MANAB ALIAS MANABENDRA BARMAN v. SUVADRA ALIAS SWATI BURMAN
1990-01-12
HARIDAS DAS, SHAMSUDDIN AHMED
body1990
DigiLaw.ai
HARIDAS DAS, J. ( 1 ) THIS civil revisional application by the petitioner is directed against an order dated April 1, 1989 passed by the learned Assistant District Judge, Second Court, Alipore 24-Parganas in Misc. Case No. 38 of 1985 directing the petitioner to pay interim maintenance for his wife and minor daughter who are opposite parties Nos. 1 and 2 herein. ( 2 ) BRIEFLY stated, the relevant facts are as follows : the opposite party No. 1 is the wife of the petitioner. The opposite party No. 2 is their minor daughter born out of the wed lock. Sometime in June 1985, the opposite parties Nos. 1 and 2 presented the plaint of an intended suit under Sections 18 and 20 of the Hindu Adoptions and Maintenance Act, 1956 (hereinafter referred to as the Act) against the petitioner and others for maintenance and other reliefs along with an application under Order 33 Rule 1 of the Code of Civil Procedure (for short the Code) praying for permission to sue in forma pauperis. The application under Order 33 Rule 1 of the Code was registered as Misc. Case No. 38 of 1985. The petitioner who is the opposite party No. 1 in the Misc. case filed a written objection against the prayer to sue in forma pauperis. That Misc. case is yet pending and the plaint has not yet been registered as a suit. On June 5, 1985 the opposite parties Nos. 1 and 2 herein made an application under Section 151 of the Code praying for maintenance pendente lite in the said Misc. Case No. 38 of 1985. No written objection was filed by the petitioner against such claim for interim maintenance. ( 3 ) THE petitioner instituted Matrimonial Suit No. 158 of 1987 which was renumbered as Matrimonial Suit No. 13 of 1988 against his wife, the opposite party No. 1 for divorce. In that matrimonial Suit, the opposite party No. 1 filed an application under Section 24 of the Hindu Marriage Act, 1955 claiming alimony pendente lite both for herself and for the minor daughter. By an order dated April 26, 1988 passed in the said Matrimonial Suit, the learned Additional District Judge, 8th Court, Alipore directed the petitioner to pay Rs. 200/- per month as alimony pendente lite for the petitioner and the minor daughter till the disposal of the Matrimonial Suit.
By an order dated April 26, 1988 passed in the said Matrimonial Suit, the learned Additional District Judge, 8th Court, Alipore directed the petitioner to pay Rs. 200/- per month as alimony pendente lite for the petitioner and the minor daughter till the disposal of the Matrimonial Suit. It is alleged by the petitioner that the amount of alimony referred to above is being regularly paid by him. ( 4 ) BY this order dated April 1, 1989 the learned trial Judge disposed of the application under Section 151 of the Code filed by the opposite parties Nos. 1 and 2 herein in the aforesaid Misc. Case No. 38 of 1985. By the said order which is under challenge, the learned trial Judge granted ad interim maintenance at the rate of Rs. 250/- per months for each of the opposite parties Nos. 1 and 2 subject to the conditions that under no circumstances the total maintenance on such basis including any other maintenance awarded in other proceedings shall exceed Rs. 500/- per month for both until further orders for enhancement of such rate, if warranted. The learned trial Judge further directed that the orders so made shall continue depending on the fate of the proceedings in the Misc. Case. The learned trial Judge directed the petitioner to pay and remit to the opposite party No. 1 direct by money order or deposit in Court a sum of Rs. 22,500/- being the arrears of maintenance from June 5, 1985 till February 1989 with a direction that it would be open to the petitioner to pay for instalments to pay such arrears if he found it difficult to pay the above arrears at a time. The learned trial Judge further directed the petitioner to pay to the opposite party No. 1 or deposit in Court maintenance from March 1989, month by month, as indicated above such maintenance for each month being payable by the 15th of the succeeding month. ( 5 ) MR.
The learned trial Judge further directed the petitioner to pay to the opposite party No. 1 or deposit in Court maintenance from March 1989, month by month, as indicated above such maintenance for each month being payable by the 15th of the succeeding month. ( 5 ) MR. Dilip Kumar Mondal, the learned Advocate appearing for the petitioner has contended, that as the application of the opposite party No. I to sue in forma pauperis is pending and no leave to sue in forma pauperis has been granted to her as yet and as the plaint of the intended suit has not yet been registered as a suit, the application under Section 151 of the Code is not maintainable. ( 6 ) MR. Dilip Seth, the learned Advocate appearing for the opposite parties Nos. 1 and 2, on the other hand, submits that such an application for maintenance pendente lite is maintainable and in support of his contention he has relied upon the decision, Jyoti Prakash v. Chameli. In the said case during the pendency of an application under Order 33 praying for leave to sue in forma pauperis for an intended suit under Sections 18 and 20 of the Act, an application was made for maintenance pendente lite. A Division Bench of this Court held in that case that the suit commences from the moment an application is made to sue in forma pauperis and that, therefore, an application for maintenance pendente lite is maintainable during the pendency of the application for leave to sue in forma pauperis. We respectfully agree with the decision referred to above and, accordingly, the contention made by Mr. Mondal that the application for maintenance pendente lite is not maintainable cannot be sustained. ( 7 ) MR. Mondal has next submitted that there is no provision in the Act for grant of maintenance pendente lite. It is pointed out by Mr. Mondal that Section 24 of the Hindu Marriage Act, 1955 expressly provides for maintenance pendente lite. It is submitted that since there is no express provision for grant of maintenance pendente lite in the Act, the application under Section 151 of the Code is not maintainable and as such there is no scope for grant of maintenance pendente lite under the provision of the Act. Mr. Mondal has further submitted that since maintenance pendente lite was already granted for the opposite parties Nos.
Mr. Mondal has further submitted that since maintenance pendente lite was already granted for the opposite parties Nos. 1 and 2 on an application made by the opposite party Nos. 1 and 2 on an application made by the opposite party No. 1 under Section 24 of the Hindu Marriage Act, 1956 in the Matrimonial Suit filed by the petitioner for divorce, the instant application under Section 151 of the Code for maintenance pendente lite under the provision of the Act is not maintainable. The contentions made by Mr. Mondal are untenable. In the decision already referred to, it has been held that the right to interim maintenance is a part of the right conferred by Section 18 and Section 20 of the Act and the right to interim maintenance can be enforced by an application in aid of the suit and an order can be validly made by the Court on such an application in exercise of its inherent power which has been saved by Section 151 of the Code. In the decisions Gouri Gupta v. Tarani Gupta, Nemal Chand Jain v. Lila Jain, Tarani Gupta v. Gouri Gupta this court has taken the consistent view that the Court has power to grant maintenance pendente lite in a suit for maintenance under Section 18 of the Act. In our view, the Court in the exercise of its inherent power under Section 151 of the Code, can in appropriate case grant maintenance pendente lite in a suit under Sections 18 and 20 of the Act even though there is no express provision in that behalf in the Act. ( 8 ) THE right to get maintenance by the wife and the child respectively under Sections 18 and 20 of the Act are legal rights given by the Act and such right, in our view, is not in any way affected by any order granting maintenance pendente lite under Section 24 of the Hindu Marriage Act in a pending Matrimonial Suit, though while granting maintenance under Sections 18 and 20. of the Act any other maintenance granted to the party has to be taken into consideration.
of the Act any other maintenance granted to the party has to be taken into consideration. ( 9 ) WE are, therefore, of the view, that the existing order granting maintenance under Section 24 of the Hindu Marriage Act does not operate as a bar to granting further maintenance pendente lite in a suit under Sections 18 and 20 of the Act on the basis of an application under Section 151 of the Code. ( 10 ) MR. Mondal has next contended that the learned trial Judge was not justified in granting arrear maintenance. It appears that the opposite parties Nos. 1 and 2 made the application under Section 151 of the Code on June 5, 1985 in the pending Misc. Case No. 38 of 1985 praying for maintenance pendente iite. The learned trial Judge directed the petitioner to pay Rs. 22,500/- as maintenance pendente lite commencing from June 5, 1985, that is from the date when the application for maintenance pendente lite was filed. There is, therefore, no force in the contention made by Mr. Mondal. ( 11 ) MR. Mondal has lastly submitted that in determining the amount of maintenance pendente lite, the learned trial Judge did not take into consideration the provisions contained in Section 23 of the Act. It is submitted that no evidence was taken by the learned trial Judge to consider the position and status of the parties, the reasonable want of the opposite parties Nos. 1 and 2 and the capability of the petitioner to pay such amount. It does not appear that any of the parties intended to tender evidence at the time of hearing of the application under Section 151 of the Code. There is nothing to show that the opposite party No. 1 had any regular source of income to maintain her and her minor child. The learned trial Judge directed the petitioner to pay maintenance pendente lite at the rate of Rs. 250/- per month for each of the opposite party Nos. 1 and 2 less the amount of maintenance pendente lite granted under Section 24 of the Hindu Marriage Act. In our view, the amount as has been ordered to be paid by the petitioner is the barest inimum for the maintenance of the wife and the minor child and such amount cannot in any sense be said to be excessive.
1 and 2 less the amount of maintenance pendente lite granted under Section 24 of the Hindu Marriage Act. In our view, the amount as has been ordered to be paid by the petitioner is the barest inimum for the maintenance of the wife and the minor child and such amount cannot in any sense be said to be excessive. We are not, therefore, inclined to interfere with the quantum of maintenance pendente lite as assessed by the learned trial Judge. ( 12 ) IT is, however, noticed that the learned trial Judge directed the petitioner to pay Rs. 22,500/- as maintenance at a time for the period from June 5, 1985 to February, 1989 without deducting the amount which the petitioner claimed to have paid to the opposite parties Nos. 1 and 2 at the rate of Rs. 200/- per month in pursuance of the order dated April 26, 1988 passed under Section 24 of the Hindu Marriage Act in Matrimonial Suit No. 158 of 1987 (renumbered as Matrimonial Suit No. 13 of 1988 ). We are, therefore, inclined to give the petitioner liberty to apply before the learned trial Judge for deduction of the amount which he paid in pursuance of the order under Section 24 of the Hindu Marriage Act from the amount which is payable by him on account of maintenance pendente lite for the period from June 5, 1985 to February, 1989 in terms of the order passed by the learned trial Judge on April 1, 1989 in Misc. Case No. 38 of 1985. The learned trial Judge already gave liberty to the petitioner to pray for instalments to pay the amount of maintenance for the aforesaid period if he finds it difficult to pay the amount at a time. It will be open to the petitioner to avail of the liberty so given. ( 13 ) THE application for deduction and for instalment, if any, shall be made by the petitioner within six weeks from this date. Such application, if made, shall be disposed of by the learned Court expeditiously and preferably within four weeks. ( 14 ) FOR reasons given above, we are unable to find any merit in this revisional application which is accordingly, dismissed subject to the observations made above. There will be no order as to costs.