Jagat Narayan, J.—This revision application was filed as civil miscellaneous first appeal purporting to be against an order of the learned District Judge, Jodhpur, refusing to grant maintenance pendente lite and expenses of proceedings to the applicant under sec. 24 of the Hindu Marriage Act 1955. It was treated as a revision on the application of the applicant since an order passed under sec. 24 of the Hindu Marriage Act, 1955, is not an appealable order. The application has been contested on behalf of the respondent.

2. The facts giving rise to the present application are these. Smt. Mukan kunwar applicant is the legally wedded wife of Ajeetchand, who filed a petition against her under sec. 12 of the Hindu Marriage Act. 1955, for the annulment of their marriage on the ground that the wife was impotent at the time of marriage and continued to be so until the institution of the proceeding. The applicant filed an application under sec. 24 for maintenance pendent lite and expenses of proceedings. The learned District Judge found that the applicant had no independent income at all and the net monthly income of the respondent was Rs. 107/- per month. Yet he declined to grant any maintenance pendente lite and expenses of proceedings on the ground that the wife had refused to go and live with the husband, that an attempt to bring about reconciliation between the two had failed, that prior to the husbands petitions for divorce the applicant took no steps to claim maintenance from him and that she was being maintained by her parents. On behalf of the applicant it is urged that the reasons given by the learned District Judge are no reasons at all for depriving her of maintenance pendente lite and expenses of proceedings and that the order is arbitrary and capricious. On behalf of the respondent it was contended that the order passed by the learned District Judge was within his jurisdiction and there can be no interference with the exercise of his discretion under sec. 115 C.P.C.

3. Sec. 24 of the Hindu Marriage Act, 1955 runs as follows:—

"Maintenance pendente lite and expenses of proceedings--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 proceeding, it may, on the application of the wife or the husband, order the respondent to pay to the petitioner the expenses of the proceeding, and monthly, during the proceeding, such sum as having regard to the petitioners, own income and the income of the respondent, it may seem to the Court to be reasonable."

4. The award of maintenance pendente lite and expenses of proceedings under the above provision is no doubt in the discretion of the Court. But this discretion must be a judicial one, exercised on sound legal principles and not by caprice or chance or humour. No hard and fast rules can however be laid down, the exercise of the discretion depending upon the circumstances of each particular case.

5. First the Court has to consider whether or not it should grant maintenance pendente lite and expenses of proceedings under this section at all. The leading principle to remember in this connection is that if the applicant has no independent means he or she is entitled to maintenance and expenses under this section, unless good cause is shown for depriving him or her of it. What can be a good cause for this purpose has also been the subject of a series of decisions in matrimonial cases and Courts have held that the matters that may properly be considered are (1) whether the applicant is being supported by an adulteror, and (2) whether the respondent has not sufficient means.(See Manchandas Commentary on S. 36 of the Indian Divorce Act).

6. If the Court comes to the conclusion that the applicant is entitled to maintenance and expenses then it will have to consider their quantum. As for maintenance pendente lite courts generally allow it at o

Click Here to Read the rest of this document