Calcutta High Court
JUSTICE Tarun Chatterjee
Malaya Das (Nee) Ghosh Vs. Basudeb Das On 30 September 1996
Law Point:
Revisional Court –– Does not retain its jurisdiction to increase the maintenance.
JUDGEMENT
This revisional application is directed against an order being order No. 102 dated 23rd May, 1994 passed by Mr. R.N. Mallick Choudhury, Additional District Judge, second Court at Alipore in Matrimonial Suit No. 29 of 1993.
2. On or about 25th April, 1988 the husband, Basudeb Das as a plaintiff filed a matrimonial suit for divorce against the wife who is the petitioner in this revisional application under Section 13 of the Hindu Marriage Act, 1955 (hereinafter referred to as ‘the Act’). On an application made by the petitioner in the pending suit for alimony pendente lite under Section 24 of the Act, the Trial Court by an order dated 12th September, 1989 provided a monthly maintenance of Rs. 350/- to the petitioner although in the application the petitioner had prayed for Rs. 1,250/- per month. In the said order, the Trial Court also directed the husband to pay a sum of Rs. 500/- to the petitioner on account of litigation cost and a sum of Rs. 100/- per month on account of arrears of alimony till the arrear amount was liquidated. Subsequently, an application for increase of alimony pendente lite was filed by the petitioner as, according to the petitioner, the salary of the husband/opposite party was substantially increased in the meantime. By an order dated 23rd May, 1994 the aforesaid application for increase of alimony pendente lite was dismissed by the Trial Court. Feeling aggrieved by the aforesaid order the wife/petitioner has come up to this Court in revision. This revisional application was moved initially before a Division Bench of this Court on 5th September, 1994 when the following order was passed :
“Let affidavit-in-opposition be filed within 10 days from date and reply thereto, if any, be filed within three days thereafter and let the application come up for hearing as a contested one fortnight hence.”
3. In view of the amendment of the appellate side rules this revisional application was listed for hearing before a learned Judge of this Court. Finally, this revisional application was taken up for hearing by me. When this revisional application was taken up for hearing, the learned Advocate for the husband/ opposite party brought to my notice the fact of decreeing the suit ex-parte in favour of the plaintiff/opposite party on 31st March, 1995 by filing a certified copy of the ex-parte decree in Court which may be kept on record. The ordering portion of the ex-parte judgment passed on 31st March, 1995 is to the following effect :
“That the suit is decreed ex-parte. The marriage held between the parties to the suit on 11th December, 1983 is declared null and void.”
4. The learned Counsel for the plaintiff/opposite party relying on this exparte decree submitted that the revisional application which arose out of an interlocutory order had become infructuous as it is well settled that if a decree is passed, the interlocutory orders passed in the pending suit merge with the decree. Mr. Roy, appearing on behalf of the wife/petitioner could not dispute the fact that the suit was decreed ex-parte on 31st March, 1995. Mr. Roy also could not bring to my notice any fact of filing an application for setting aside the aforesaid ex-parte decree. Mr. Roy has, however, contended that even if the suit is decreed, it is open to the revisional Court to consider the propriety of the order impugned in this revisional application and to pass necessary orders on the same. Mr. Roy also agreed that in the event it is held that in view of the decree being passed against the petitioner, the revisional application becomes infructuous, then the question of going into the merits of the impugned order in which the Trial Court had held that in the facts and circumstances of this case the petitioner was not entitled to any increase of monthly maintenance cannot arise at all. In view of this fact it is, therefore, necessary to deal with the question whether in spite of the ex-parte decree having been passed in favour of the plaintiff/opposite party, the petitioner is still entitled to agitate the question of increase in the monthly maintenance in this revisional application which has arisen out of an order passed by the Trial Court while the matrimonial suit between the parties was pending in the Trial Court. Let me, therefore, deal with this question now. Mr. Roy, appearing on behalf of me wife/petitioner in support of his contention that even if a decee is passed in a matrimonial suit, a party in the said suit is still entitled to get orders in respect of maintenance from Court where such suit was pending relied on various decisions of different High Courts which are reported in AIR 1987 Ker. 151, E.K. Raghavan v. K.K. Saroja, AIR 1988 Ker. 235, Radhakumari v. K.M.K. Nair, AIR 1988 P & H 31, Mandanlal v. Meena, AIR 1983 Raj. 229, Bhansar Lal v. Kamala Devi, AIR 1981 P & H 306, Sudersan Kumar v. Deepak, AIR 1984 P & H 332, Sohan Lal v. Smt. Kamlesh.
5. From the afroesaid, therefore, it is evident that that only question to be decided now is whether the Revisional Court still retains its jurisdiction to increase the rate of maintenance and expenses of proceedings under the Hindu Marriage Act (hereinafter referred to as ‘the Act’) after the suit is disposed of. In order to decide this question let me look into the provisions of Section 24 of the Hindu Marriage Act first. It reads as follows :
“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 proceedings, it may, on the application of the wife or the husband, order the respondent to pay to the petitioner the expenses of the proceedings, and monthly during the proceeding such sum as, having regard to petitioner’s own income and the income of the respondent, it may seem to the Court to be reasonable.”
(Emphasis supplied)
6. From a plain reading of the aforesaid provision in Section 24 of the Hindu Marriage Act, it appears to me that the Court on the application of the wife or husband may order the respondent to pay to the petitioner the expenses of the proceeding and monthly maintenance during the proceeding such sum as it may seem to the Court to be reasonable. Section 24 of the Act starts with the caption “maintenance pendente lite and expenses of proceedings”. From a plain reading of Section 24 of the Act, it also appears to me that the word used in Section 24 “maintenance pendente lite and expenses of proceedings” must be read with the word used in the section ‘during the proceeding and if the caption ‘maintenance pendente lite and expenses of proceedings’ and ‘during the proceeding’ are read together can it be said that the petitioner shall still be entitled to the expenses of proceedings when such proceeding was not pending before the Court ? I would have understood if Section 24 of the Act only dealt with ‘maintenance pendente lite’ and not with ‘maintenance pendente lite’ and “expenses of proceedings”. The insertion of the word “expenses of the proceedings” in the caption made under Section 24 of the Act makes it clear that the intention of the Legislature is to retain the jurisdiction of the Court where a matrimonial proceeding is or was pending and not when the proceeding is over. The word ‘alimony’ has not been defined in the Act. The origin of the word ‘alimony’ has been borrowed from the Latin expression ‘alimonia’ which means sustenance or support of the wife or the husband by the other. The alimony means the allowances which the husband or the wife by Court order pays to the other spouse for maintenance while they are separated or after their divorce with permanent alimony or temporarily pending a suit for divorce (pendente lite).
7. As noted herein earlier, Section 24 of the Act starts with the words “where in any proceeding under this Act”.
8. After reading these words carefully as incorporated in Section 24 of the Act it is clear that the Legislature intended that the maintenance pendente lite and expenses of proceedings can be ordered by a Court in a pending proceeding and not in a disposed of proceeding. When there is no pending proceeding under the Act before the Court, it is difficult to accept that still then the Court has power to pass any order of maintenance pendente lite and expenses of proceedings to any of the spouses. If the proceeding filed under the Act is not alive or is over it is difficult to conceive that in such dead proceeding the Court still retains power to grant such relief to any of the spouses in such dead proceeding. Therefore, from a plain reading of Section 24 of the Act particularly considering the words used “in any proceeding under this Act” and “during the proceeding” it cannot be said that the Court can pass and order for payment of maintenance pendente lite and expenses of proceeding after the parent proceeding is over. Before I proceed further I may also refer at this juncture the provisions made in respect of permanent alimony and maintenance which is provided in Section 25 of the Act. By the introduction of Section 25 it is now evident that Section 25 enables the Court to order one party to a proceeding under the Act to pay to the other party expenses for the latter’s maintenance and support after the passing of the decree. Therefore, it is obvious that the word ‘permanent’ used in the matrimonial suit is meant to distinguish maintenance referred to in Section 25 of the Act from maintenance pendente lite under Section 24 of the Act. Apart from that Section 25 of the Act, in my view, empowers the Court to direct the payment of permanent alimony and maintenance only at the time of passing any decree or at the time subsequent thereto. However, the Court is also conferred with the power to change the amount of permanent alimony and maintenance at any time after the Court has made an order under Sub-section (1) and, accordingly, the power of the Court to vary, modify or even rescind any order of permanent maintenance has been conferred upon the Court under Section 25(2) of the Act. Sub-section (3) of Section 25 of the Act also confers power on the Court to vary, modify or rescind any order of maintenance if the Court is satisfied that the party in whose favour an order has been made under this section has re-married or if such party is the wife, if she has not remained chaste or if such party is the husband, he has had sexual intercourse with any woman outside the wedlock from the comprehensive analysis of the different Sub-sections (3) of Section 25 it is evidence that an order under Section 25 can be made.
(1) either at the time of passing the decree.
(2) or at any time subsequent thereto and not during the pendency of the suit.
Therefore permanent alimony and maintenance under Section 25 of the Act cannot be passed if the substantive petition is once dismissed by the Court or withdrawn by the petitioner.
9. Therefore, if we read Section 24 and Section 25 of the Act conjointly it would be evident that there are different stages when the Court can direct payment of maintenance. Section 24 empowers the Court to direct payment of maintenance during the pendency of the proceeding and Section 25 empowers the Court to direct payment of maintenance either at the time of passing the decree or at any time subsequent thereto. In my view, different and distinct stages have been intended by the Legislature for application of the aforesaid provisions of the Act. Let me now deal with Section 26 of the Act which deals with custody of children.
Section 26 reads as follows :
Custody of children : In any proceeding under this Act, the Court may, from time to time, pass such interim orders and make such provisions in the decree as it may deem just and proper with respect to the custody, maintenance and education of minor children, consistently with their wishes, wherever possible, and may, after the decree, upon application by petition for the purpose, make from time to time, all such orders and provisions with respect to the custody, maintenance and education of such children as might have been made by such decree or interim orders in case the proceedings for obtaining such decree were still pending, and the Court may also from time to time revoke, suspend or vary any such order and provision previously made.
10. From plain reading of Section 26 of the Act it is evident that this section applies to a proceeding under the Act whether it is a petition for a decree or for an order or any other claim and it confers on the Court exercising jurisdiction under any provision of the Act to make provisions in respect of (1) custody, (2) maintenance, (3) education of children.
11. Again from a plain reading of Section 26 of the Act it appears to me that under Section 26 of the Act, the Court can make the following types of orders :
(1) Interim orders during the pendency of the proceedings.
(2) Provisions included in the decree when passed.
(3) Orders passed after the date of the decree.
(4) Orders revoking, suspending or varying any of the preceding three orders and provisions.
12. Therefore, from a careful analysis of the aforesaid provisions under Section 26 of the Act, there are certain stages of action that may be taken by the Court under Section 26 of the Act.
The first stage is :
(1) at any time before finally passing a decree the Court can pass interim orders relating to custody, maintenance and education of children.
(2) in the decree the Court can make provision for the custody, maintenance and education of children.
(3) Even after a decree is passed an application may be made to the Court by way of petition for making orders for custody, maintenance and education of children. Therefore, under Section 26 passing of a decree in the main proceeding does not terminate the Court’s jurisdiction to pass certain orders in respect of custody, maintenance and education of children. Accordingly, in my view, the intention of the legislature relating to Section 26 is explicit as it provides power on the Court to pass orders even after the decree is passed whereas.
Section 24 clearly contemplates payment of maintenance and expenses of proceedings during the pendency of that proceeding. It means that the maintenance pendente lite and expenses of proceedings can be ordered during the proceedings not after that.
13. From the discussions made hereinabove it appears to me that the Legislature has specifically conferred powers on the Court under Sections 25 and 26 of the Act to pass orders of maintenance after the decision is made or at the time of passing the decree but in the case of Section 24 of the Act no such specific power has been conferred on the Court by the Legislature intentionally.
14. Therefore, in my view, Sections 24 to 26 of the Act provides for maintenance and for expenses of proceedings at different distinct stages of the proceeding.
15. Therefore, I am unable to agree with Mr. Roy that the Court still retains its jurisdiction to grant maintenance pendente lite and expenses of the proceedings even after the proceeding is disposed of. If any party is required to ask for maintenance pendente lite and expenses of any legal proceeding he or she has to approach the Court where the matrimonial proceeding is pending or to approach the Court under the Hindu Maintenance and Adoption Act.
16. Accordingly, I must hold that after the decree is passed, may it be an exparte decree, the Court is not conferred with any power to pass an order directing the other party to pay maintenance pendente lite and expenses of proceedings.
17. Before parting with this order it is my duty to deal with the decisions cited by Mr. Roy for the petitioner. At the first instance the decision of the Supreme Court in the case of Smt. Sarojrani v. Sudarshan Kr. Chadda, AIR 1984 SC 1562, may be dealt with. Relying on paragraph 19 at page 1569 of the aforesaid decision Mr. Roy contended that the Revisional Court had the jurisdiction to direct payment of maintenance even after the parent matrimonial proceeding was disposed of during the pendency of the revisional application. In my view, the aforesaid decision of the Supreme Court is not applicable in the present case. In that decision the Supreme Court has observed that even after the final decree of divorce the husband would continue to pay maintenance to the wife until she remarries. There is no dispute about mis proposition. But it must be kept in mind that the Supreme Court in that decision while disposing of an appeal filed against the final disposal of the matrimonial suit directed payment of maintenance while disposing of the said appeal. Therefore, in a pending appeal between the parties there cannot be any dispute that the Court has ample power to grant maintenance until any variation of the amount by proper application on proper materials is made by the Trial Court. In this case there is no question of pendency of any suit or appeal and, therefore, there cannot be any dispute that after the decree in matrimonial suit was passed the interlocutory orders including the order challenged in this application had merged with the ex-parte decree. In this view of the matter, I am unable to rely on the aforesaid decision of the Supreme Court. The next decision which is to be considered now is a decision of the Kerala High Court in the case of Ellikkai Kunivil Raghavan v. K.K. Saroja, AIR 1987 Ker. 151. It is true that in this decision it has been observed by a learned Single Judge of Kerala High Court that the Court should dispose of a petition under Section 24 on merits notwithstanding the disposal of the proceeding if circumstances do require it. In the peculiar facts and circumstances of that case it was held that an application for ancillary reliefs must be decided by the Court even if the main petition is dismissed by it. The ground on which this observation had been made by the learned Judge was that if Section 24 of the Act is made for payment of maintenance during the matrimonial proceeding then there will be an unbuilt interdiction in the provision prohibiting matrimonial Court from ordering interim alimony when main petition stands dismissed. Such will only promote and encourage dilatory disposal of the interlocutory applications particularly applications under Section 24 of the Act. In that case the application under Section 24 was not disposed of and an inordinate delay was made by the Court to dispose of the same. Before such disposal of the application under Section 24 the matrimonial proceeding itself was disposed of. In this background it was held that the Court has a right to dispose of the pending proceeding under Section 24 even if the main petition is disposed of. It has also been observed in the said decision that once an interlocutory application is entertained validly, it has to be disposed notwithstanding the disposal of the main proceeding. Therefore, the view expressed in that decision by the Kerala High Court was also on the basis that since an application had been filed and entertained by the Court it is the duty of the Court to dispose of the pending application even if the main petition was disposed of. Apart from that for awarding maintenance to any of the married spouses the stages have been made by introduction of different provisions regarding payment of maintenance. Section 24 deals with maintenance during the proceeding. Section 25 deals with payment of maintenance after or at the time of the decree is passed. Apart from that it was also open to a party to approach the Court under the Hindu Maintenance and Adoption Act for getting maintenance. Therefore, when specific provisions have been made in different Acts and also to pay maintenance in different stages, I do not find any reason to agree with Kerala High Court saying that if an interlocutory application is filed such an application shall be disposed of by the Court even after the main petition is disposed of. In this connection I fully agree with the views expressed in the case of Chitralekha v. Ranjit Rai, AIR 1977 Del. 176, where the Delhi High Court has clearly held that if there was no legal proceeding left to prosecute or defend at any stage and in any Court then certainly no order under Section 24 of the Act can be passed. I am in full agreement with the views expressed by the Delhi High Court. Apart from that in the present case there was no question of a pending application under Section 24 of the Act. The application under Section 24 of the Act was disposed of before the parent proceeding under the Act was disposed of. As noted herein earlier the revisional application arises out of an order passed by the Trial Court while the matrimonial proceeding was pending, refusing to increase the amount of maintenance that was directed to be paid at the time of disposal of the petition under Section 24 of the Act. For the reasons aforesaid I am unable relying on to the decision of the Kerala High Court in the case of E.K. Raghabhan v. K.K. Saroja, AIR 1987 Ker. 151. The next decision on which Mr. Roy relied was a Division Bench decision of this Court in the case of Chitralekha v. Durubajyoti, AIR 1988 Cal. 98. This decision has no manner of application to the facts and circumstances of this case. In that decision the point for consideration was whether an application for maintenance pendente lite and cost of litigation as well as for an order of temporary injunction restraining the husband from marrying during the pendency of the appeal against the decree of divorce against the wife was maintainable or not. There cannot be any dispute that an application under Section 24 of the Act can be filed in a pending appeal. In that decision the Division Bench of this Court has never considered whether in a disposed of appeal the High Court could pass an order of maintenance or not.
18. Similarly the Division Bench decision in the case of Radhakumari v. Dr. K.M.K. Naiyar, AIR 1988 Ker. 235, is not applicable in the present case as the said decision was made while disposing of an appeal filed against a decree passed in the original matrimonial proceeding. Mr. Roy appearing on behalf of the petitioner relied on this decision saying that even after the final decree for divorce the wife was entitled to get maintenance from her husband till she re-married. This Division Bench decision, while coming to such a conclusion followed the decision of the Supreme Court in the case of Sarojrani v. Sudarshan Kr. Chadda, AIR 1984 SC 1562. As I have already discussed the aforesaid decision of the Supreme Court and observed that the said decision of the Supreme Court cannot be applied in this case and therefore I do not find any reason to rely on the decision of the Kerala High Court for the same reasons. Mr. Roy next relied on a Single Bench decision of the Punjab and Haryana High Court reported in AIR 1988 P & H 31, Mandanlal v. Meena. In my view this decision is clearly distinguishable on facts. In that decision the learned Judge of the Punjab and Haryana High Court held that when an application for setting aside an ex-parte decree for divorce obtained under the Act was pending on the pending application for setting aside an ex-parte decree for divorce obtained under the Act, Section 24 of the Act is applicable also to such a proceeding. There is no dispute about this proposition of law and I am in full agreement with the views expressed by the Punjab and Haryana High Court. But in this case the fact is otherwise. As noted herein earlier, in this case the petitioner has challenged an order rejecting her prayer for enhancement of maintenance already passed while the matrimonial proceeding was pending. But the said matrimonial proceeding came to an end when the civil revisional application was pending in this Court. Therefore, in my view, there is no pending proceeding so far as the present case is concerned whereas in the decision of the Punjab and Haryana High Court admittedly proceedings under Order 9 Rule 13 were pending when such direction for payment of maintenance under Section 24 of the Act was made. Accordingly, this decision is of no importance so far as the present case is concerned. In the case of Bhansar Lal v. Smt. Kamala, AIR 1983 Raj. 229, it has been clearly held that an application under Section 24 may not survive after the date of matrimonial cause comes to an end but it was held in that decision that it is the bounden duty of the Court to decide a petition under Section 24 of the Act for interim maintenance and litigation expenses as expeditiously as possible before the trial of the main petition begins and at any rate definitely before the decision of the main petition. In the aforesaid decision of the Rajasthan High Court the Court interfered in the exercise of revisional jurisdiction with the order dismissing the application for interim maintenance and litigation expenses and determined the amount of interim alimony and litigation expenses while hearing revisional petition in the background of the fact that by deliberate or mistaken action or inaction the remedy of a litigant cannot be taken away which was available to such litigant. From the aforesaid decision of the Rajasthan High Court one thing is clear that it has been clearly held in that decision that there can be no doubt that it is imperative that an application under Section 24 of the Act should be decided in any event before the disposal of the main petition under the Act. In the peculiar circumstances of that case the main petition of divorce was disposed of on the same day before the application under Section 24 of the Act was taken up for hearing by the Court. In the back ground of this fact the Rajasthan High Court held that the wife in that case had vigilantly prosecuted her application under Section 24 and merely because of the indiscretion of the Trial Court the application could not be disposed of, although it was held that a petition under Section 24 of the Act could not be entertained by the Court when the main petition for divorce had come to an end. That apart, as noted herein earlier, this revisional application arises out of an order passed by the Trial Court rejecting the prayer of the petitioner for enhancement of maintenance already ordered under Section 24 of the Act. Therefore, the question of pendency of a petition under Section 24 of the Act at the time of the dismissal of the matrimonial proceeding did not arise at all. Accordingly, this decision of the Rajasthan High Court, in my view, cannot be relied upon in the present case. Mr. Roy also in support of his aforesaid contention relied on a decision of the Punjab and Haryana High Court reported in AIR 1981 P & H 306, Sudarsan Kr. v. Smt. Deepak. In the peculiar facts of that case it was held that the husband could not be allowed to urge that the proceedings for grant of maintenance pendente lite and litigation expenses could not proceed after the decision of the main case. In view of the peculiar facts involved in that decision the Punjab and Haryana High Court had taken a view that the husband could not be allowed to urge the question of jurisdiction of the Court to entertain a pending petition under Section 24 of the Act while the main petition for divorce had already come to an end. That being the position I am unable to rely on this decision cited by Mr. Roy on behalf of the petitioner. In the case of Sohanlal v. Smt. Kamlesh, AIR 1984 P & H 332, on which Mr. Roy relied however, says that if the application under Section 24 continued after the dismissal of the main petition, the applicant was entitled to maintenance till the date of the decision of the Court. This decision can be distinguished on two grounds. So far as the present case is concerned, there is no pending proceeding under Section 24 of the Act. Even assuming the application for enhancement of the maintenance can be treated to be a further application under Section 24 even then the Division Bench in that decision after making an interpretation of the words ‘monthly during the proceeding such sum’ held that the intention of the Legislature is that it has intended to give maintenance to the indigent spouse till the dismissal of the main proceeding and for that reason it was held that in that decision an applicant was entitled to maintenance till the date of the decision of the main petition and not till the decision of the application for maintenance although Section 24 however, if applied, would entitle the Court to direct payment of maintenance till the application for maintenance under Section 24 of the Act is disposed of. For the reasons aforesaid I am unable to rely on the aforesaid decision relied on by Mr. Roy. Last decision relied on by Mr. Roy is the Supreme Court decision reported in 1970 (3) SCC 129, Dr. Kubhuseer v. Smt. Rajkumari & Anr., I have no hesitation to say at once that this decision of the Supreme Court has no manner of application so far as the present case is concerned. In that decision the Supreme Court was interpreting Section 23(2)(a) to (b) of the Hindu Adoption and Maintenance Act, 1957 and in that context held that the maintenance decree under the Act shall take effect from the date of institution of the suit and the appellant in that appeal was entitled to Income Tax deductions which would be taken into account in fixing maintenance. As already said I do not find any reason to rely on this decision for the purpose of reaching to a conclusion on the question referred to me.
19. For the reasons aforesaid, I am, therefore, of the view that the revisional application has now become infructuous. This order, however, shall not prevent the petitioner from approaching the Court if an application under Order 9 Rule 13 of the Code of Civil Procedure is filed, for a direction upon the husband to pay maintenance at a higher rate in that proceeding under Order 9 Rule 13 of the Code. It will also be open to the petitioner to approach other available remedies for the purpose of getting higher rate of maintenance under different other acts as well. I, however, make it clear that I have not gone into the merits as to whether the main order rejecting the prayer of the petitioner for enhancement of maintenance was rightly passed by the Court or not.
Accordingly, this revisional application is dismissed as it has become infructuous.
There will be no order as to costs.
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