( 1 ) THE respondent-husband filed an application for divorce under Section 13 of the Hindu Marriage Act, 1955 (for brevity 'the Act') and the petitioner-wife initiated civil action under Section 24 of the act before the learned 4th Additional District Judge, Chhatarpur forming the subject-matter of H. M. Case No. 13-A/2003. During the pendency of the said proceedings the wife-petitioner filed an application under Section 24 of the Act for grant of interim maintenance and litigation expenses. The learned District Judge by order dated 25-4-2003 granted maintenance allowance at the rate of Rs. 500/- per month and Rs. 1000/- towards litigation expenses.

( 2 ) AFTER the said order was passed as per annexure-P/1 the respondent filed an application under Section 151 of the Code of civil Procedure (for short 'the CPC') on 15-9-2003 highlighting that the behaviour of the wife/non-applicant was extremely cruel to him and in fact, she had tried to extinguish his life spark by administering poisonous substance to the wheat. The husband lodged an FIR at the concerned Police station which registered a crime under Section 328 of the Indian Penal Code (in short 'the IPC') and got her arrested. The learned sessions Judge by judgment dated 5-9-2003 passed in Sessions Trial No. 271 /2002 convicted her for the offence and sentenced her to undergo rigorous imprisonment for three years and ordered her to pay a fine of Rs. 1000/ -. It was contended as conviction has been recorded against the wife she would not be entitled to maintenance and, therefore, the order of interim maintenance should be vacated and he be discharged from paying maintenance allowance.

( 3 ) THE petitioner filed a reply on 7-10-2003 to the application filed under Section 151 of the CPC and controverted the allegation. It was put forth that an appeal against the order of conviction has been preferred before the appellate Court and the said appeal has been admitted. She has been enlarged on bail and hence, the order granting maintenance allowance by the Court below has to be confirmed and there was no justification or warrant to recall the order. The learned Trial Judge took note of the conviction and allowed the application of the husband-respondent as per impugned order dated 13-11-2003 contained in Annexure-P/4. The Court below allowed the application directing stoppage of grant of maintenance allowance from the date of order but did no overturn the order as per the grant of litigation expenses.

( 4 ) IT is contended in the petition that the order passed by the learned 4th Additional district Judge, Chhatarpur is vitiated as the said order clearly exposits non-application of mind. It is the stand in the petition that the petitioner had been enlarged on bail during trial and also after conviction and hence, it would not be presumed that she is innocent, on that ground the maintenance allowance should not be stopped.

( 5 ) I have heard Mr. Arvind Singh, learned counsel for the petitioner and Mr. Ashok lalwani, learned counsel for the respondent.

( 6 ) MR. Singh, learned counsel appearing for the petitioner has propounded that the learned Family Judge has grossly erred by recalling the order since the subsequent factum that has been taken note of does not really come within the ambit and sweep of change that would have any kind of effect or import on grant of maintenance allowance as envisaged in Section 24 of the Act, it is proponed by him that the concept of discretion has been broadened by the Court below beyond the statutory provision which is impermissible and hence, the order has to pave the path of vitiation. .

( 7 ) MR. Lalwani, learned counsel appearing for the husband-respondent submitted that if the language of Section 24 is read in the proper perspective, it would go a long way to show that in every case the Court is not obligated to grant maintenance allowance and the power invested with the Court is discretionary. Pyramiding the aforesaid submission, it is canvasse

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