for the issue of a writ of certiorari to quash the order dated the 9th April, 1979 of the court of the Civil Judge, Mathura, directing the Petitioner to pay the sum of Rs. 1200/-for litigation expenses and Rs. 1500/- per month as maintenance allowance to his wife on an application 10C made by her u/s 24 of the Hindu Marriage Act in a suit, being Suit No. 15 of 1975 in that court, by the Petitioner for restitution of conjugal rights u/s 9 of the Hindu Marriage Act against his wife who has been impleaded as the third Respondent to the writ petition. The court of the District Judge Mathura, who has been impleaded as the first Respondent, refused, by his order dated the 22nd April, 1980 to entertain an appeal from the aforesaid order, as not maintainable, and also refused the prayer for the conversion of the said appeal into, or hearing it as a revision u/s 115 of the Code of Civil Procedure. That order has also been sought to be quashed. Undaunted, the Petitioner preferred a civil revision u/s 115 of the CPC in the court of the District Judge from the very same order of the court of the Civil Judge, being Civil Revision No. 162 of 1981. Despite the rejection of the appeal as not maintainable and refusal to hear it as a revision, or to allow it to be converted into a civil revision by the District Judge''s order dated the 22nd April, 1980, the Third Additional District Judge, Mathura, appears to have condoned the delay in filing the revision by an order dated the 3rd August, 1981, Under Sections 5 and 14 of the Limitation Act. But the District Judge, Mathura, who ultimately heard the revision, dismissed it by an order dated the 22nd September, 1981, as not maintainable. The Petitioner has sought the quashing of this order also. It is now well settled that u/s 28 of the Hindu Marriage Act, as it now stands amended by the Marriage Laws (Amendment) Act, 1976, an order passed u/s 24 is not appealable. Apart from the decrees passed under the Act which are made appealable under Sub-section (1) of Section 28, only orders passed u/s 25 or Section 26 of the Act have been made appealable by Sub-section (2) of Section 28. It is also well settled by the decisions of this Court that an order u/s 24 is an interim order passed summarily, without deciding the rights of the parties: first, to enable an indigent spouse to prosecute or defend a proceeding under the Act by an order directing the other spouse, if he or she has the means to pay to the indigent spouse the necessary expenses of the proceedings, and secondly to enable the indigent spouse to live through the proceedings by an order directing the other spouse, if he or she has the means, to pay a reasonable sum monthly during the proceedings for the support of the indigent spouse. That being so, it has also been held by this Court that an occasion to interfere on a revision u/s 115 of the Code of Civil Procedure, even where the order suffers from some jurisdictional defect, could arise only if the order, if allowed to stand, would occasion a failure of justice or cause irreparable injury to the party against whom it was made, and such occasions would be rare indeed.

Prima facie, therefore, the procedural hurdles in the way of the Petitioner in this Court appeared at first sight to be insurmountable, but when I looked at the impugned order of the learned Civil Judge and the reasons given, therefore, I felt that it was one of these cases in which a part of the amount of maintenance pendent lite ordered to be paid by the Petitioner-husband to the Respondent-wife could not be supported u/s 24 of the Hindu Marriage Act at all and that part of the order which purported to award maintenance for education expenses of the two daughters of the parties, who were living with the wife, through her, could be based only in Section 26 of the Act, and if that were so, that part of the order was clearly appealable u/s 28(2). The appeal was treated as an appeal from an order u/s 24 simpliciter and rejected as not maintainable. In the result, it could be said that the learned District Judge refused to exercise the jurisdiction which he had of considering the order passed by the learned Civil Judge on the appeal which was filed by the Petitioner. The subsequent attempt by the Petitioner of approaching the learned District Judge u/s 115 of the Code of Civil Procedure, may have been a futile attempt, but the fact remains that the Petitioner could well say that the learned District Judge shut him off and did not hear his appeal on a wrong view of the law about his jurisdiction. In this view of the case, the only remedy available to the Petitioner was to approach this Court under Article 226/227 of the Constitution for correcting the error committed by the learned District Judge by refusing to exercise the jurisdiction of entertaining and hearing the appeal from that part of the order which granted maintenance for educational expenses of the two daughters as part of the maintenance allowed to the wife.

Having once entered upon the exercise of its jurisdiction under Articles 226 or 227 of the Constitution, the only constraints on the powers of this Court to set matters right, are the consideration of justice and fair play, of course, justice in accordance with law and well recognized legal principles.

I could have, in this view of the matter, quashed the two orders of the learned District Judge and directed him to rehear the appeal which was dismissed as not maintainable by his first order dated the 22nd April, 1980. But having perused the impugned order of the learned Civil Judge, and keeping in view the paramount necessity of deciding matrimonial cases as speedily as possible, I thought it desirable, in the interest of justice, to hear counsel on the merits of the matter and to dispose of the summary proceedings u/s 24 so that the main case for restitution of conjugal rights u/s 9 is proceeded with and heard and decided at the earliest, rather than stalled by the kind of dilatory and fruitless proceedings which have been indulged in so far by the parties only to spite each other, aided, of course by ingenuity of counsel from both the sides, of which there appears to have been no dearth.

The wife claimed Rs. 65,000/- in one lump sum and monthly maintenance in the sum of Rs. 4,000/- besides Rs. 250/- for every visit to the court of the Civil Judge, Mathura. This kind of a claim might have been justified as a claim for settlement and/or permanent alimony u/s 25 and Section 26 of the Hindu Marriage Act at the time of, or after the passing of a decree under the Act. The adjudication of such a claim required an adjudication of the rights of the parties on a consideration of the relevant factors prescribed by Sections 25 and 26 for passing orders there under. But on the face of it such a claim was beyond the scope of Section 24 of the Hindu Marriage Act. The first requirement of Section 24 is that the applicant must be one who has no independent income sufficient for her or his support and the necessary expenses of the proceedings. Income sufficient for support means and implies such income as may be necessary, or is just sufficient for support of the applicant''s body, which would mean for satisfying the needs of food, and clothing and, of course, housing. These words cannot take into their import the right of a wife to be maintained by her husband in style and in status which is in keeping with his own, although of course, the standard of needs will vary with status. It may be relevant to note here that, although the law of maintenance does not give a Hindu husband any right to claim maintenance from his wife, Section 24 makes an unusual departure and gives a limited right of support and necessary expenses of the proceedings even to an indigent husband against his wife, in a case where she is not only his better half, but also the better placed of the two. The corresponding right of an indigent wife of support and necessary expenses of the proceedings against her husband, in case he is the better placed financially, could be no different. The second part of Section 24 directs that in such a situation the court may order the opposite-party to the application for maintenance of expenses u/s 24, to pay to the applicant the expenses of proceedings and monthly during the proceedings, such sum as, having regard to the applicant''s own income and the income of the opposite party to the application, it may seem to the court to be reasonable. The expenses of the proceedings, which could thus be awarded, have to be the necessary expenses of the proceedings, and even so only such sum could be awarded as is reasonable having regard to the income of the applicant and the opposite-party. The monthly sum to be awarded has also be such as is necessary to make up the deficiency in the sum needed for the support of the applicant''s body and here too it must be such as seems to the court to be reasonable having regard to the income of the applicant and the opposite-party.

The object and considerations for the settlement and award of permanent alimony u/s 25 are basically different. The rights of the parties, their needs, their means and their status have to be closely analysed in fixing the amount of permanent alimony. Here too, although the Act does speak of a claim by a husband against the wife for permanent alimony, yet in the patriarchal society in which most of us live in this part of the country at least I have yet to come across a claim by a husband against his wife for permanent alimony or maintenance u/s 25 of the Act. I do not know about the matriarchal societies prevalent in the south west or the north east.

When one looks at the impugned order of the learned Civil Judge, the break up of the figure of Rs. 1500/-, which he has given, is as follows:

Rs. 600/- for rent of a house to be hired by the wife, although at present she was living with her brother at Delhi who is a permanent resident of that place.

Rs. 300/- per month for the education of the two daughters.

Rs. 600/- for food and clothing and miscellaneous expenses.

Keeping in view the fact that the order is a summary order only for the duration of the main proceeding, and the further fact that the main proceeding is for restitution of conjugal rights which implies that the question whether the wife has any just cause living separately has still to be adjudicated upon in the main proceedings, and also keeping in view the fact that the wife could not be said to be living uncomfortably or facing any trouble by living with her brother, the award of Rs. 600/- for house rent for a house still to be hired seems to me to be wholly unjustified.

The award of Rs. 300/- for the education of the two daughters cannot be justified u/s 24. The two daughters are grown up. I was informed during the course of the hearing of this case that one of them has even been married very recently. Both the daughters have attained majority. In paragraph 18 of the writ petition, the ages of the two daughters are given as 21 years and 22 years and in reply thereto it has been stated that the daughters are of marriageable age. Even u/s 26, a claim for maintenance could be made only in respect of minor children and not in respect of daughters who are past 21 years of age. The award of Rs. 300/-per month for the education of the two daughters thus appears to be without jurisdiction.

That leaves the monthly sum of Rs. 600/-for the support of the Respondent wife''s body. The income of the husband has been found by the learned Civil Judge to be about Rs. 40,000/- per year. May be that is a rough estimate, but it does give an idea of the status and the means of the husband. I was, under the circumstances, thinking of leaving the figure of maintenance pendente lite allowable to the wife undisturbed at Rs. 600/- per month, but keeping in view the impassioned plea made by Mr. Burman, and the fact that the parties to the proceedings seem to have been to a comfortable way of life, and the further fact that the prices of things have been continuously rising fast, and also on a consideration of all the facts and circumstances of the case, I think the interest of justice would be met if the amount of monthly maintenance pendente lite payable by the husband to the wife is fixed at Rs. 750/-per month, which was the rate at which it had to be paid under the interim order passed by this Court. Mr. Burman then pleaded that the wife was entitled to an order for maintenance since the date of her application. The learned Civil Judge has awarded maintenance pendente lite from the date of the order which is 9th April, 1979. Keeping in view the extravagant claims made by the wife in her application u/s 24 and the fact that the period which has already passed in this fruitless and dilatory litigation cannot be relied, or brought to life again, and the object of an order u/s 24 being not an adjudication of the rights of parties, but the provision of interim support for the indigent spouse, for the duration of the proceedings, I think the interest of justice would be met if the Petitioner is required to pay maintenance pendente lite from the date of the impugned order of the Civil Judge viz., the 9th April, 1979.

In the result, I allow the writ petition and quash the orders of the Respondent District Judge dated the 22nd April, 1980 and the 22nd September 1981, Annexures ''4'' and ''5'' respectively, and in modification of the order of the Respondent Civil Judge dated the 9th April, 1979, Annexure ''3'', direct that in addition to the sum of Rs. 1200/- required to be paid by the husband to the wife for her litigation expenses (in addition to Rs. 100/- per visit said to have been settled by the District Judge''s order dated the 10th September, 1977) the husband shall pay to the wife the sum of Rs 750/- per month as maintenance pendente lite from 9th April, 1979 onwards during the pendency of the husband''s petition for restitution of conjugal rights u/s 9 of the Hindu Marriage Act (Suit No. 15 of 1975) in the court of the Civil Judge, Mathura. In the circumstances I make no order as to costs. The amounts already paid shall of course, be adjusted. The balance in arrears whatever it may be, must be paid within six weeks and the future amount of monthly maintenance must be paid regularly every month by the seventh day of the month following that for which it is due, and all these payments should be made by bank drafts payable directly to the wife at New Delhi and sent to her by registered post acknowledgment due. In case of default it would be open to the trial court to stay the hearing of the main petition until they are paid and to enforce payment by execution of the order as a decree for payment of money by way of maintenance.