I.A. No. 2227 of 2006

This interlocutory petition has been filed by the opposite party for a direction to the petitioner for payment of ad interim maintenance and litigation cost to the opposite party during the pendency of the civil revision application in compliance of order, dated 2.8.2005, passed by the Principle Judge, Family Court, Patna, in Misc. Case No. 2 of 2003. The civil revision application has been admitted for hearing, but no stay has been granted, so far the impugned order is concerned, as such, the petitioner must pay the arrears as well as month to month payment of ad interim maintenance and the litigation cost.

2. Petitioner in the civil revision application is the husband of opposite party, who had filed Matrimonial Case No. 207 of 2001 under Section 13 of the Hindu Marriage Act for dissolution of his marriage with the opposite party, Reeta Kumari, by a decree of divorce. Opposite party appeared, but she did not contest the case by filing written statement and ex parte judgment and decree was passed whereby the marriage in between Anish Ranjan (petitioner) and Reeta Kumari (opposite party) was dissolved by a decree of divorce. Opposite Party filed Misc. Case No. 2 of 2003 under Order 9 Rule 13 of the Civil Procedure Code for setting aside ex parte divorce, judgment and decree. In this Miscellaneous case, opposite party filed an application under Section 24 of the Hindu Marriage Act for grant of ad interim maintenance and litigation cost. This application was contested by the petitioner stating that after passing of the divorce decree, unless appeal or miscellaneous case is allowed and ex parte decree is set aside, there is no relationship of husband and wife between the parties. The opposite party can not claim any maintenance under Section 24 of the Hindu Marriage Act, 1955, only husband or wife can claim for maintenance pendente lite under Section 24 of the Hindu Marriage Act since, proceeding under Hindu Marriage Act has already reached its finality and proceeding under Order 9 Rule 13 of C.P.C. is not continuation of earlier suit no order under Section 24 of the Hindu Marriage Act can be passed. Proceeding under Order 9 Rule 13 is an independent proceeding the petitioner cannot be directed to make payment of ad interim maintenance amount and the litigation cost.

3. The Principal Judge, Family Court, Patna by impugned order allowed petition under Section 24 of the Hindu Marriage Act and directed petitioner to make payment of Rs. 10,000/- per month as ad interim maintenance and Rs. 10,000/- as litigation cost in one lump sum to the opposite party with a direction to deposit arrears of maintenance and litigation cost within fifteen days of the order.

4. Rejoinder to interlocutory application has been filed by the petitioner.

5. The point for consideration is, whether proceeding under Order 9 Rule 13 for setting aside ex parte decree of divorce dissolving marriage, is a proceeding under Hindu Marriage Act, an order under Section 24 of the Hindu Marriage Act is maintainable in such proceeding. I , Section 24 of the Hindu Marriage Act, 1955, deals with maintenance pendente lite and expenses of proceeding. In any proceeding under this Act, if husband or wife files an application and the Court is satisfied that either the wife or the husband has no independent income sufficient for her or his support and the necessary expenses of the proceeding, may, order the husband/wife to pay the expenses of the proceeding and reasonable monthly maintenance to the applicant during the proceeding having regard to the income of the parties.

6. Counsel for the petitioner has submitted that since parties are no more husband and wife such applications are not maintainable. Proceeding under Order 9 Rule 13 of the Civil Procedure Code is not the continuation of the suit. It is an independent proceeding. Unless such ex parte order is set aside, matrimonial suit, is restored, no order under Section 24 of the Hindu Marriage Act can