Interim maintenance can be awarded to minor children under section 26 of the Hindu Marriage Act, 1955, when it is deemed just and proper.

N. M. Kasliwal, C. J.—On the request made by the learned Counsel for both the parties, arguments were heard on the merits of the main appeal.

2. Mrs. Rajni Abrol, wife of the respondent Shri Adarsh Abrol, has filed the present appeal under section 28 of the Hindu Marriage Act, 1955 (hereinafter referred to as ‘the Act), against the order of Additional District Judge (II) Simla dated July 2!, 1988. A preliminary objection was raised on behalf of the respondent that no appeal is maintainable against the impugaed order, which was passed under section 24 of the Act. With regard to this objection, Mr. Sood, learned counsel for the appellant, submitted that this appeal may be treated as revision, in case no appeal was maintainable. la view of the above circumstances, this appeal was permitted to be considered as revision and learned counsel for both the parties addressed their arguments treating it as a revision.

3. The short controversy raised in the present case is with regard to the grant of interim maintenance for the minor daughter who is at present in the custody of her mother. A petition for divorce had been filed by the husband on the ground of cruelty against the wife. During the pendency of the petition, an application was submitted on behalf of the wife for the grant of maintenance under section 24 of the Act. The learned Additional District Judge took the view that the wife was also an earning member as she was employed as a clerk in the State Bank of India at Simla and as such she was not entitled to any interim maintenance under section 24 of the Act. The learned Additional District Judge also took the view that so far as the minor daughter is concerned, she is not entitled to get any maintenance under the provisions of section 24 of the Act.

4. Mr. Sood, appearing on behalf of the petitioner-wife, contended that the lower court committed a material irregularity in the exercise of its jurisdiction in not awarding maintenance to the minor daughter. It was submitted that such maintenance could have been awarded under section 26 of the Act. In support of the above contention, reliance has been placed on Babulal v. Smt. Prem Lata, AIR 1974 Raj 93 ; Dr. D. Thimmappa v. R. Naga-veni, AIR 1976 Kar 215 ; Mahendra Kumar Mishra v. Smt. Snehlata Kar, AIR 1983 Ori 74 ; Manoj Kr. Jaiswal v. Smt. Lila Jaiswal, AIR 1987 Cal. 230 and Gulab Chand v. Sampati Devi, AIR 1988 J & K 22). It was also argued that the husband was working as an Auditor in the office of the Accountant General, at Simla and getting a salary of Rs. 1,943 per month and as such he was liable to pay maintenance for the minor daughter.

5. On the other hand, Shri Rajeev Mehta, appearing on behalf of the husband contended that no maintenance can be allowed to a minor daughter under the provisions of section 24 of the Act. It was also submitted that no application was filed under the provisions of section 24 of the Act. It was also submitted that no application was filed under section 26 of the Act before the lower court and no argument was raised for treating the application under section 26 of the Act and as such the lower court did not commit any error of jurisdiction in passing the impugned order. Reliance in support of his contention was placed on Akasam Chinna v. Akasam Parbati, AIR 1967 Ori 163 ; Bankim Chandra Roy v. Smt. Anjali Roy, AIR 1972 Pat 80 and Puran Chand v. Mst. Kamla Devi, AIR 1981 J & K

5. In the alternative, it was also argued by Mr. Mehta that even if this Honble Court may be inclined to take the view that interim maintenance could be awarded to the appellant for the maintenance of the minor daughter, the case should be remanded back as the husband was always ready and willing to keep the minor daughter with him. As the custody of the minor daughter was wrongly and unlawfully denied by the wife herself, as such she was not entitled to claim any maintenance for the minor daughter.

6. I have given my careful consideration to the authorities cited a