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2015 DIGILAW 907 (CAL)

Alpana Pandit v. Kesto Pandit @ Pradip Pandit

2015-11-16

HARISH TANDON

body2015
JUDGMENT : In spite of service there is no representation on behalf of the opposite party. The affidavit of service filed in Court today be kept with the record. The application under Sections 18 and 20 of the Hindu Adoptions and Maintenance Act, 1956 is rejected by the Trial Court on the premise that the wife has already approached the Judicial Magistrate under Section 125 of the Code of Criminal Procedure and is provided with the maintenance and there is no evidence pruduced before the Court relating to the cruelty perpetrated by the husband upon her. The Court appears to have been swayed by the conditions laid down in Sub-section 2 of Section 18 of the said Act as a condition precedent for awarding the maintenance. Before proceeding to decide whether the impugned order suffers from illegality or not, it would be profitable to quote Section 18, which runs thus: “Maintenance of wife – (1) Subject to the provisions of this section, a Hindu wife, whether married before or after the commencement of this Act, shall be entitled to be maintained by her husband during her life time. (2) A Hindu wife shall be entitled to live separately from her husband without forfeiting her claim to maintenance-- (a) if he is guilty of desertion, that is to say, of abandoning her without reasonable cause and without her consent or against her wish, or of wilfully neglecting her; (b) if he has treated her with such cruelty as to cause a reasonable apprehension in her mind that it will be harmful or injurious to live with her husband; (c) if he is suffering from a virulent form of leprosy; (d) if he has any other wife living; (e) if he keeps a concubine in the same house in which his wife is living or habitually resides with a concubine elsewhere; (f) if he has ceased to be a Hindu by conversion to another religion; (g) if there is any other cause justifying living separately. (3) A Hindu wife shall not be entitled to separate residence and maintenance from her husband if she is unchaste or ceases to be a Hindu by conversion to another religion.” From the meaningful reading of the language employed therein, there is no hesitation to hold that awarding the maintenance under the said Act is not depended upon the maintenance granted under different Act or statute. The said Section contains two eventualities; firstly it recognizes the right of the wife to claim maintenance from her husband during her life time, secondly the wife has a right to live separately without waiving or abandoning the right to claim maintenance from the husband. So far as the second aspect is concerned, the conditions laid down in Sub-section 2 of Section 18 of the Act have its relevancy, which is absent when the wife claims maintenance without claiming a right to live separately. The Trial Court appears to have misconstrued the said provision and have entertained both Subsection 1 and Sub-section 2 within one shelter, as if in case of maintenance simplicitor the conditions incorporated in Sub-section 2 are required to be fulfilled. The right to live separately from the husband is separate, distinct and different than the right to claim maintenance. Furthermore, Section 23 of the Act, which relates to the quantum of maintenance, does not put any fetter on the Court in refusing to grant maintenance, in the event the maintenance is provided under a different statute. The language under Section 18 (1) of the Act is clear unambiguous and sufficiently conveys the legislative intent without leaving any room for any other interpretation. The right to claim maintenance is, therefore, not depended upon the conditions laid down under Sub-section 2 thereof. This Court finds that the entire approach of the Trial Court is improper and, therefore, is unsustainable. The order impugned is thus set aside. Since the Trial Court have dismissed the application on misinterpreting the provisions contained under Section 18 of the said Act and did not had an occasion to go into the merit thereof, this Court feels that the matter should be remitted back to the Trial Court for reconsideration. Accordingly, this Court directs the Trial Court to reconsider the application under Section 18 of the Act upon affording an opportunity of hearing to the respective parties or their counsels and shall make efforts to dispose of the same within six months from the date of the communication of this order in accordance with law. With the above observations, the revisional application is disposed of. There will be no order as to costs.