KUNHIKANNAN NAIR Vs. MADHU

JUDGEMENT

(1.) So far as the question of maintenance is concerned no question of law arises. And, as for the contention that S.10B of the Act (The Madras Marumakkathayam Act) applies only so long as the marriage between the parties is subsisting because it speaks of an application made either by the wife or the husband, I think the less said the better. Obviously the reference is to the persons referred to as the husband or wife in S.7 which says that either may present a petition for dissolution. A petition for dissolution is the only proceeding which lies in Court under Chap.2 of the Act, the chapter in which S.10A and 10B appear, and such a proceeding is therefore the only proceeding to which these sections can apply. While S.10A provides for interim maintenance pendente lite, S.10B provides for permanent maintenance after the proceeding has terminated and dissolution has been ordered -- unless the petition is withdrawn an order of dissolution has to be made after six months, and if there is no dissolution the wife's claim for maintenance would fall under S.13. Both sections use the words, "the wife or the husband" to refer to the parties to the proceedings under S.7 -- the reversal for the, "husband or wife" of S.7 being perhaps to indicate that the application under these sections is by the opposite party; and in S.10B the words mean quondam wife or quondam husband. This is a common drafting device -- see for example S.37 of the Indian Divorce Act and S.25 of the Hindu Marriage Act which obviously use the words "wife" and "husband" to mean a wife or husband whose marriage has been dissolved by decree of court. Since the only order that the court can make under Chap.2 of the Act in a case where there has been a valid marriage is one of dissolution, it would be meaningless to make provision under S.10B for permanent maintenance after making provision in S.10A for maintenance pendente lite if S.10B were to apply only to persons whose marriage is subsisting. And not to labour the obvious, the words, "while the applicant remains unmarried" in S.10B(1), as also the provision in S.10B(3) for revision of an order of maintenance on remarriage of the party concerned, make it quite clear that the section applies to a wife or a husband who has obtained a divorce.