ANJU BALA JAIN Vs. GIRISH KUMAR JAIN

JUDGEMENT

(1.) WHETHER a wife can file an execution petition claiming interim maintenance for the period when the divorce petition filed by the husband was lying adjourned sine die due to non -payment of maintenance fixed by the Court is the question referred to us by S.N. Dhingra, J, in view of the contradictory views taken by two learned single Judges of this Court. In Jai Rani vs. Om Prakash Saini, reported in 1984 Matrimonial Law Reporter 121, A.B. Rohtagi, J. held that when the court stays the proceedings 'sine die', lis comes to an end and the maintenance pendente lite must cease. The other view expressed by Sanjay Kishan Kaul, J in Asha Devi vs. Pominder Kumar Chhabra, Ex. F.A. No. 2 of 2003 decided on 7th September, 2006 Manu Patra/DE8969/2006 is that the liability of the husband to pay interim maintenance would not cease till such time as the proceedings are finally decided, so the husband is liable for paying interim maintenance also for the period when divorce petition was lying adjourned sine die. Facts which are material for the consideration of this reference are as follows:

(2.) WE have heard Mr. Sameer Mendiratta, advocate for the petitioner and Mr. Sunil Lalwani, advocate for the respondent.

(3.) THE object of Section 36 is clearly to enable the indigent wife, who has no independent income sufficient for her support and for meeting the necessary expenses of the proceeding, to conduct her defence in the proceeding. The basis of an order under Section 36 is that the wife applying under Section 36 is without means. Section 36 clearly contemplates payment of expenses and maintenance allowance while the rights of the parties are in contest and during the proceedings. As the heading of this Section indicates, Section 36 is concerned with maintenance pendente lite and expenses of proceedings. The words "pendente lite" mean "while the rights of the parties are in contest." The words "during the proceeding" are significant. They not only fix the duration of the interim maintenance but also the time of the payment of the interim maintenance and the expenses of the proceeding. The natural meaning of the words "during the proceeding" is "through -out the continuance of the proceeding" and "in the time of the proceeding". Thus, the expression "order the husband to pay to her the expenses of the proceeding, and weekly or monthly during the proceeding" means order the respondent to pay to the wife the expenses of the proceeding and weekly or monthly maintenance after the commencement of the proceeding and before its expiration.