Mahabir Prasad Jain v. Pushpa Mala — 1970 DIGILAW 430 (ALL)

ORDER D.D. Seth, J. - This is an application Under Order 47, Rule 1 read with Section 151, CPC and it is prayed that the order passed by me on 22-9-1970, be reviewed. 2. The application has arisen out of the following circumstances: Sri Mahabir Prasad Jain filed a petition u/s 10 of tile Hindu Marriage Act for judicial separation from his wife, Smt. Pushpa Mala, on the ground of desertion by the lady. The learned 2nd Civil Judge, Meerut, allowed Mahabir Prasad's petition and granted a decree for judicial separation. In appeal by Smt. Pushpa Mala, the owner appellate court reversed the judgment and decree of the trial court and disrtiissed the petition for judicial separation and against that order, Mahabir Prasad Jain preferred a second appeal in this Court, which is numbered as S.A. No. 709 of 1967. By an application dated 26-8-1970 filed by Smt. Pushpa Mala u/s 24 of the Hindu Marriage Act and Section 151, Code of Civil Procedure, it was prayed that Mahabir Prasad Jain be directed to pay Rs. 75 per month towards the maintenance of the lady and also be directed to pay a sum of Rs. 750 towards the expenses of the present proceedings. A copy of the application filed by Smt. Pushpa Mala was served on Sri K.C. Agarwal, the learned Counsel appearing for Mahabir Prasad Jain, on 21-8-1970. The application of Smt. Pushpa Mala was heard by me on 22-9-1970 and after heating Shri K.N. Seth, learned Counsel appearing for Smt. Pushpa Mala and Sri Bhupeshwar Dayal, holding the brief of Sri K.C. Agarwal, learned Counsel for Mahabir Prasad Jain, I allowed the application and directed Mahabir Prasad Jain to pay an amount of Rs. 60 per month to Smt. Pushpa Mala towards her maintenance from the date of the filing of the present second appeal in this Court and further directed him to pay a sum of Rs. 500 towards the expenses of the present litigation. I further directed Mahabir Prasad Jain to pay an amount of Rs. 60 per month as maintenance to Smt. Pushpa Mala for the month of October, 1970, by 7-10-1970 and further directed him to continue to pay the monthly allowance by the 7 th of each month and the amount of Rs. 500 to be paid to her by Mahabir Prasad Jain within a period of two months. 60 per month as maintenance to Smt. Pushpa Mala for the month of October, 1970, by 7-10-1970 and further directed him to continue to pay the monthly allowance by the 7 th of each month and the amount of Rs. 500 to be paid to her by Mahabir Prasad Jain within a period of two months. At the time when I decided the application of Smt. Pushpa Mala, Sri K.N. Seth, appearing for her, stated before me that his client will not claim maintenance u/s 488, Code of Criminal Procedure for that period. Now, an application has been filed by Sii K.C. Agarwal, learned Counsel for Mahabir Prasad Jain, praying that the order passed by me on 22-9-1970, be_ reviewed and the review application be allowed. 3. I have heard Sri K.C. Agarwal, learned Counsel for the Applicant in the review application and Sri K.N. Seth, learned Counsel appearing for Smt. Pushpa Mala. Sri K.C. Agarwal submitted that this Court had no jurisdiction to direct Mahabir Prasad Jain to make the payment of the maintenance allowance to Smt. Pushpa Mala at the rate of Rs. 60 per month, calculated from the date of the filing of the appeal. According to the learned Counsel, Section 24 of the Hindu Marriage Act empowers the court to make an order of maintenance only from the date of an application for payment of the maintenance allowance. 4. Section 24 of the Hindu Marriage Act deals with maintenance, pendente lite and expenses of proceedings and reads as follows: 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 sum as, having regard to the Petitioner's own income and the income of the Respondent, it may seem to the Court to be reasonable. 5. 5. u/s 28 of the Hindu Marriage Act, all decrees and orders, made by the Court in any proceeding under the Act shall be enforced in like manner as the decree and orders of the Court made in the exercise of its original civil jurisdiction are enforced and may be appealed from under any law for the time being in force, provided that there shall be no appeal on the subject of costs only. 6. In Section 24 of the Hindu Marriage Act, which has been quoted above, the word "proceeding" and the words "during the proceeding" are very relevant. As the section itself shows the proceeding contemplated u/s 24 of the Act are proceeding under that Act, the application filed by Sri Mahabir Prasad Jain u/s 10 of the Act was a proceeding under the Act. Section 24 of the Act further shows that the court has the discretion in awarding maintenance on an application being filed under that section. The words "during the proceeding" make it clear that the maintenance allowance is to be allowed u/s 24 of the Act during the proceeding under the Act and it cannot be said that the present appeal, which is pending in this Court, is not a proceeding under the Act and hence the maintenance allowance could be allowed to Smt. Pushpa Mala from the date of filing of the appeal and not from the date of the filing of the application for maintenance, as contended by Sri K.C. Agarwal. Sri K.C. Agarwal in support of his contention placed reliance on a decision of a division Bench of the Calcutta High Court in Smt. Sobhana Sen Vs. Amar Kanta Sen, AIR 1959 Cal 455 , in which it was held by the learned Judges of the Calcutta High Court as follows: As already indicated, the learned Judge has ordered that the payment of the maintenance would be with effect from 1-5-1956. The well-known rule is that maintenance in such cases is allowed by the court from the date of service of notice. 7. Sri K.C. Agarwal relying on the above decision contended that maintenance could be allowed to Smt. Pushpa Mala only from the date of the service of notice of the appeal, which was sometime in the year 1970. The well-known rule is that maintenance in such cases is allowed by the court from the date of service of notice. 7. Sri K.C. Agarwal relying on the above decision contended that maintenance could be allowed to Smt. Pushpa Mala only from the date of the service of notice of the appeal, which was sometime in the year 1970. With great respect to the learned Judges of the Calcutta High Court, I do not agree with the observations of the learned Judges in Smt. Sobhana Sen's case. The decision of the Calcutta High Court, which has been relied upon by Sri K. C. Agarwal does not discuss the importance of words "during the proceeding" occurring in Section 24 of the Act. 8. Sri K.C. Agarwal further placed reliance on the decision of a learned Single Judge of the Rajasthan High Court in Mst. Mukan Kanwar Vs. Ajit Chand, AIR 1961 Raj 51 , in which it was held as follows: An order for temporary alimony passed by the superior Court u/s 24 pending the suit by the wife in the trial Court enures during the life of the suit in the trial Court only and cannot survive it. If the wife files an appeal against the decision of the trial Court in the suit against her she must file an independent application for the grant of the relief of alimony which she seeks during the pendency of the appeal. Such an application is maintainable u/s 24 read with Section 107 Code of Civil Procedure. 9. The decision of Mst. Mukan Kanwar's case also does not discuss the importance of words "during the proceeding" occurring in Section 24 of the Act and in my opinion, the case of the" Rajasthan High Court relied upon by Sri K.C. Agarwal does not help him in any way. 10. Sri K.C. Agarwal also placed reliance on the decision of a learned tingle Judge of the Punjab High Court in Dr. Tarlochan Singh Vs. Smt. Mohinder Kaur, AIR 1963 P&H 249 , in which the learned Judge held as follows: The proceedings of which the expenses are to be allowed by the Court u/s 24 of the Hindu Marriage Act are the proceedings in the trial court only and not of the proceedings on appeal. Tarlochan Singh Vs. Smt. Mohinder Kaur, AIR 1963 P&H 249 , in which the learned Judge held as follows: The proceedings of which the expenses are to be allowed by the Court u/s 24 of the Hindu Marriage Act are the proceedings in the trial court only and not of the proceedings on appeal. The sum payable by way of maintenance pendente lite would similarly relate to and be confined to the proceedings in trial court. In so far as the appellate proceedings, in the event of an appeal, are concerned, it is open to the wife to apply to the High Court u/s 24 read with Section 21 of the Act and Section 107, Code of Civil Procedure. 11. In Tarlochan Singh's case also, there is no discussion of the relevant words of Section 24 of the Act and I do not find myself able to agree with the contention of Sri K.C. Agarwal that this Court has no jurisdiction, u/s 24 of the Act, to allow maintenance to the wife from the date of the filing of the appeal ' As I read Section 24 of the Act. I do not find any bar to this Court allowing, on an application of the wife or the husband, maintenance allowance during the proceeding and it must be held that the words "during the proceedings" mean the proceeding arising out of the Act and pending in this Court. If the intention of the legislature had been that the wife or the husband was to be allowed maintenance allowance from the date of the service of the notice of the appeal, it was open to the legislature to have said so in Section 24 of the Act. I, therefore, do not agree with Sri K.C. Agarwals contention and I do not find any force in them. 12. D.F. Mulla in his "Principles of Hindu Law" (1959 Edn.), while commenting on Section 24 of the Hindu Marriage Act, observed as follows: The amplest discretion is conferred on the court and an order for maintenance pendente lite and costs of the proceeding, as the initial words of the section clearly state, can be made in any proceeding under the Act. It is further observed by Mulla that: The section is explicit that the making of the order is a matter of discretion with the court. It is further observed by Mulla that: The section is explicit that the making of the order is a matter of discretion with the court. Mulla further observes as follows: The court exercises a wide discretion in the matter of granting alimony pendente lite but the discretion is judicial and not arbitrary or capricious. It is to be guided on sound principles of matrimonial law and to be exercised within the ambit of the provisions of the section and having regard to the object of he Act. 13. For the reasons, mentioned above, I do not find any force in the review application and dismiss the same with costs.