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High Court Of Calcutta
Tarun Chatterjee
MALAYA DAS (NEE) GHOSH - Appellant
Versus
BASUDEB DAS - Respondent
C. O. 1711 Of 1994
Decided On : 09/30/1996
MAINTENANCE PENDENTE LITE - HINDU MARRIAGE ACT - SECTIONS 24, 25, 26 - INTERPRETATION - EFFECT OF EX PARTE DECREE ON MAINTENANCE ORDER - JURISDICTION OF COURT TO GRANT MAINTENANCE AFTER DECREE - APPLICABILITY OF SECTIONS 25, 26 AFTER DECREE - DISTINCTION BETWEEN MAINTENANCE PENDENTE LITE AND PERMANENT MAINTENANCE.
Fact of the Case:
The wife filed a revisional application challenging an order of the trial court dismissing her application for an increase in maintenance pendente lite under section 24 of the Hindu Marriage Act, 1955 (the Act). The revisional application was filed after an ex parte decree of divorce was passed in favor of the husband under section 13 of the Act.
Finding of the Court:
The court held that the revisional application had become infructuous due to the ex parte decree of divorce. The court interpreted sections 24, 25, and 26 of the Act and concluded that the court's jurisdiction to grant maintenance pendente lite under section 24 ceases after the matrimonial proceeding is disposed of. The court further held that sections 25 and 26 provide for maintenance after the decree or at the time of passing the decree, and that the petitioner could approach the court under the Hindu Maintenance and Adoption Act for getting maintenance.
Issues: 1. Whether the revisional application has become infructuous due to the ex parte decree of divorce? 2. Whether the court has jurisdiction to grant maintenance pendente lite under section 24 of the Act after the matrimonial proceeding is disposed of?
Ratio Decidendi: 1. The court held that the revisional application had become infructuous due to the ex parte decree of divorce. The court reasoned that the interlocutory orders, including the order challenged in the revisional application, had merged with the ex parte decree. The court further held that the petitioner could not rely on the fact that the suit was decreed ex parte, as she had not filed an application to set aside the ex parte decree. 2. The court held that the court's jurisdiction to grant maintenance pendente lite under section 24 of the Act ceases after the matrimonial proceeding is disposed of. The court interpreted section 24 and concluded that the legislature intended to retain the jurisdiction of the court only where a matrimonial proceeding is or was pending, and not when the proceeding is over. The court distinguished between maintenance pendente lite and permanent maintenance, and held that section 24 deals with maintenance during the proceeding, while section 25 deals with payment of maintenance after or at the time of the decree is passed.
Final Decision: The revisional application was dismissed as it had become infructuous. The court clarified that its order would not prevent the petitioner from approaching the court for maintenance under Order 9 Rule 13 of the Code of Civil Procedure or under other available remedies.
( 1 ) -THIS revisional application is directed against an order being order No 102 dated 23rd May, 1994 passed by Sri. 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 date 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 pendent lite was filed by the petitioner as, according to the petitioner, the salary of the husband/opposite party was substantially increased in the mean time. By an order dated 23rd May, 1994 the aforesaid application for increase of alimony pendent lite was dismissed by the trial Court. Feeling aggrieved by the aforesaid order the wife/petiotioner 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 parry brought to my notice the fact of decreeing the suit ex parte in favour of the plaintiff/opposite parry 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, 1997 is declared null and void. "
( 4 ) THE learned counsel for the plaintiff/opposite parry relying on this ex parte decree submitted that the revisional application which arose out of an interlocutory order had become infractuous 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 favou
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