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1983 Supreme(Raj) 20
Rajasthan High Court
Dwarka Prasad J.
Bhanwar Lal - Appellant
Versus
Smt. Kamla Devi - Respondents
S.B. Civil First Appeal No. 83 of 1982
Decided On : January 20, 1983
B.R. Arora & S.N. Deedwania, for Appellant; R.R. Nagori, for Respondent.
Headnote:(a) Hindu Law — Hindu Marriage Act, 1955—S. 24—Interim Maintenance— Application must be decided before main petition is decided.(b) Hindu Law—Hindu Marriage Act, 1955—S. 24—Interim Maintenance— Court failed to decide early—Party should not be allowed to suffer for the delay caused by court.(c) Hindu Law—Hindu Marriage Act, 1955—S. 24—Interim Maintenance— Trial disposed off the main petition before disposing of the application for interim maintenance—Effect.(d) Hindu Law—Hindu Marriage Act, 1950S. 24—Interim Maintenance must be allowed from the date when application moved.
In my view even then the indigent wife could not be allowed to be deprived of her legitimate right of obtaining interim alimony and expenses of litigation, merely at the whim of the court or on account of the indiscretion exercised by the Court. I am not prepared to accept such an interpretation of the provisions of Section 24 which would deprive the litigant of her remedy without any fault on her part. The question in my humble view should be viewed in a broader perspective that it is the first and the highest duty of the court to take care that an act of the court should not prejudice the rights of any party or cause any injury to a party. The principle has aptly been described by the maxim "Actus curiae neminem gravabit" (an act of the Court shall prejudice no man). Such a principle is founded upon justice and good sense and affords a safe and certain guide for the administration of the law. 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. (paras 16 & 17)
It appears that the trial court heard both the matters together, namely, the question of withdrawal of the main petition as also the question of grant of interim maintenance and litigation expenses and the survival of the petition for interim maintenance after the application for withdrawal of the main petition was filed. The trial court should have decided the application under Section 24 first before proceeding to pass the final order allowing the withdrawal of the main petition. The emphasis of the learned counsel for the husband is that although both the orders fixing interim maintenance as also allowing withdrawal of the main petition were passed on the same day, yet a reading of the two orders shows that the order allowing the withdrawal of the divorce petition was passed earlier in point of time as the same finds a reference in the order fixing the amount of interim maintenance. Learned counsel appears to be right in his submission, but the trial court was definitely wrong in disposing of the main petition earlier to the application under Section 24 and in this revision petition I am not prepared to hold that the court is powerless to decide the question of interim maintenance notwithstanding the fact that the main petition was disposed of earlier by the trial court on the same day. The wife in the present case had vigilantly prosecuted her application under Section 24 and merely because of the indiscretion of the trial court, she could not be deprived of her right to obtain interim maintenance, and litigation expenses. (para 21)
With regard to the period for which the interim maintenance amount should be awarded, some courts have taken the view that the respondent spouse is entitled to get interim maintenance from the date on which the service of the main petition is effected upon the respondent. But in my view the interim maintenance should be awarded to the indigent spouse from the date when the application under Section 24 of the Act is actually moved. There may be cases where the respondent may not be in justifiable need of interim maintenance during the earlier stages of the matrimonial litigation or may unduly delay the filing of an application under Section 24 of the interim maintenance for several years after the filing of the main petition and in all such cases it would not be proper to aware a lump sum amount to the respondent spouse who has neglected to file an application under Section 24 of the Act soon after the service is effected upon her of the notice of the main petition. (para 23)
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 Sec. 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 Dist. Judge, Pali, alongwith the cross-objection 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 respondent 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 December 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. Kamladevi, who will now be referred to as "the wife", filed an application on April 25-4-1980 under sec. 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 to 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 application 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 dates fixed in that court. On October 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 maintenance to the wife from Decembe
