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1997 DIGILAW 602 (MP)

Keshav Lal v. Maya Gupta

1997-09-12

R.S.GARG

body1997
JUDGMENT R.S. Garg, J. 1. Being dissatisfied by the order dated 29.3.1995 passed in Execution Case No. 74-A/88 by the First Addl. Judge to the Court of District Judge, Durg, observing that the wife was entitled to claim maintenance from the present applicant-husband, the husband has preferred this revision petition. 2. The brief facts necessary for disposal of this revision petition are that in a suit filed by wife, the Trial Court granted a decree for divorce on 1.8.1990, but did not pass any orders on her allegation in relation to Section 27 of Hindu Marriage Act regarding return of the property. An appeal against the said judgment and decree was preferred before the High Court. The High Court maintained the decree for divorce but however, remanded the matter back to the Trial Court for deciding the questions raised by the wife regarding the property. The judgment was delivered by the High Court in First Appeal No. 199/90 on 21.7.1992. After the matter was remanded back to the Court below, it decided the matter finally and the rights of the parties under Section 27 were also decided by its judgment dated 12.9.1994. After the matter was finally concluded, the wife moved an application for execution pleading inter alia that as an order under Section 24 was passed in her favour in the suit by the Trial Court, she would be entitled to claim maintenance from the husband till final disposal of the matter i.e. after the remand upto 12.9.1994. The husband opposed the said prayer and submitted before the Court below that the order passed under Section 24 was co-terminus with the final order passed in the civil suit therefore, the wife would not been titled to claim any maintenance beyond 1.8.1990. The Trial Court over-ruled the said objection and held that the wife would be entitled to maintenance upto 12.9.1994. Being dissatisfied by the said order, the applicant has preferred this revision petition. 3. Mr. The Trial Court over-ruled the said objection and held that the wife would be entitled to maintenance upto 12.9.1994. Being dissatisfied by the said order, the applicant has preferred this revision petition. 3. Mr. P.S. Das, learned Counsel for the applicant placing reliance upon a judgment of Rajasthan High Court reported in the matter of Bukan Kanwar v. Ajit Chand, AIR 1961 Rajasthan 51, submitted that the order passed under Section 24 would lose its efficacy on termination of the lis before the Trial Court and unless an Appellate Court passes an order or an order under Section 25 of Hindu Marriage Act passed in favour of the wife, the wife would not be entitled to any maintenance beyond 1.8.1990. Mr. Agrawal learned Counsel for the non-applicant placing reliance on a judgment of this Court in the matter of Dwaraka Prasad v. Krishna Devi, 1986 JLJ 179 , submitted that as Section 24 has been enacted to help the weaker party, the order shall remain in force till the lis is finally disposed of. He submits that the word 'proceeding' used under Section 24 of the Act would cover an 'appeal', 'execution' or 'revision' everything in its sweep, therefore, even if there was no order in appeal the non-applicant/wife would be entitled to claim maintenance. 4. Section 24 of Hindu Marriage Act provides for maintenance pendente lite and expenses of proceedings. It reads as under: "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 Court to be reasonable." 5. The word 'proceeding' employed under Section 24 would certainly cover the original proceedings, proceedings under Order 9, Rule 13; Order 9, Rule 9, Civil Procedure Code, a Misc. Appeal or a First Appeal because all these relate to the marriage dispute between the parties. The word 'proceedings' would not cover in its sweep an appeal as a continuation of the lis. Appeal or a First Appeal because all these relate to the marriage dispute between the parties. The word 'proceedings' would not cover in its sweep an appeal as a continuation of the lis. In an appeal an order under Section 24 certainly can be passed because the word proceedings would include an appeal in its sweep. The endeavour of the learned Counsel for the non-applicant was to say that as the proceedings commenced by institution of the plaint or a petition for divorce and would stand terminated finally by the final judgment everything would be covered by the word 'proceedings'. In the opinion of this Court it would not be correct. True it is that an appeal would be 'proceeding' under the Act itself, but to claim maintenance in those proceedings an application under Section 24 is required to be filed. The judgment on which strong reliance has been placed by Mr. Agrawal that is Dwarka Prasad (supra), nowhere says that if an application under Section 24 of Hindu Marriage Act is not filed in an appeal then the order passed by the Trial Court shall continue and would be effective till disposal of the suit. In the said case, the learned Single Judge observed "I prefer to take the view that even if a fresh order is not passed by the Trial Court in the restoration proceeding, it would be well within the jurisdiction of this Court to make a direction in that regard and to restore the lapsed order, I would like to consider the proceedings in the suit to be continued by the proceeding in the restoration application and now in this Court inasmuch as subsequent proceedings arise out of the petitioner's prayer for divorce. The intention of the Court was to revive a lapsed order. The judgment is passed on the footing that the order lapsed on the termination of the lis. The interim order is always co-terminus with the main lis. In the present case, undisputedly, an application under Section 24 of the Hindu Marriage Act was not filed before the High Court. The order passed by the Trial Court under Section 24 of the Act lost its efficacy on the termination of the lis or to say in the word of Mr. Justice Dr. T.N. Singh 'it lapsed'. In the present case, undisputedly, an application under Section 24 of the Hindu Marriage Act was not filed before the High Court. The order passed by the Trial Court under Section 24 of the Act lost its efficacy on the termination of the lis or to say in the word of Mr. Justice Dr. T.N. Singh 'it lapsed'. Unless a fresh order was passed or a lapsed order was revived either on the application by the party or by the Court suo motu the order could not be given effect to. In the matter of AIR 1961 Rajasthan 51, the Court has dearly found that an order for temporary alimony passed by the Superior Court under Section 24 pending the suit by the wife in the Trial Court ensures during the life of the suit in the Trial Court only. If the wife files an appeal against the decision of the Trial Court, in the appeal she must file an independent application for the grant of the relief of alimony which she seeks during the pendency of the appeal. I am in respectful agreement with the said observations made by the High Court of Rajasthan. 6. The question still to be considered is whether the non-applicant would be entitled to claim maintenance beyond 21.7.1992 upto 12.9.1994. After the remand the matter revived before the Trial Court for disposal of the dispute raised under Section 27 of the Hindu Marriage Act. Undisputedly, the Matrimonial Court has jurisdiction to pass an order in relation to disposal of the property. Section 27 of Hindu Marriage Act reads as under : "Disposal of property--In any proceeding under this Act, the Court may make such provisions in the decree as it deems just and proper with respect to any property presented, or about the time of marriage, which may belong jointly to both the husband and the wife." 7. If the Court is clothe with the powers that it may make such provisions in the decree as it deems just and proper with respect to any property presented, or about the time of marriage then the proceedings under Section 27 are part of the main petition filed under Section 24 of the Hindu Marriage Act. If the Court is clothe with the powers that it may make such provisions in the decree as it deems just and proper with respect to any property presented, or about the time of marriage then the proceedings under Section 27 are part of the main petition filed under Section 24 of the Hindu Marriage Act. The fact of the remand was to revive the lis before the Trial Court because of the revival of the suit in the Trial Court earlier order granting maintenance also stood revived. The applicant was entitled to claim maintenance for the period between 21.7.1992 upto 12.9.1994. 8. The order passed by the Trial Court that the wife would be entitled to claim maintenance between 1.8.1990 to 21.7.1992 is bad in law, it deserves to and is accordingly set aside but the order that wife would be entitled to maintenance for the period between 21.7.1992 upto 12.9.1994 is maintained. 9. Mr. Agrawal, at this stage submits that the wife would be entitled to move an application under Section 24 even after disposal of the appeal in the High Court, therefore, such liberty may be given to her. He also submits that this Court even at this stage can direct restoration or revival of the order granting maintenance. In the opinion of this Court, if the law permits the wife to move an application under Section 24 of the Hindu Marriage Act to claim maintenance from the date of the judgment of the Trial Court upto the date of the judgment of the High Court then she would be free to move such application. This order shall not come in her way. 10. For the reasons stated above, to the extent indicated above, the revision is allowed. There shall be no orders as to costs.