Research › Browse › Judgment

Kerala High Court · body

1984 DIGILAW 124 (KER)

NALINI v. VELU

1984-04-11

PARIPOORNAN

body1984
Judgment :- 1. The respondent in MFA. No. 652 of 1983 is the petitioner herein. The sole appellant in MFA. No. 652/83, the respondent in this petition, is the petitioner's husband. This petition is filed by the wife, petitioner, under S.24 of the Hindu Marriage Act, 1955 which is to the following effect: "24. Maintenance pendente hite and expenses of proceedings: 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 proceedings, it may, on the application of the wife or the husband, order the respondent to pay to the petitioner the expenses of 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." The respondent married the petitioner on 20-10-1974 There are two male children in the wed-lock. The parties are Hindus The petitioner is the second wife of the respondent. The respondent herein (husband) filed OP. No. 51 of 1980 under S.9 of the Hindu Marriage Act, 1955 praying for restitution of conjugal rights. The court below found that the respondent treated the petitioner cruelly and as such the petitioner had reasonable excuse to withdraw from the society of her husband. The OP. filed by the respondent-husband was dismissed. He has filed MFA. No 652 of 1983 in this court from the aforesaid decision of the court below. 2. Pending the appeal, CMP. No. 3906 of 1984 was filed by the petitioner (wife) under S.24 of the Hindu Marriage Act, 1955 praying to direct the respondent (husband) to deposit in Court for payment to the petitioner reasonable sum towards maintenance and expenses of the proceedings and to pass appropriate orders. This petition was filed on 3rd February, 1984. In the affidavit filed in support of the petition dated 29th January, 1984 the petitioner has stated that she has no independent income sufficient for her support and that she requires atleast Rs. 200/- per month for maintenance, and that such reasonable sum towards maintenance may be granted, inclusive of the period during which the OP. was pending and also some reasonable amount towards expenses in these proceedings. 200/- per month for maintenance, and that such reasonable sum towards maintenance may be granted, inclusive of the period during which the OP. was pending and also some reasonable amount towards expenses in these proceedings. By order dated 17-2-1984, this court ordered that the respondent should pay a sum of Rs. 200/- per mensem towards maintenance besides a sum of Rs. 500/- towards expenses for the proceedings, within one month. It was also held, that the said direction shall be without prejudice to the right of the petitioner, to claim the arrears of maintenance, eversince the OP. was filed in the lower court. CMP. No. 5939 of 1984 has been filed since then, claiming that the respondent may be directed to pay the petitioner a sum of Rs. 10,100/- or such reasonable amount as this court may deem proper, towards arrears of maintenance and the expenses of the proceedings in the court below. The arrears are claimed from 3-3-1980 till 17-2-1984, the date on which orders were passed in CMP. No. 3909 of 1984, at the rate of Rs. 200/- per mensem, which will be about Rs. 9,600/- and the expenses for contesting the proceedings in the court below, amounting to Rs. 500/- (Total Rs. 10,100/-). The respondent (husband) has filed a counter-affidavit dated 19th March, 1984 The maintainability of such petition as also quantum asked for are disputed. The petitioner has filed a reply-affidavit dated 25th March, 1984. 3. At this stage of the proceedings, when the appeal itself is pending, the question as to whether and if so what amount can be granted to the petitioner by way of arrears of maintenance, etc., can be adjudicated only in a summary way. Courts have expressed divergent views regarding the date from which the court can grant maintenance in exercise of the powers vested under S.24 of the Act. Three different views have been expressed. (1) The maintenance can be granted from the date of the original (main) application. (2) It can be granted from the date when the other spouse was served with notice in the case and (3) maintenance can be granted from the date of filing of the application under S.24 of the Act. The decisions taking the above views are:- (1) The first view-In Samir Banerjee v Sujata, (70 Cal. (2) It can be granted from the date when the other spouse was served with notice in the case and (3) maintenance can be granted from the date of filing of the application under S.24 of the Act. The decisions taking the above views are:- (1) The first view-In Samir Banerjee v Sujata, (70 Cal. Weekly Notes 633 at p. 642) it was held that the court can pass a valid order for arrears of maintenance from the date of the original application though the application for maintenance might be made later. Regarding the second view, the Calcutta High Court in Sobhana Sen v. Amar Kanta Sen (AIR. 1969 Cal. 455) and the Madras High Court in Mahalingam Pillai v. Amsavalli (1956 (2) MLJ. 289) have held that maintenance can be granted after summons was served on the respondent in such cases See, also, the decision of the Mysore High Court in N Subramaniam v. M. G. Saraswathy (AIR. 1964 Mysore 38), wherein it was held that interim maintenance from the date of the receipt of notice of the main petition and upto the termination of the proceedings, can be awarded. The third view is that maintenance can be granted only from k the date of filing of the application. This has been highlighted in Dr. Tarlocan Singh v. Mohinder Kaur (1963) 65 Punjab Law Reporter 19), Nirmala Devi v. Ram Dass (AIR. 1973 Punjab and Hariyana 48). Narendra Kumar v. Suraj Mehta (AIR. 1982 AP. 100) and Dr. Yoginder Pal Soni v. Smt. Padma Soni (Vol. 72 Punjab Law Reporter 878). 4. In Samir Banerjee v. Sujata (70 CWN 633) the Division Bench of the Calcutta High Court took the extreme position and held: "On the provisions of the Act however lam of opinion that there is no warrant for holding that the court cannot pass a valid order for arrear of maintenance from the date of the original application for judicial separation, though the application f or maintenance might be made later. S 24 of the Act does not lay down that the Court's discretion to pass an order for maintenance must be either from the date of the said application under S.24 or any period subsequent thereto. S 24 of the Act does not lay down that the Court's discretion to pass an order for maintenance must be either from the date of the said application under S.24 or any period subsequent thereto. It depends in our view upon the facts and circumstances of each case, having regard to which, the discretion under the said Section is to be exercised." This decision was referred to with approval in Dr. Yoginder v. Smt. Padma (Vol. LXXII-(!970) Punjab Law Reporter 878) but was not dissented. (The actual decision in the case was otherwise). My learned brother Justice Sri. K. Sukumaran in Radhakumari v. K. M. K Nair (1982 KLT. 417) considered the matter and held at page 424 of the reports as follows: "Though in some cases the view is taken that the grant should commence from the date of application under S.24, I am unable to share the view. The section does not contain any limiting provision. The object of the enactment does not justify the court imposing on itself any such fetter, when the Parliament in its wisdom has not chosen to do so. The view taken by the Mysore High Court in N. Subramaniyan v. M.G. Saraswathy and by the Punjab and Haryana Court in Santha Metha v. Aravind Kumar Metha (1978) 8 P.L.R. 213, and the Calcutta High Court in Samir Banerjee v. Sujata Banerjee, 70 C.W.N. 642, according to me, reflects the correct legal position. I would accordingly direct that the payment will be effective from the date of service of summons of the main petition for divorce on the wife." The decisions in Samir Banerjee v. Sujata (70 CWN 642) and Subramaniyam v. Saraswathy (AIR. 1964 Mysore 38) were referred to with approval. It is expressly stated in Samir Banerjee's case (70 CWN 642) that "arrear maintenance" can be directed to be paid. 5. I concur with my brother Justice Sri. K. Sukumaran and hold that, at any rate, there is no legal impediment in directing that maintenance should be paid, to be effective from the date of service of summons of the main petition for restitution of conjugal rights, on the wife. The petitioner was awarded future maintenance at the rate of Rs. 200/- per mensum as per orders of this Court dated 17-2-1984. The petitioner was awarded future maintenance at the rate of Rs. 200/- per mensum as per orders of this Court dated 17-2-1984. She has claimed maintenance at the same rate for the entire period from date of filing of the main petition 3-3-1980 till 17-12-1984. The date on which the summons was served on the wife on the main petition was only 13-3-1980 though the petition was filed on 3-3-1980. As stated earlier, the quantum can be fixed only on the basis of the averments contained in the affidavits filed by the parties in this court. In all the circumstances of the case, and in the light of the facts brought out in the various affidavits filed by the parties, I am of opinion, that a sum of Rs. 100/- per mensem is a fair and reasonable amount to be awarded towards maintenance for the period, 13-3-'80 to 17-2-1984. Accordingly I fix a sum of Rs. 4,700/-towards maintenance for the said period plus a sum of Rs. 500/- towards expenses for contesting the proceedings in the court below, totalling to Rs. 5,200/-. I direct the respondent (husband) to pay the petitioner, towards the arrears of maintenance and expenses of the proceedings in the court below, a sum of Rs 5,200/- which is fair and reasonable. Considering the totality of facts and circumstances of the case it is only proper that I further direct that the respondent (husband) shall pay the said amount of Rs. 5,200/-in 15 (fifteen) equal consecutive monthly instalments, beginning from May 1984- on the 10th of every month, the first instalment to commence from 10th May, 1984 payable on or before the said date If any one of the instalment is not paid on the due date, the entire sum due by way of arrears fixed above, will be recoverable in lump. Ordered accordingly.