YOGESHWAR PRASAD Vs. JYOTI RANI PRASAD

JUDGEMENT

(1.) The marriage between the parties which took place on March 4, 1960, was dissolved on March II, 1977, on accusations of cruelty and desertion levelled by the wife Mrs. Jyoti Rani. She then made an application on May 25, 1977 under Section 25 of the Hindu Marriage Act, 1955 (herein the Act), for permanent alimony. She also made an application under Section 24 of the Act on April 20, 1978, tor maintenance pending the determination of the application under Section 25 and expenses of the prosecution of that application. The petitioner husband raised preliminary objections. He contended that under Section 24. it is the husband and wife who are entitled to such maintenance but after the dissolution of the marriage that relationship had come to an end and therefore that section is not applicable. It was next contended that the words "proceedings under this Act" occurring in Section 24 refer only to the proceedings for restitution of conjugal rights, judicial separation, divorce or nullity and the petition under Section 25 did not fall in any of these categories. The learned Additional District Judge by his order dated May 24 1979, rejected these perliminary objections of the petitioner. Hence, this revision.

(2.) Along with the aforesaid contentions that were urged before the learned Additional District Judge, it was also submitted here that the respondent wife was carrying on with one Bhagwati Prasad Mandelia; both conspired to dissolve their previous marriages, Bhagwati Prasad Mandelia from his wife Sumitra Mandelia and the respondent from the petitioner. Since the respondent is not leading a chaste life, she will not be entitled ultimately to any maintenance under Section 25 of the Act and therefore, she is not entitled to any interim maintenance under Section 24 thereof. Her character and conduct has to be taken into consideration even in an application under Section- 24.

(3.) I have heard and considered. As regards, the last submission, the conduct of the respondent which will include unshastity, has to be taken into consideration not only at the time of making financial provision under Section 25, but it can also be taken into consideration at the time of grant of interim maintenance. Support for this proposition is available in Prasana Kumar Patra v. Smt. Sureswari Patrani AIR 1969 Ori 12(1). The sole question for decision always in such cases is whether the character and gravity of the conduct were such as would be repugnant to justice to ignore them in determining the provision that was to be made by the other party. But this is a matter which will have to be gone into by the court below. The learned counsel submitted that if ultimately the application of the wife under Section 25 is disallowed, then the grant of interim maintenance for the restitution or refund of which there is no provision, will be a dead and unjust loss. But such grievances cannot be allowed to prevail in interpretation of the provisions of the Act. These are exigencies of making and breaking of matrimonial relationships. Such a situation is inherent even in other proceedings under the Act. Since the husband is vehemently disputing the right to permanent alimony, the wife will be required to fight it equally stoutly and she has to be equipped for that purpose if she has no wherewithal of her own.