Filing an application is a mandatory requirement for the court to grant maintenance under section 25 of the Hindu Marriage Act, 1955.

Dipak Misra, J.

1. Being arrieved by the judgment passed by a learned Single Judge of this Court in F.A. No. 299/95, reversing the judgment and decree passed by the learned III Addl. Judge, to the Court of District Judge, Raipur granting maintenance to wife and child, the defendant-wife is in appeal.

2. The marriage between the appellant and respondent was solemnised on 6.7.88 and in their wedlock a son was born. With the passage of time the parties started drifting away from each other and as the breach broadened without ameliorative mend, an attempt was made by the husband to restore the relationship and accordingly he filed a suit for restitution of conjugal right which was duly decreed. The decree remained a decree on paper and all attempts for living together became an exercise in otiosity. The wife did not join the husband which compelled him to institute the aforesaid suit seeking divorce. The learned trial Judge decreed the suit and at the time of passing of the decree directed that the husband shall pay Rs. 500/- per month to the wife and Rs. 400/- to the minor child towards maintenance. This direction was given in exercise of powers conferred on the court under section 25 of the Hindu Marriage Act, 1955 (hereinafter referred to as 'the Act'). The decree for divorce was conceded to by both the parties but the husband, feeling aggrieved in regard to grant of maintenance, challenged the said part of the decree in F.A. No. 299/95.

3. Before the learned Single Judge it was contended on behalf of the husband that the trial Court has exceeded its jurisdiction while granting maintenance to the wife and child under section 25 of the Act as no application was filed for grant of the same and that being the essential preliminary, the direction of the court is demonstratively vulnerable. This contention was resisted by the wife on the ground that filing of the application is not a condition precedent for grant of maintenance and the court can, in its discretion, grant maintenance without an application being filed. The learned Single Judge accepted the contention raised by the appellant and set aside the direction contained in paragraph 9 (b) of the judgment which relates to grant of maintenance to the wife and child.

4. Impugning the aforesaid judgment Mr. H.B. Agarwal, learned counsel for the appellant, has contended that the learned Single Judge has erred in law in holding that filing of an application was a necessary preliminary as mandated by the statute to confer jurisdiction on the court to grant maintenance though the object and purpose of the legislation and the intendment of the Legislature is in a different direction. it is further submitted by Mr. Agarwal that the learned Single Judge has not taken into consideration that the Act in question is a benificial legislation, and therefore, the concept of rigorism has to be ostracised while interpretating a provision of the statute and the underlying purpose of the law makers has to be given due weightage. It is his further submission that the learned Single Judge has given undue emphasis on the punctuation marks occurring in the section though the same could have been totally ingorned to interprete the provision in favour of a distressed and desolate wife.

Mr. Ajit Singh, learned counsel for the respondent has built up his argument by contending that the language of the section is clear and unambiguous and when an application is required to be filed to confer jurisdiction on the court for grant of relief, the Court cannot assume jurisdiction in absence of the same as that would not only be against the spirit of the enactment but also would run counter to the concept of natural justice. It is his further submission that when various factors have been woven into the area of functional operation of section 25 of the Act, it would be against the established canons of justice to give an interpretation whereby the basic essence of the provision is frustrated and the aggrieved