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Himachal Pradesh High Court
OM PARKASH
Shushila Devi - Appellant
Versus
Dhani Ram - Respondent
Decided On : 07/10/1964
HINDU MARRIAGE ACT - SECTION 24 - MAINTENANCE PENDENTE LITE - APPEALABILITY - ORDER PASSED UNDER SECTION 24 IS APPEALABLE - MAINTENANCE PENDENTE LITE - QUANTUM - DISCRETION OF THE COURT - MAINTENANCE SHOULD BE FIXED AFTER TAKING INTO CONSIDERATION ALL THE RELEVANT CIRCUMSTANCES - NO HARD AND FAST RULE - EXPENSES OF PROCEEDINGS - QUANTUM - DISCRETION OF THE COURT - COURT CAN FORM A FAIR ESTIMATE OF THE EXPENSES.
Fact of the Case:
The appellant, a wife, filed a petition under Section 10 of the Hindu Marriage Act for judicial separation from her husband, respondent No. 1. She also moved an application under Section 24 of the Act for the grant of maintenance pendente lite and expenses of the proceedings. The appellant alleged that she was poor and had no independent income to support herself and for the necessary expenses of the proceedings and that respondent No. 1 was a rich man and his monthly income was Rs. 500/-. The appellant prayed that she be granted maintenance of Rs. 100/- per mensem, pendente lite, and a sum of Rs. 500/-, as expenses of the proceedings. The application was opposed by respondent No. 1, who denied that the appellant was poor and had no independent income for her support. He pleaded that he was employed as a compositor in the Government Printing Press, Simla, and his monthly emoluments were Rs. 175-50 nP. He further pleaded that he had to maintain his aged mother, his second wife and four children, and that nothing could be saved out of his meagre emoluments and that he was unable to pay anything to the appellant as maintenance and as expenses of the proceedings. The learned Senior Subordinate Judge did not accept the plea of respondent No. 1 that the appellant was managing the property of her father and was being remunerated for her services. He held that the appellant had no independent income and was entitled to get maintenance, pendente lite, and expenses of the proceedings. He awarded the appellant Rs. 15/- per mensem as maintenance, pendente lite, and a sum of Rs. 100/-, as expenses of the proceedings.
Finding of the Court:
The court held that the order passed under Section 24 of the Hindu Marriage Act is appealable. The court further held that the maintenance pendente lite should be fixed after taking into consideration all the relevant circumstances and there is no hard and fast rule for the award of maintenance. The court also held that the expenses of proceedings should be fixed by the court after taking into consideration all the relevant circumstances.
Issues: 1. Whether an order passed under Section 24 of the Hindu Marriage Act is appealable? 2. What are the principles for fixing maintenance pendente lite? 3. What are the principles for fixing expenses of proceedings?
Ratio Decidendi: 1. The right of appeal against an order passed under Section 24 of the Hindu Marriage Act is conferred by Section 28 of the Act. The words "under any law for the time being in force", occurring in Section 28, only mean that the forum for, and the procedure for the disposal of, appeals, filed under the Act will be determined, under the law, for the time being in force, on the subject. 2. The fixing of maintenance pendente lite is in the discretion of the Court and depends upon a number of circumstances which may vary in each case. The Court is, of course, to exercise its discretion judicially, on sound legal principles, and not arbitrarily or capriciously. 3. The expenses of proceedings should be fixed by the court after taking into consideration all the relevant circumstances.
Final Decision: The appeal was dismissed. The court held that the order passed by the lower court was not arbitrary or capricious and that the lower court had taken into consideration all the relevant circumstances while fixing the maintenance pendente lite and expenses of proceedings.
JUDGMENT :- This appeal is directed against an order of the learned Senior Subordinate Judge. Bilaspur, awarding maintenance pendente lite and expenses of proceedings, to the appellant.
2. The appellant had filed a petition, under Section 10 of the Hindu Marriage Act, (hereinafter referred to as the Act), for judicial separation, from respondent No. 1, her husband. She had also, moved an application, under Section 24 of the Act, for the grant of maintenance pendente lites and expenses of the proceedings. It was alleged, in the application, that the appellant was poor and had no independent income to support herself and for the necessary expenses of the proceedings and that respondent No. 1 was a rich man and his monthly income was Rs. 500/-. The appellant had prayed that she be granted maintenance of Rs. 100/- per mensem, pendente lite, and a sum of Rs. 500/-, as expenses of the proceedings.
3. The application was opposed, on behalf of respondent No. 1. It was denied that the appellant was poor and had no independent income for her support. It was alleged that the appellant was managing the entire property of her father, which consisted of considerable lands etc., and that, in lieu of her services, she was being looked after, by him. Respondent No. 1 denied that his monthly income was Rs. 500/-. He pleaded that he was employed as a compositor, in the Government Printing Press, Simla, and his monthly emoluments were Rs. 175-50 nP. He, further, pleaded that he had to maintain his aged mother, his second wife and four children, and that nothing could be, saved out of his meagre emoluments and that he was unable to pay anything to the appellant as maintenance and as expenses; of the proceedings.
4. The learned Senior Subordinate Judge did not accept the plea of respondent No. 1 that the appellant was managing the property of her father and was being remunerated for her services. He held that the appellant had no independent income and was entitled to get maintenance, pendente lite, and expenses of the proceedings. He awarded the appellant Rs. 15/- per mensem as maintenance, pendente lite, and a sum of Rs. 100/-, as expenses of the proceedings.
5. The appellant, being dissatisfied with the quantum of maintenance and the expenses of the proceedings, awarded to her, has come up in appeal. Her grievance is that the amounts awarded are inadequate.
6. A preliminary objection, that the appeal is not competent, as no appeal lies against an order, passed under Section 24 of the Act, has been taken up, on behalf of the respondents. The preliminary objection, in my opinion, is not well founded. Section 28 of the Act gives a right of appeal, against decrees and orders, made in proceedings, under the Act. That section reads :
"Enforcement of, and appeal from, decrees and orders.
All decrees and orders made by Court in any proceeding under this Act shall be enforced in like manner as the decrees and orders of the Court made in the exercise of the original civil jurisdiction are enforced, and may be appealed from under any law for the time being in force :
Provided that there shall be no appeal on the subject of costs only."
7. The contention of the learned counsel for the respondents that the words "under any law for the time being in force", occurring in the section, indicate that the right of appeal is dependent on some other law and that the section, itself, does not confer any such right, does not appear to be sound. The words, referred to, only mean, that the forum for, and the procedure for the disposal of, appeals, filed under the Act will be determined, under the law, for the time being in force, on the subject. In the case of Himachal Pradesh, these laws will be the Himachal Pradesh (Courts) Order, 1948 and the Code of Civil Procedure. If the words, referred to, are interpreted in the manner, suggested by the learned counsel for the respondents that the right of appeal will be dependent on some other law, then the proviso to the sectio
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