A party seeking maintenance under Section 24 of the Hindu Marriage Act, 1955 must have no means of subsistence and the other party must be in a position to provide maintenance.

( 1 ) INVOKING the revisional jurisdiction of this Court under Section 115 of the Code of Civil Procedure the petitioner husband has called in question the defensibility of the Order D/- 29-10-1999 passed by the learned 4th Additional District Judge, Jabalpur in C. S. No. 368-A/98 whereby he has refused to entertain the application under Section 24 of the Hindu Marriage Act, 1955 (hereinafter referred to as 'the Act') filed by the petitioner.

( 2 ) SANS unnecessary details the facts as have been unfolded are that the petitioner husband filed an application under Section 13 (1) (i) (ia) of the Act for dissolution of his marriage with the non-applicant on the ground of adultery and mental cruelty. The marriage between them was solemnized on 30-5-1996 at Jabalpur according to the Hindu Rites and Rituals. The non applicant is working as Technical Assistant in the State Forest Research Institute, Jabalpur and her carry home salary is Rs. 4725/- p. m. It is not in dispute that the petitioner husband was working as a private Secretary in the High Court of M. P. from October 1995 to July 1997 but resigned from the said post on 14-7-1997. It is also the case of the non-applicant that in their wed-lock a son named, Prithvipal Singh was born. The petitioner has disputed to be the father of Prithvipal Singh. The Court after hearing the parties directed for blood grouping of the petitioner to find out the father-hood but that has not been done so far due to non-availability of money for paying the fees of blood grouping. In any case that is not the controversy in the present petition.

( 3 ) DURING the pendency of the proceeding the petitioner filed an application under Section 24 of the Act for grant of maintenance as well as litigation expenses. The aforesaid prayer was resisted by the non-applicant wife on the ground that the petitioner has resigned from the job from the High Court to accept a better job somewhere at Delhi. It is also put forth by her that the petitioner, if makes efforts, can earn much more as he is a Stenographer in English and, there is scarcity of English Stenographers at Jabalpur.

( 4 ) BOTH the parties filed affidavits controverting each other's stand. The petitioner husband filed an affidavit stating that he has received Rs. 82,530/- from the High Court towards his G. P. F. However, he has denied to have received any Gratuity amount. The learned Trial Judge observed that the petitioner is capable of getting private job and is able enough to earn money to sustain himself. The Trial Court took note of the fact that the non-applicant wife is not maintaining herself alone but also the two year old son.

( 5 ) ASSAILING the aforesaid order, Mr. V. G. Tamaskar learned counsel for the petitioner has contended that the Trial Court has misdirected itself in appreciating the present condition of the husband and that alone makes the order vulnerable in the eye of law. Combating the aforesaid contention Miss. J. Iyer learned counsel for the non-applicant wife has contended that the petitioner has enough money to susain himself and to fight the litigation. It is also put forth by her that if he is not earning it is his own doing and he had deliberately incapacitated himself and on that ground he is not entitled to maintenance or litigation expenses as envisaged under Section 24 of the Act.

( 6 ) TO appreicate the rival submissions raised at the bar, it is apposite to quote Section 24 of the Act. It reads as under:section 24. Maintenance pendente lite and expenses of the proceedings.- Where in any proiceeding under this Act it appears to the Court that either the wife or the husband, as the cas may be, has no independent income sufficient for her or his support and the necessary expenses of the proceedings, 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 petition