An application under Section 24 of the Hindu Marriage Act for interim alimony and expenses of proceedings is to be disposed of in the first instance and cannot be backed on with the trial of the main petition itself.

JUDGMENT:- These two civil miscellaneous appeals by a Hindu wife arise under peculiar circumstances The husband filed a petition under Section 10 (1) of the Hindu Marriage Act (hereinafter referred to as the Act), for judicial separation on the ground that the wife had been guilty of cruelty towards him. The wife contested the petition refuting the allegations made by the husband against her. She also filed an application under Section 24 of the Act for interim alimony and expenses of proceedings. The husband filed a counter-affidavit opposing the aforesaid application under Section 24. Peculiarly enough, the court below did not hear this application and passed no orders thereon. It had been adjourning the application along with the main petition for judicial separation from time to time. In fact, on behalf of the wife, an application for advancing the hearing of the above said application, viz., the application under Section 24 was also filed, as the court below had adjourned the said application along with the main petition to a particular date. It may be noted that the lower court fixed the date finally for the trial of the main petition for judicial separation. Naturally, the wife wanted her application under Section 24 to be taken up in the first instance and disposed of so that she can get ready for the trial of the main petition. Unfortunately the court below not realising that an application under Section 24 has to be decided in the first instance before ever the main petition is taken up for trial had adjourned even the application to advance the hearing for the application under Section 24 to the date on which the main petition stood posted. No orders were passed on the application under Section 24.

2. The main petition stood posted for trial in September 1968. The application under Section 24 for interim alimony and expenses had been filed even in 1967. Still no orders had been passed on the said application. From September 1968 the main petition came to be adjourned to November, 1968 as the final date for trial of the said petition. It is after September 1968, the application for advancing the hearing of the application under Sec.24 came to be filed. However, as I said no order was passed on any of these applications.

3. On the date on which the main petition and the application under Sec.24 were taken up (November 1968) it had been represented on behalf of the wife that her counsel was ready to argue the application and not ready to get on with the trial of the main petition. The learned Judge of the City Civil Court was not prepared to concede the above request. He directed the counsel for the wife to report no instructions. However, the counsel rightly said that he was not reporting no instructions, but still he had been insisting that the application under Sec.24 should be taken up for hearing and the main petition adjourned to a subsequent date. As the court below wanted the main petition to be heard in the first instance the counsel withdraw. The wife was also absent from court. Then the court set the wife, who is the respondent in the main petition, ex parte and after examining the husband as P.W. 1 gave a decree for judicial separation.

4. Needless to say that the course adopted by the court below is against the provisions of the Act. Though in Section 24 there are no words specifically saying that an application under that section has to be disposed of prior to the main petition being taken up for trial, a perusal of that section would go to show that an application under that section is intended to be disposed of in the first instance. The marginal note for that section is: "Maintenance pendente lite and expenses of proceedings."

The section opens with the words:-

"Where in any proceeding under this Act it appears ........."

Therefore, it is clear that an application under Section 24 is to be disposed of during the pendency of the proceedings, viz., the main petition. It is not right to say t