Judicial Analysis Court Copy Headnote Facts Arguments Court observation

1979 Supreme(Bom) 80

Bombay High Court
GINWALA
Gangu Pundlik Waghmare - Appellant
Versus
Pundlik Maroti Waghmare - Respondent
Decided On : 03/27/1979

Advocates:
C.W. Moharir, for Applicant; S.M. Mahawadiwar, for Opponent No. 1.

The court's discretion under Section 24 of the Hindu Marriage Act, 1955, to grant maintenance pendente lite and expenses of proceedings is not to be exercised on the basis of the applicant's alleged misconduct or marital offenses. The court must consider the applicant's financial need and the respondent's ability to pay.

Headnote:
HINDU MARRIAGE ACT, 1955 - SECTION 24 - MAINTENANCE PENDENTE LITE AND EXPENSES OF PROCEEDINGS - DISCRETION OF COURT - FACTORS TO BE CONSIDERED - INTERPRETATION OF SECTION 24.
Fact of the Case:

The applicant, wife of the non-applicant, filed an application under Section 24 of the Hindu Marriage Act, 1955, seeking maintenance pendente lite and expenses of litigation from the non-applicant, who had filed a petition for divorce on the grounds of desertion and adultery. The non-applicant resisted the application, claiming he had no means to maintain himself and his children, and that the applicant was engaged in selling vegetables and had sufficient means to maintain herself.
Finding of the Court:

The trial court rejected the applicant's application, holding that she was not entitled to maintenance or expenses as she was not residing with the non-applicant and was allegedly leading an adulterous life. The court also found that the non-applicant had no means to pay any maintenance or expenses.
Issues: 1. Whether the trial court erred in considering the applicant's alleged misconduct and marital offenses in deciding the application under Section 24 of the Act. 2. Whether the trial court erred in finding that the non-applicant had no means to pay maintenance or expenses. 3. Whether the court is bound to order the payment of expenses of the proceeding irrespective of the income of the respondent.
Ratio Decidendi: 1. The court held that the trial court erred in considering the applicant's alleged misconduct and marital offenses in deciding the application under Section 24 of the Act. The purpose of Section 24 is to provide maintenance to the spouse during the 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 question of misconduct or marital offenses is not relevant for the purpose of directing payment. 2. The court held that the trial court's finding that the non-applicant had no means to pay maintenance or expenses was not based on any material irregularity and could not be interfered with in revision. 3. The court held that the payment of expenses of the proceeding is also dependent upon the income of the respondent spouse. The court cannot order the payment of expenses of the proceeding without considering the income of the respondent, as this would lead to an order that is incapable of being carried out.
Final Decision: The revision application was dismissed, and the trial court's order was upheld.

ORDER :- The applicant is the wife of non-applicant No. 1 (hereinafter referred to as the non-applicant). The non-applicant has filed a petition in the Court below seeking divorce from the applicant under the provisions of Section 13 of the Hindu Marriage Act, 1955 (hereinafter referred to as 'the Act') on the ground of desertion and adultery. It is alleged that the applicant is leading adulterous life with non-applicant No. 2. This petition was filed on 18th July, 1975. The applicant appeared in the lower Court and before filing her written statement, made an application under Section 24 of the Act for maintenance pendente lite and for expenses of the litigation to be had from the non-applicant. In this application she alleged that she had no independent means of income for maintaining herself or to meet the expenses of the proceedings. She, therefore, claimed an amount of Rs. 200/- a month by way of maintenance and Rs. 300/- for meeting the expenses of the proceedings. The non-applicant resisted this application. He not only denied all the averments which the applicant had made in her said application but further contended that he himself had no means to maintain himself and he was fully dependent upon his father. He contended that whatever little he earned by working on the field of his father, was just sufficient to maintain himself and his children. According to him, the applicant was possessed of sufficient means to maintain herself as she was engaged in selling vegetables. The non-applicant further submitted that the applicant had herself deserted him and in spite of his best efforts she did not return to him. According to the non-applicant, the applicant was leading an adulterous life with non-applicant No. 2 and she had become pregnant because of her illicit relations with the latter. The non-applicant urged that the very fact that the applicant was in advanced stage of pregnancy and that she does not say that she had conceived from the non-applicant, would indicate that she was indulging in adultery and the charge made by the non-applicant to this effect in his petition was prima facie true. According to the non-applicant, since the grant of maintenance and expenses of litigation was discretionary with the Court, it should not be exercised in a matter like this, as it would amount to putting a premium on the unchastity of a woman living in adultery. During the course of the hearing of this application under Section 24 of the Act, the applicant examined herself while the non-applicant examined himself and his father. Besides this the applicant also put on record the extracts from revenue papers show that the non-applicant owned and possessed some agricultural lands.

2. The learned trial Judge held that he applicant was neither entitled to the maintenance pendente lite nor the expenses of the proceedings as claimed by her. The learned trial Judge firstly held that since the applicant was not residing with the non-applicant from the month of April 1974, she could not have been pregnant from him and hence he could not exercise the discretion in her favour for granting the maintenance or expenses of the proceedings. Secondly the learned trial Judge, after considering the evidence on record, found that the non-applicant had no means to pay any maintenance or expenses to the applicant as he did not own an agricultural land more than one acre in area and he had to maintain himself and his three children. Having taken this view, the learned trial Judge rejected the said application of the applicant by his order passed on 19th February, 1977 and it is against this order that the present revision application has been filed.

3. Mr. C.W. Moharir, the learned counsel for the applicant, firstly submitted that the learned trial Judge should not have refused to grant the interim maintenance and the expenses of the litigation on the ground that the applicant was living an adulterous life or that she has deserted the non-applicant. Accor

Click Here to Read the rest of this document

Judicial Analysis

1979 Supreme(Bom) 80

Bombay High CourtGINWALAGangu Pundlik Waghmare - AppellantVersusPundlik Maroti Waghmare - RespondentDecided On : 03/27/1979

Judicial Analysis

Bombay High Court
GINWALA
Gangu Pundlik Waghmare - Appellant
Versus
Pundlik Maroti Waghmare - Respondent
Decided On : 03/27/1979