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Madhya Pradesh High Court · body

1986 DIGILAW 26 (MP)

TRIPTA CHHABRA v. AJIT KUMAR CHHABRA

1986-01-31

B.C.VARMA

body1986
JUDGMENT : ( 1. ) BY the impugned order which was passed during the proceedings under section 12 of the Hindu Marriage Act, 1955 on an application made by the petitioner under Section 24 of that Act, the lower Court has fixed Rs. 150/-per month as maintenance to be paid to the applicant from 26-9-1983. Some amount has also been awarded to meet the expenses of the proceedings. The grievance of the petitioner here is that the order granting this maintenance should have been made effective either from the date of making of the application or from 8-6-1982 when the respondent was served with the notice of the main petition under Section 12 of the Act. ( 2. ) SECTION 24 of the Hindu Marriage Act is as follows :- 24. Maintenance pendente lite 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 the proceeding, and monthly during the proceeding such sum as, having regard to the petitioners own income and the income of the respondent, it may seem to the Court to be reasonable. It is clear from the text of this section that it is silent as to the time and date from which an order under the section is to be made effective. Although it says that such an order can be made during the proceedings under the Act and also prescribes the consideration on which such an order is to be founded. To that section, however, is appended a heading. This heading gives an indication that the maintenance may be granted pendente lite. It shows that the Court has been given power under that section to award maintenance pendente lite as also expenses of proceedings. According to maxwell, the Heading prefixed to section or sets of sections in some modern statutes are recorded as preambles to those sections. They cannot control the plain words of the statutes but they may explain ambiguous words. It shows that the Court has been given power under that section to award maintenance pendente lite as also expenses of proceedings. According to maxwell, the Heading prefixed to section or sets of sections in some modern statutes are recorded as preambles to those sections. They cannot control the plain words of the statutes but they may explain ambiguous words. This passage was relied upon by the supreme Court in Bhinka vs. Charan Singh, AIR 1959 SC 960 , while interpreting section 180 of the U. P. Tenancy Act, 1939. Section 180 of the U. P. Tenancy Act. provided for ejectment of a person who retained possession of land otherwise than in accordance with the provisions of law for the time being in force. The question before the Supreme Court was whether the person retaining possession by force of an order under Section 125, Criminal Procedure Code, could be said to be a person in possession otherwise than in accordance with the provisions of the law for the time being in force. The Supreme Court referred to the heading of that section in order to interpret that provision. The heading read "ejectment of person occupying land without title. " It was, therefore, held that in view of this heading the expression possession in accordance with law for the time being in force should mean possession with title. Here section 24 of the Act, as I have pointed out earlier, does not speak of any specific date of the commencement of an order passed under that section. Resort, therefore, can be had to the heading of that section and it can well be held with its assistance that the Court has jurisdiction to award maintenance pendente lite. A litigation is said to be pending from the date it commences and ends with the final result of proceedings. A Division Bench of this Court in Misc. First Appeal No. 207/72 decided on 10-7-1974 (Jabalpur) (Smt. Shobhna vs. Sharadshridhar) observed that the expression pendente litemeans from the date of institution of the lis to the date of its termination. Here the lis must be held to have commenced from the date of filing of the petition under Section 12 of the Act before the lower Court and would end with the final order/decision of that application. Here the lis must be held to have commenced from the date of filing of the petition under Section 12 of the Act before the lower Court and would end with the final order/decision of that application. I am, therefore, of opinion that a Court dealing with an application under Section 24 of the Act is entitled to pass an order granting maintenance under Section 24 of the Act from the date of filing of the main petition in which that application is made. Shri gothalwal, learned counsel for the respondent brought to my notice a decision in Puran chand vs. Mst. Kamla Devi, AIR 1981 Jandk 5. According to that decision, the proceedings under Hindu Marriage Act shall commence before the trial Court from the date on which issues are framed. With great respect to the learned Acting Chief Justice who decided that case, I am unable to agree with that view. In my opinion the proceedings under the Hindu Marriage Act would commence from the date a petition is filed before a Court for any of the reliefs provided under the Act. ( 3. ) IT is no doubt true that it is the discretion of a trial Court to pass an order under section 24 of the Act and to make it effective from a particular date. It has been rightly pointed out in Smt. Sumita vs. Ganesh, C. R. No. 814/80 decided on 24-2-1982 (Jabalpur), that there is no such inviolable rule of law that maintenance must be allowed from the date of the application made by a party under Section 24 of the Act. The decided cases, however, show that such maintenance is allowed either from the date of the making of the application under Section 24 of the Act or even from the date of service of notice of the main petition upon the other party. In Smt. Sobhna Sen vs. Amar kanta Sen, AIR 1959 Cal. 455 , maintenance under Section 24 of the Act was granted from the date of service of notice. It was held by the Division Bench that the District judge who awarded the maintenance from the date of an application because of the delay in making application acted arbitrarily. In N. Subramanyam vs. Mrs. 455 , maintenance under Section 24 of the Act was granted from the date of service of notice. It was held by the Division Bench that the District judge who awarded the maintenance from the date of an application because of the delay in making application acted arbitrarily. In N. Subramanyam vs. Mrs. M. G. Saraswathi, AIR 1964 Mysore 38, a Division Bench of the Mysore High Court held that under Section 24 of the Act, the Court has power to grant interim maintenance for the entire duration of the proceedings, and that there is no warrant for limiting its commencement to the date on which the application for grant of maintenance was made. There also maintenance was awarded from the date of service of the main petition. ( 4. ) IN the instant case, the lower Court has directed payment of this interim maintenance from the date of making of the order i. e. from 29-9-1983. No reason, however, has been assigned for so doing and the date of commencement of the order appears to be fixed arbitrarily. The narration of facts by the lower Court, however, indicates that the applicant was in service upto September, 1982. Therefore, she did not serve and had no independent source of income. It shall, therefore, be just under the circumstances of this case to grant to her the interim maintenance under Section 24 of the Act from October 1982. This is so because it is only from this period that she can be said to have no independent income sufficient for her support. ( 5. ) FOR the aforesaid reasons, the petition succeeds and is allowed to the extent that the impugned order directing payment of interim alimony/maintenance at the rate of Rs. 150/- per month from 26-9-1983 i. e. from the date of the order of the lower Court is made enforceable from October 1,1982. Under these circumstances the parties are directed to bear their own costs. Petition allowed.