The substance of the claim for maintenance is more important than the form, and the court has discretion in determining the date from which maintenance is payable.

ORDER

1. Heard argument and Judgment is as follows.

2. Petitioners are the applicants in Misc. Case No. 104 of 2006 u/s 24 of the Hindu Marriage Act, 1955 (in short 'the Act').That application was filed in C.P. No. 310 of 2006. Petitioner No. 1 filed that C.P. for restitution of conjugal rights. Together with petition u/s 9 of the Act she filed the application u/s 24 of the Act. The Respondent-Opposite Party entered appearance in that proceeding on 08.12.2006 filed his written statement and also contested the application u/s 24 of the Act.

3. On consideration of submission of both the parties, Learned Judge, Family Court, Cuttack awarded interim maintenance ' Rs. 800 per month to the Petitioner No. 1 and ' Rs. 400 per month to the Petitioner No. 2 on the ground that the relationship between the parties are admitted and the husband has a net salary of Rs. 7655. Learned Counsel for the Opposite Party-husband states that Family Court, Cuttack did not consider the objection of the Opposite Party on the issue that the child is not entitled to maintenance u/s 24 of the Act in view of the decision of this Court in the case of Purusottam Das Agarwala Vs. Smt. Puspa Devi, wherein it has been held that order of maintenance to a child is not within the purview of Section 24 of the Act and accordingly the order for such maintenance was refused.

4. In course of submissions Dr. Das, Learned Counsel for the Petitioner relies on the case of Smt. Jasbir Kaur Sehgal Vs. District Judge, Dehradun and others, in which Hon'ble Apex Court has propounded that;

Under the Hindu Adoptions and Maintenance Act, 1956 it is the obligation of a person to maintain his unmarried daughter if she is unable to maintain herself. In this case since the wife has no income of her own, it is the obligation of the husband to maintain her and her two unmarried daughters one of whom is living with wife and one with him. Section 24 of the Act no doubt talks of maintenance of wife during the pendency of the proceedings but this Section, in our view, cannot be read in isolation and cannot be given restricted meaning to whole that it is the maintenance of the wife alone and no one else. Since, wife is maintaining the eldest unmarried daughter, her right to claim maintenance would include her own maintenance and that of her daughters. This fact has to be kept in view while fixing the maintenance pendente lite for the wife. We are aware of the provisions of Section 26 of the Act providing for custody of minor children, their maintenance and education but that Section operates in its own field.

5. Section 26 of the Act provides that:

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 alter the decree, upon application by petition for the purpose, make from time to time all such orders and provisions with decree, shall, as far as possible, be disposed of within sixty days from the date of service of notice on the Respondent.

6. It is clearly readable from Section 26 that interim orders can be passed by the Court relating to maintenance of minor children in a proceeding for Restitution of Conjugal Right, Judicial Separation or Divorce. It is not in dispute that Petitioners jointly applied for interim maintenance. Though in the application it was mentioned that interim maintenance is prayed for u/s 24 of the Act, but that lacuna alone is not sufficient to refuse maintenance to the child if she is entitled to maintenance u/s 26 of the Act. In such a case, it is the substance and not the form which is very much material while considering the prayer for interim maintenance. Therefore we find no illegality in the impugned order relating to grant of interim maintenance to the minor child.

7. Petitioners' contention is for paymen