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Madras High Court
MAHARAJAN
A.R.Munuswamy Rajoo - Appellant
Versus
Hamsa Rani - Respondent
Decided On : 02/15/1974
HINDU MARRIAGE ACT - SECTION 25 - MAINTENANCE - SPOUSE REMAINS UNMARRIED - INTERPRETATION - SPOUSE ENTITLED TO MAINTENANCE EVEN IF MARITAL TIE CONTINUES - COURT'S POWER TO AWARD MAINTENANCE IN ANY PROCEEDING UNDER THE ACT - CHILD CUSTODY AND MAINTENANCE - FACTORS CONSIDERED.
Fact of the Case:
The appellant, Munuswami Rajoo, filed a petition for dissolution of marriage against his wife, Hamsa Rani, on the ground of desertion and adultery. The petition was dismissed due to the appellant's failure to pay litigation expenses and interim maintenance. The respondent-wife filed a petition for restitution of conjugal rights, which was granted by the trial court. The appellant did not appeal against this decree. Subsequently, the respondent filed an application under Section 25 of the Hindu Marriage Act for maintenance for herself and her child. The trial court and the first appellate court granted maintenance to the respondent and the child.
Finding of the Court:
The court held that the application for maintenance filed by the respondent was maintainable, even though it was filed after the disposal of the main petition for restitution of conjugal rights. The court also held that the court had the power to award maintenance to the spouse even if the marital tie continued to bind both parties. The court further held that the appellant was liable to pay maintenance for the child, even though Section 25 of the Hindu Marriage Act did not specifically provide for child maintenance. The court also held that the appellant's failure to file an original petition instead of an interlocutory application, as required by the Madras High Court rules, was a procedural error that did not affect the merits of the case or the jurisdiction of the court.
Issues: 1. Whether an application for maintenance filed after the disposal of the main petition for restitution of conjugal rights is maintainable? 2. Whether the court has the power to award maintenance to the spouse even if the marital tie continues to bind both parties? 3. Whether the appellant is liable to pay maintenance for the child, even though Section 25 of the Hindu Marriage Act does not specifically provide for child maintenance? 4. Whether the appellant's failure to file an original petition instead of an interlocutory application, as required by the Madras High Court rules, is a fatal error?
Ratio Decidendi: 1. Section 25 of the Hindu Marriage Act empowers the court to award maintenance to the spouse at the time of passing any decree or at any time subsequent thereto. The expression 'any decree' in Section 25 is broad enough to cover any decree of divorce, nullity, judicial separation, or restitution of conjugal rights. 2. The phrase 'while the applicant remains unmarried' in Section 25 of the Hindu Marriage Act should be construed to mean 'so long as the applicant continues to remain entitled, in the eye of law to maintenance'. 3. Section 26 of the Hindu Marriage Act empowers the court to pass orders with respect to the custody, maintenance, and education of minor children, even after the main proceeding under the Act has come to an end. 4. The failure of the respondent to file an original petition instead of an interlocutory application, as required by the Madras High Court rules, was a procedural error that did not affect the merits of the case or the jurisdiction of the court.
Final Decision: The appeal was dismissed with costs. Leave to appeal to the Supreme Court was refused.
2. I shall first deal with the objection relating to the quantum of the amount fixed, Admittedly, the appellant is an employee of the Food Corporation of India drawing a monthly salary of about Rs. 501 inclusive of all allowances. His case is that he is very sickly and that he has to support Sundarammal, his father's concubine, who has been bringing him up from his childhood. It is unnecessary to consider whether Sundarammal is the concubine of the appellant as alleged by the respondent or the concubine of his father. Assuming that it is his duty to support that woman, his duty to support his lawfully wedded wife and his own legitimate son is even more imperative. The amount of Rs. 100 awarded for the maintenance of his wife and child constituted but 1/5th of the gross monthly income that he is getting. It is true that the respondent owns 35 cents of land. There is no definite evidence as to the income it would fetch. Having regard to the extent of the land and its quality, I do not think that it would fetch any considerable income. Both the courts below have, with reference to the relevant legal principles, quantified the maintenance amount at Rs. 75 per month for the respondent and Rs. 25 per month for the child. I see little reason to interfere with the quantum concurrently fixed by both the courts below.
3. It is next contended that an interlocutory application filed for alimony and maintenance after the disposal of O. P. 235 of 1968 is not maintainable. I am unable to agree.
4. Section 25 of the Hindu Marriage Act, 1955, runs as follows-
"(1) Any court exercising jurisdiction under this Act may, at the time of passing any decree or
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