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Madhya Pradesh High Court · body

2007 DIGILAW 188 (MP)

Sadhana Singh v. Bhagwan Das Arakh

2007-02-15

A.M.NAIK

body2007
ORDER 1. A challenge to order dated 25.1.2006 passed by Shri Praveen Shah, District Judge, Satna (Annexure P-4) in Case No.HM 66A/05 has been made in the present writ petition whereby an application of the non applicant/petitioner under section 24 of Hindu Marriage Act was dismissed on the ground that it was prima facie established that the petitioner herself was residing separately from her husband in a voluntary manner. 2. Short facts involved in the petition are that the petitioner and respondent are Hindu by religion and their marriage was performed on 21st May, 2004. The respondent-husband submitted an application under section 9 of the Hindu Marriage Act for restitution of conjugal rights with the allegations that the marriage was performed without the consent of the petitioner-wife. She had a love affair with a boy residing at Satna. After the marriage, the petitioner accused her husband of making undue demands for dowry and also levelled allegations on his character. She was not prepared to stay with the applicant-respondent. Consequently, the respondent left the petitioner in March, 2005 at her parents' house. He tried to bring her back but the latter did not agree to it. Ultimately, the respondent-husband after issuing a notice submitted a petition for restitution of conjugal rights in the month of May, 2005. 3. It has been stated by the petitioner-wife in the writ petition that immediately after the marriage, the respondent made demand for additional dowry and also made allegation about the character of petitioner inflicting thereby mental torture so it became unbearable for the petitioner to live with respondent. A complaint was also made with the Police Station, Mahila Thana, Satna on 12.4.2005 and 15.4.2005 which are cumulatively placed on record as Annexure P-1. 4. In the proceedings for restitution of conjugal rights, the petitioner-wife submitted an application under section 24 of the Hindu Marriage Act stating therein that she has no source of income and is wholly dependent on her father. Respondent is serving as a contractual teacher and is earning Rs.5,000/- per month as salary. He also earns about Rs.5000/- per month from tuition. Petitioner, thus, prayed for Rs.5,000/- towards maintenance and Rs.3,000/- towards the expenses of litigation. The prayer having been declined, the present writ petition has been preferred by the petitioner-wife. 5. Respondent is serving as a contractual teacher and is earning Rs.5,000/- per month as salary. He also earns about Rs.5000/- per month from tuition. Petitioner, thus, prayed for Rs.5,000/- towards maintenance and Rs.3,000/- towards the expenses of litigation. The prayer having been declined, the present writ petition has been preferred by the petitioner-wife. 5. Shri Ravendra Shukla, learned counsel appearing for the petitioner contended that his client has no source of income and is entitled to interim maintenance under section 24 of the Hindu Marriage Act. 6. Shri Parag Chaturvedi, learned counsel for the respondent supported the impugned order. He submitted that his client is prepared to keep the petitioner with him as his wife and has already submitted a petition for restitution of conjugal rights. Petitioner having opted to live separately in a voluntary manner is not entitled to interim maintenance as rightly held by the learned trial Judge. 7. After hearing the submissions and perusing the record, this Court is of the considered opinion that the petition deserves to succeed for the following reasons : (i) Admittedly, the petitioner is a legally wedded wife of the respondent who has initiated proceedings under section 9 of the Hindu Marriage Act before the Trial Court. With the initiation of the proceedings under Hindu Marriage Act, 1955 (which includes the proceedings for restitution of conjugal rights under Hindu Marriage Act), section 24 -f it gets attracted which reads as follows: "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 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 the income of the respondent, it may seem to the Court to be reasonable." (ii) A perusal of the aforesaid provision makes it clear that there must be a pending proceeding under the provisions of Hindu Marriage Act, 1955 and the wife or the husband as the case may be must have no independent income sufficient for her/him and the necessary expenses of the proceedings. The wife or husband must make an application and the Court dealing with the proceedings under the Act may order the respondent to pay to the petitioner the expenses of the proceeding and monthly during the proceeding such sum and reasonable monthly sum after taking into consideration the petitioner's own income and income of the respondent. Section 24 of the said Act does not contemplate even separate living of the spouse applying for interim maintenance and litigation expenses. Learned District Judge, Satna appears to have been carried away by the concept of section 125 of CrPC which is made applicable when the respondent neglects or refuses to maintain his wife. In view of the object and purpose of section 125 of CrPC even a bodily able husband who neglects or refuses to maintain his wife may be made liable to pay maintenance irrespective of his income. On the other hand, an order for maintenance under section 24 of the Hindu Marriage Act is liable to be passed after taking into consideration the income of the respondent. Thus, neglect by a spouse or refusal to maintain the spouse is one of the necessary ingredients while granting or declining the maintenance under section 125 of CrPC, but this is not a pre-condition under section 24 of the Hindu Marriage Act and interim maintenance under the said provision cannot be denied merely on ground that the wife is living with her parents in a voluntary manner. Mere pendency of the application for restitution of conjugal rights cannot debar other party from claiming maintenance under section 24. Moreover, it is not an admitted fact that the petitioner-wife is living with her parents by her own wishes. On the contrary, it has been pleaded in the application under section 24 that she was tortured by her husband who made their joint living unbearable. All these facts will have to be examined by the learned trial Judge after recording the evidence and at this juncture it cannot be concluded that the petitioner-wife is living with her parents at her own wish. (iii) Scope of exercise of powers under section 24 of the Hindu Marriage Act has been elucidated by the Bombay High Court in the case of Smt. Gangu Pundlik Waghmare v. Pundlik Maroti Waghmare and another, reported as AIR 1979 Bombay 264. (iii) Scope of exercise of powers under section 24 of the Hindu Marriage Act has been elucidated by the Bombay High Court in the case of Smt. Gangu Pundlik Waghmare v. Pundlik Maroti Waghmare and another, reported as AIR 1979 Bombay 264. It has been held: "Section 24 of the Act which provides for payment of maintenance pendente lite and expenses of proceedings, does not in terms provide that the spouse who makes the application under that section would not be entitled to a relief under it if he or she is guilty of any misconduct or any marital offence. Obviously this section is enacted with the object of providing maintenance to the spouse during pendency of the proceedings, who is not otherwise able to maintain himself or herself and has to depend upon the other spouse for that purpose. The same is the object for making provision for the expenses of the proceeding. The Legislature by enacting the provision appears to have taken note of the fact that during the pendency of the proceedings under the Act, say for divorce or judicial separation, the unity of the family would be disrupted and one of the two spouses would be thrown out from the protection and shelter of the other and would be rendered without any means not only to maintain herself or himself but also to meet the expenses necessary for the proceedings which he or she has to undergo. It is in order to obviate such a hardship that the Legislature thought it fit to make a provision in the Act for maintenance pendente lite and expenses of the proceedings from the spouse who has means to pay the same, if the other has no means. If that be the purpose of the Legislature in enacting this provision, it appears that the question whether the spouse claiming relief under this section is guilty of any marital misconduct or offence would not be relevant for the purpose of directing payment. It is presumed that the proceeding which is initiated under the Act would be for divorce, judicial separation or other matters based on certain allegations with regard to the misconduct or marital offences committed by the other spouse. It is presumed that the proceeding which is initiated under the Act would be for divorce, judicial separation or other matters based on certain allegations with regard to the misconduct or marital offences committed by the other spouse. Now if these allegations were to be gone into at the time of deciding as to whether the applicant, under section 24 of the Act, is entitled to payment of maintenance or expenses, it would amount to prejudging the whole issue. It is needless to say that proceedings under section 24 of the Act are intended to be summary in nature and it would not be appropriate at that stage to decide if the spouse making the application under that section is or is not entitled to the said payment because of the misconduct or commission of marital offence by him or her. No doubt, it is entirely in the discretion of the Court to make or not to make an order under the said section. But that discretion has to be exercised by it on the requirements laid in that section itself and if that section does not prohibit the Court from directing payment of maintenance and expenses on the ground of misconduct, it would not be in keeping with the purpose of the section to refuse to do so merely in exercise of the discretion vested in the Court under that section." (iv) An important aspect would be that the petitioner-wife has yet to submit her written statement. She may take all the permissible pleas. Thereafter, the learned trial Judge would be required to provide opportunity to the parties to adduce evidence and decide the case on merits. Even a prima facie finding against the wife may prejudice her defence. Learned trial Judge has not directed even to substantiate the contents of the application and reply by affidavits. No summary enquiry was held before giving a prima facie finding against the petitioner. He has not even considered the effect of police report which was lodged before the filing of petition for restitution of conjugal rights. Thus, the learned trial Judge has resorted to certain conjectures and surmises in arriving at a primafacie finding that the petitioner is living separately at her own will and is guilty of misconduct/marital offence. He has not even considered the effect of police report which was lodged before the filing of petition for restitution of conjugal rights. Thus, the learned trial Judge has resorted to certain conjectures and surmises in arriving at a primafacie finding that the petitioner is living separately at her own will and is guilty of misconduct/marital offence. (v) In the present case it is an admitted position that the petitioner is a legally wedded wife of the respondent and their marriage has been consummated as admitted in paragraph 5 of the petition for restitution of conjugal rights. Respondent as per his own averments is a contractual teacher with Rs.2,500/- per month as salary. The petitioner has not been found with any source of income by the learned District Judge. This being so, the petitioner is entitled to maintenance pendente lite under the aforesaid provision and the learned District Judge is found to have committed an legality in disallowing the same in the impugned manner. In this view of the matter, the impugned order is not sustainable in law and hence set aside. (vi) Admittedly, parties to the writ petition have no child from the wedlock. Considering this, the respondent is directed to pay to the petitioner a sum of Rs.1,000/- per month as maintenance pendente lite from the date of application under section 24 of the Hindu Marriage Act. (vii) Accordingly, the impugned order contained in Annexure P-4 is hereby set aside to the extent of refusal to award interim maintenance. The application under section 24 is allowed and the respondent is hereby directed to pay the maintenance pendente lite in the aforesaid manner. Needless to say that the expenses of litigation awarded by the learned trial Judge would remain payable by the respondent to the petitioner. No order as to costs.