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2006 DIGILAW 173 (CAL)

TRIPTI MONDAL v. MANINDRA NATH MONDAL

2006-03-20

PRATAP KUMAR RAY

body2006
Pratap Kumar Ray, JJ. ( 1 ) HEARD the learned Advocate appearing for the petitioner. ( 2 ) NOBODY appears to oppose this application. ( 3 ) AFFIDAVIT of Service filed in Court today be kept on record. ( 4 ) IN this application the petitioner who was the opposite party in matrimonial Suit No. 9 of 2002, has assailed the order dated 8th June, 2005 passed by the learned 3rd Additional District Judge at Barasat, North 24 parganas whereby and whereunder the application of the petitioner praying stay of the Matrimonial Suit during pendency of adjudication of the application under Section 24 of the Hindu Marriage Act as filed was dismissed with costs of Rs. 1000/ -. From the impugned order it appears that the application under section 24 of the Hindu Marriage Act, as filed, was not considered by the learned Court below although the Court had the obligation to grant relief forthwith as soon as such application was filed, keeping aside the Matrimonial Suit for adjudication. Hence the short issue involved herein is as to whether in any matrimonial Suit, any application under Section 24 of the said Act if filed same could be kept pending and in the meantime the main proceeding will proceed or not. To appreciate the aforesaid issue, the relevant statutory provision is required to be construed. Section 24 of the Hindu Marriage Act is quoted below for effective consideration. "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 income of the respondent, it may seem to the Court to be reasonable. " ( 5 ) ON a bare reading of the said Section it appears that the said provision as contained therein is made by the legislature, being a social welfare legislation, with the pious intent that if a litigant is not sufficiently affluent to contest any litigation of such type of Matrimonial proceeding, he or she as the case may be may get a chance to contest the matter upon being granted such costs of litigation by the Court in terms of the application as to be filed under section 24 of the said Act. Hence if the proceeding is allowed to continue keeping the application under Section 24 of the Hindu Marriage Act pending or otherwise till finality of the said application under Section 24 the main proceeding is not stayed, the question would arise as to whether the person concerned who is economically weak and has no sufficient fund to contest the matter would be deprived from his/her right to defend the case. The statute in unequivocal term has stipulated that when any of the litigating parties either wife or the husband if set up a case of having no independent income sufficient for support and necessary expenses of the proceeding, the application to be filed and the Court will decide the same. From the very language it appears that the purpose of Section 24 of the Hindu Marriage Act to grant necessary relief for payment of litigation costs is to provide the benefit to the concerned party who is filing the application to contest the matter properly by allowing such litigation costs. On a bare reading of the statutory provision, this Court is of the view that the application under Section 24 of the Hindu Marriage Act is required to be adjudicated upon forthwith as soon as it to be filed keeping aside the main matter for adjudication and for that purpose if any application for stay of that proceeding is filed, the Court cannot refuse to stay the main proceeding due to reason that if such stay is not granted, the party would be deprived of from contesting the matter by defending the case on its merit only for the lack of monetary capacity to contest the case. The right to defend the case having been recognised in terms of Section 24 of the Hindu Marriage Act and thereby relief having been provided in the nature of monetary relief by way of grant of litigation costs and in the event the application under Section 24 of the said Act is kept pending and the Matrimonial Suit proceeds, it will cause total breach of section 24 of the said Act. Considering the jurisprudential concept of the enactment of statutory provision under Section 24 of the said Act, this Court is of the view that the impugned order passed by the learned Court below rejecting the prayer to stay Matrimonial proceeding till finality of the application under section 24 of the Hindu Marriage Act practically has caused a total breach of the said Section 24 of the lindu Marriage Act and thereby the petitioner has been denied to contest the matter. In that view, the impugned order suffers from strong perversity and accordingly it is set aside and quashed. ( 6 ) LEARNED Court below is directed to dispose of the application under section 24 of the Hindu Marriage Act first upon hearing the parties and thereafter to proceed with the main Matrimonial Suit No. 9 of 2002. This revisional application is accordingly allowed.