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SAJU SASIDHARAN Vs. DHANYA & ANR.

Judgement

 
Court:KERALA HIGH COURT

Bench: JUSTICE K.T. Sankaran & M.L. Joseph Francis

SAJU SASIDHARAN Vs. DHANYA & ANR. on 7 August 2012

Law Point:
Maintenance pendente lite — Oral request for such relief cannot be entertained by Family Court — Order passed by Family Court granting interim maintenance set aside.

 

 

JUDGEMENT

 

The question involved in this Original Petition is whether an application is required to claim maintenance pendente lite and expenses of proceedings, under Section 24 of the Hindu Marriage Act.

2. The respondents filed O.P. No. 205/2012 on the file of the Family Court, Kottarakkara against the petitioner for return of gold ornaments and money as well as for maintenance, past and future. After counselling, the case was posted before the Family Court on 1.6.2012. On that day, the petitioner/husband (respondent before the Family Court) filed written statement and he also put forward a counter claim. On 1.6.2012 itself, the Family Court passed an order directing the petitioner to pay interim maintenance at the rate of Rs. 1,000 (Rupees one thousand only) each to his wife and child. That order is under challenge in this OP (FC). No application was filed by the wife and the child of the petitioner claiming interim maintenance. From the order impugned, it is seen that an oral request was made for interim maintenance. No opportunity was afforded to the petitioner to put forward his contentions on the oral request made by the respondents. The only point to be considered in this Original Petition is whether the Family Court was right in granting interim maintenance without there being an application.

3. Section 24 of the Hindu Marriage Act (for short, ‘the Act’) provides for maintenance pendente lite and expenses of proceedings. Section 24 reads thus:

24. Maintenance pendente lite and expenses of proceedings—Where in any proceeding under this Act it appears to the Court that either the wife or her 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:

Provided that the application for the payment of the expenses of the proceeding and such monthly sum during the proceeding, shall, as far as possible, be disposed of within sixty days from the date of service of notice on the wife or the husband, as the case may be

4. The expressions “on the application of the the wife or husband” and “pay to the petitioner” mentioned in Section 24 of the Act make it clear that an order under Section 24 can be passed only on an application. Section 24 can be invoked either by the wife or the husband. To enable a party to get an order under Section 24, the Court must be satisfied that the petitioner has no independent income sufficient for his/her support. It is also incumbent on the Court to take into account the income of the petitioner and the income of the respondent while dealing with an application under Section 24 for pendente lite maintenance. The requisite ingredients to enable the Court to fix the quantum of maintenance have to be brought out in the application and/or in the objections. Without any application, the Court cannot justifiably dispose of a request for maintenance pendente lite and expenses of the proceeding, as provided in Section 24. A proviso was inserted to Section 24 of the Act, by the Marriage Laws (Amendment) Act, 2001, Act 49 of 2001. In that proviso also, the word “application” is mentioned.

5. In Section 125 of the Code of Criminal Procedure, second and third provisos were inserted by Act 50 of 2001, whereby a provision was made for interim maintenance. A learned Single Judge of this Court in Davis v. Thomas & Another, 2007 (4) KLT 883, held that interim maintenance can be awarded only on written application. The learned Single Judge relied on the decision in Savitri v. Govind Sing, AIR 1986 SC 984, wherein the Supreme Court held that the Magistrate should insist upon an affidavit to be filed on behalf of the person claiming interim maintenance, in order to support the claim for interim maintenance.

6. In Neeta Rakesh Jain v. Rakesh Jeejtmal Jain, II (2010) DMC 275 (SC)=V (2010) SLT 504=AIR 2010 SC 3540, while dealing with the scope and ambit of Section 24 of the Hindu Marriage Act, it was held thus:

“8. Section 24, thus, provides that in any proceeding under the Act, the spouse who has no independent income sufficient for her or his support may apply to the Court to direct the respondent to pay the monthly maintenance as the Court may think reasonable, regard being had to the petitioner’s own income and the income of the respondent. The very language in which section is couched indicates that wide discretion has been conferred on the Court in the matter of an order for interim maintenance. Although the discretion conferred on the Court is wide, the section provides guideline inasmuch as while fixing the interim maintenance the Court has to give due regard to the income of the respondent and the petitioner’s own income. In other words, in the matter of making an order for interim maintenance, the discretion of the Court must be guided by the criterion provided in the section, namely, the means of the parties and also after taking into account incidental and other relevant factors like social status; the background from which both the parties come from and the economical dependence of the petitioner. Since an order for interim maintenance by its very nature is temporary, a detailed and elaborate exercise by the Court may not be necessary, but, at the same time, the Court has got to take all the relevant factors into account and arrive at a proper amount having regard to the factors which are mentioned in the statute.”

7. In the second proviso to Section 125(1), Cr.P.C. which was inserted by Act 50 of 2001, no mention is made about the necessity of filing an application for claiming interim maintenance. However, in the third proviso, it is provided that an application for monthly allowance for interim maintenance and expenses of the proceeding under the second proviso shall, as far as possible, be disposed of within sixty days from the date of service of notice of the application to such person. Interpreting the third proviso to Section 125(1), Cr.P.C., it was held in Davis v. Thomas and Another, (2007(4) KLT 883) that an application should be filed to claim interim maintenance. Insofar as Section 24 of the Hindu Marriage Act is concerned, specific mention is made on the requirement of an application for making a claim for maintenance pendente lite and expenses of the proceeding. The proviso to Section 24 of the Hindu Marriage Act is similarly worded as the third proviso to Section 125(1) of the Cr.P.C.

8. If no application is filed claiming relief under Section 24 of the Hindu Marriage Act, the Court would not be in a position to arrive at the correct conclusion, having regard to the matters to be taken into account, as provided under Section 24. If an oral request for maintenance pendente lite and expenses is entertained, the opposite party would not get a meaningful and reasonable opportunity lo defend the same by putting forward the relevant facts in support of his or her defence. The irresistible conclusion is that the party claiming maintenance pendente lite and/or expenses of the proceeding under Section 24 of the Hindu Marriage Act should claim the same by filing an application. An oral request for such a relief cannot be entertained by the Family Court.

9. For the aforesaid reasons, the order dated 1.6.2012 passed by the Family Court granting interim maintenance is set aside, leaving open the right of the respondents to file an appropriate application for the said relief. The other reliefs prayed for in the Original Petition which are unconnected with the main relief are left open.

Ordered accordingly.

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