On an application claiming maintenance for the husband or the wife, as the case may be, and for the child, maintenance can be granted to the child howsoever labelled the petition may be. The substance matters, not the form. If there be authority under the provisions, there is an end of the matter.

R. C. PATNAIK, J.

( 1 ) THIS revision by the husband arises out of an order granting interim, maintenance to the wife and the child and the expenses of the proceeding on a petition filed under Section 24 of the Hindu Marriage Act, 1955 (hereinafter referred to as the 'act' ).

( 2 ) THE petitioner filed Original Suit No. 9 of 1981 under Section 13 of the Act for a decree for divorce. During the pendency of the proceeding, the opposite party filed an application for pendente life maintenance for her and her child and expenses of the proceeding. She alleged that the petitioner had neglected her and the child and as she had no income to support her and the child, maintenance pendente lite should be granted. Upon a consideration of the evidence adduced by the parties, the learned Subordinate Judge directed payment of pendente lite maintenance at the rate of Rs. 150/- per month to the wife and at the rate of Rs. 80/- per month to the child. A consolidated sum of Rs. 300/- was awarded towards expenses of the proceeding. It may be noted here that the petitioner disputed that he had sired the child.

( 3 ) IN this revision the challenge of the petitioner is to the grant of pendente lite maintenance to the child, on a petition filed under Section 24 of the Act. He has also challenged the quantum of maintenance as excessive.

( 4 ) MR. Sahu, learned counsel for the petitioner, contends that having regard to the provisions contained in Section 24, the court was incompetent to grant pendente lite maintenance to the child. He relies on a Bench decision of this Court in the case of Akasam Chinna Babu v. Akasam Parbati, AIR 1967 Orissa 163, where this Court held (para 6):-

"section 24, however, does not authorise grant of any pendente lite maintenance to the daughter and in terms applies either to the wife or the husband as the case may be. . . . . . "

Section 24 of the Act is as follows:-

"maintenance 'pendente lite' and expenses of the proceedings.-Where in any proceeding under this Act' it appears to the court that either the wife or the

husband, as the case may be, has no independent income sufficient for her or his support and the necessary expenses of the proceeding, it may, on the application of the wife or the husband, order the respondent to pay to the petitioner the expenses of the proceeding, and monthly during the proceeding such sum as, having regard to the petitioner's own income and the income of the respondent, it may seem to the court to be reasonable. "

( 5 ) MR. N. K. Mishra, learned counsel for the opposite party, however, contends that pendente lite maintenance can be awarded On an application under Section 24 of the Act. He has further that the provisions contained in Section 26 of the Act must not he lost sight of while considering the question of grant of pendente lite maintenance to the child on an application made by the wife or the husband under Section 24. His contention is that the application filed by the wife though labelled as one under Section 24, having regard to the averments, should be treated and construed as one under Sections 24 and 26 of the Act. Mr. Misra further urged that the provisions contained in Section 26 were not brought to the notice of the Bench of this Court which decided Akasam's case (supra) and so, the said decision is not binding. Section 26 of the Act reads as follows:--

"section 26. Custody of children.--in any proceeding under this Act, the court may, from time to time, pass such interim orders and make such provisions in the decree as it may deem just and proper with respect to the custody, maintenance and education of minor children, consistently with their wishes, wherever possible, and may, after the decree, upon application by petition for the purpose, make from time to time, all such orders and provisions with respect to the custody, maintenance and education of such children as might have been made by such decree or interim orders in case the proceeding for obtaining such decre