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High Court Of Rajasthan
Judgename : Dwarka Prasad
BHANWAR LAL - Appellant
Versus
KAMLA DEVI - Respondent
Civil First Appeal 83 Of 1982
Decided On : 01/21/1983
HINDU MARRIAGE ACT, 1955 - SECTION 24 - INTERIM MAINTENANCE - APPLICATION - JURISDICTION - WITHDRAWAL OF MAIN PETITION - EFFECT - COURT'S DUTY - ACTUS CURIAE NEMINEM GRAVABIT - QUANTUM OF INTERIM MAINTENANCE - LITIGATION EXPENSES.
Fact of the Case:
Husband filed a petition for divorce under Section 13 of the Hindu Marriage Act, 1955. During the pendency of the proceedings, the wife filed an application under Section 24 of the Act for grant of interim maintenance. The trial court granted Rs. 400/- per month as interim maintenance to the wife from the date of the application. The husband filed a revision petition in the High Court, which was allowed and the matter was remanded to the trial court with the direction that it should permit the cross-examination of the deponents who had filed affidavits in support of the application under Section 24 of the Act. On the date fixed by the trial court, the husband filed an application seeking permission to withdraw the petition filed by him under Section 13 of the Act for a decree for divorce. The husband also filed another application stating that no interim maintenance could be awarded to the wife since he was withdrawing the main petition for divorce. The trial court dismissed the petition for divorce under Section 13 of the Act, as withdrawn. By another order passed on the same day, the trial court awarded Rs. 400/- as interim maintenance to the wife from December 21, 1979 (the date when the divorce petition was filed) up to August 31, 1981 (the date when the notice of the application for withdrawal was given to the wife).
Finding of the Court:
1. The court has jurisdiction to decide the matters before it according to law, but not in violation of law or to defeat the rights of a party by its action or inaction. 2. The court by its laches or mistake cannot take away the right of a party or cause an injury to the party so as to leave it without interest or remedy. 3. The court is bound to interfere in the revisional jurisdiction with the order dismissing the application for interim maintenance and litigation expenses and determine the amount of interim alimony and litigation expenses while hearing the revision petition. 4. The wife is entitled to get interim maintenance from the date when the application under Section 24 of the Act is actually moved. 5. The wife is entitled to get a sum of Rs. 400/- towards litigation expenses of the trial court.
Issues: 1. Whether the trial court had jurisdiction to pass an order regarding payment of arrears of interim maintenance after the petition for divorce filed by the husband is unconditionally withdrawn by him? 2. Whether the wife is entitled to interim maintenance from the date of filing of the main petition or from the date of filing of the application under Section 24 of the Act? 3. Whether the wife is entitled to litigation expenses?
Ratio Decidendi: 1. The court has jurisdiction to decide the matters before it according to law, but not in violation of law or to defeat the rights of a party by its action or inaction. 2. The court by its laches or mistake cannot take away the right of a party or cause an injury to the party so as to leave it without interest or remedy. 3. The court is bound to interfere in the revisional jurisdiction with the order dismissing the application for interim maintenance and litigation expenses and determine the amount of interim alimony and litigation expenses while hearing the revision petition. 4. The wife is entitled to get interim maintenance from the date when the application under Section 24 of the Act is actually moved. 5. The wife is entitled to get a sum of Rs. 400/- towards litigation expenses of the trial court.
Final Decision: Both the revision petitions are partly allowed and the order passed by the learned District Judge, Pali dated October 1, 1982 fixing the amount of interim maintenance under Section 24 of the Act is modified and the wife is allowed interim maintenance from April 25, 1980 to August 31, 1981 @ Rs. 200/- per month and a further sum of Rs. 400/- is allowed to her as litigation expenses of the trial court. The husband is directed to make payment of the aforesaid sums of money to the wife within 4 months, subject to adjustment of the amount already paid.
DWARKA PRASAD, J.
( 1 ) THIS appeal has been filed against an order passed by the learned District Judge, Pali on an application under Section 24 of the Hindu Marriage Act, 1955 (hereinafter referred to as the Act ).
( 2 ) IT is not, disputed by the learned counsel for the appellant that under the amended provisions of Section 28 of the Act, no appeal lies against an order passed on an application under Section 24 of the Act. He, however, prays that the appeal may be treated as a revision petition. Learned counsel for the respondent has no objection to the appeal being treated as a revision petition, but he also urges that he has filed cross-objection, which may also be treated as a separate revision petition, inasmuch as the respondent has paid full court fees payable on a revision petition and has also filed a copy of the order passed by the learned District Judge, pali, along with the cross-objections and further the said cross-objections were filed within the time prescribed under the law for filing a revision petition in this Court. I, therefore, direct that the appeal filed by the appellant and the cross-objections filed by the respondents may be treated as separate revision petitions and may be separately numbered. Both the revision petitions were heard together as they are directed against the very same order passed by the District Judge, Pali.
( 3 ) THE principal question, which has been argued by learned counsel for Bhanwarlal, who will hereinafter be referred to as "the husband", is that the trial court had no jurisdiction to pass an order regarding payment Of arrears of interim maintenance after the petition for divorce filed by the husband is unconditionally withdrawn by him. The facts, which are relevant to the present dispute, are that the husband filed a petition on Dec. 21, 1979 under Section 13 of the Act seeking a decree for divorce in the Court of District Judge, Pali. During the pendency of the proceedings, Smt. Kamla Devi, who will now be referred to as "the wife", filed an application on April 25, 1980 under Section 24 of the Act for grant of interim maintenance. The learned District Judge passed an order on May 25, 1981 granting Rs. 400/-per month as interim maintenance to the wife from the date of the application. The husband filed a revision petition in this Court, which was allowed by a learned single Judge by his order dated July 27, 1981 and the matter was remanded t0 the learned District Judge with the direction that he should permit the cross-examination of the deponents, who had filed affidavits in support of the application under Section 24 of the Act and similar opportunity of cross-examination should also be afforded to the other party. The parties were directed by this Court to appear before the learned District Judge, Pali on August 10, 1981 for further proceedings. On that day, when the parties appeared, the husband filed an application seeking permission to withdraw the petition filed by him under Section 13 of the Act for a decree for divorce. The husband also filed another application on that date stating that no interim maintenance could be awarded to the wife since he was withdrawing the main petition for divorce. A copy of the aforesaid applications was supplied to the learned counsel for the wife on August 31, 1981. Thereafter the husband and his counsel withdrew themselves from the proceedings and failed to appear before the learned District Judge on the subsequent date fixed in that court. On Oct. 1, 1982, the learned District Judge, Pali heard learned counsel for the wife in respect of the application for withdrawal filed by the husband and also in respect of the application for grant of interim maintenance under Section 24 of the Act and passed two separate orders. By one of these orders he dismissed the petition for divorce under Section 13 of the Act, as withdrawn. By another order passed on the same day, the learned District Judge awarded Rs. 400/-as interim mainte
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