NALINI Vs. VELU

JUDGEMENT

(1.) The respondent in MFA. No. 652 of 1983 is the petitioner herein. The sole appellant in MFA. No. 652/83, the respondent in this petition, is the petitioner's husband. This petition is filed by the wife, petitioner, under S.24 of the Hindu Marriage Act, 1955 which is to the following effect:

(2.) Pending the appeal, CMP. No. 3906 of 1984 was filed by the petitioner (wife) under S.24 of the Hindu Marriage Act, 1955 praying to direct the respondent (husband) to deposit in Court for payment to the petitioner reasonable sum towards maintenance and expenses of the proceedings and to pass appropriate orders. This petition was filed on 3rd February, 1984. In the affidavit filed in support of the petition dated 29th January, 1984 the petitioner has stated that she has no independent income sufficient for her support and that she requires atleast Rs. 200/- per month for maintenance, and that such reasonable sum towards maintenance may be granted, inclusive of the period during which the OP. was pending and also some reasonable amount towards expenses in these proceedings. By order dated 17-2-1984, this court ordered that the respondent should pay a sum of Rs. 200/- per mensem towards maintenance besides a sum of Rs. 500/- towards expenses for the proceedings, within one month. It was also held, that the said direction shall be without prejudice to the right of the petitioner, to claim the arrears of maintenance, eversince the OP. was filed in the lower court. CMP. No. 5939 of 1984 has been filed since then, claiming that the respondent may be directed to pay the petitioner a sum of Rs. 10,100/- or such reasonable amount as this court may deem proper, towards arrears of maintenance and the expenses of the proceedings in the court below. The arrears are claimed from 3-3-1980 till 17-2-1984, the date on which orders were passed in CMP. No. 3909 of 1984, at the rate of Rs. 200/- per mensem, which will be about Rs. 9,600/- and the expenses for contesting the proceedings in the court below, amounting to Rs. 500/- (Total Rs. 10,100/-). The respondent (husband) has filed a counter affidavit dated 19th March, 1984 The maintainability of such petition as also quantum asked for are disputed. The petitioner has filed a reply-affidavit dated 25th March, 1984.

(3.) At this stage of the proceedings, when the appeal itself is pending, the question as to whether and if so what amount can be granted to the petitioner by way of arrears of maintenance, etc., can be adjudicated only in a summary way. Courts have expressed divergent views regarding the date from which the court can grant maintenance in exercise of the powers vested under S.24 of the Act. Three different views have been expressed. (1) The maintenance can be granted from the date of the original (main) application. (2) It can be granted from the date when the other spouse was served with notice in the case and (3) maintenance can be granted from the date of filing of the application under S.24 of the Act. The decisions taking the above views are:- (1) The first view-In Samir Banerjee v. Sujata, (70 Cal. Weekly Notes 633 at p. 642) it was held that the court can pass a valid order for arrears of maintenance from the date of the original application though the application for maintenance might be made later. Regarding the second view, the Calcutta High Court in Sobhana Sen v. Amar Kanta Sen ( AIR 1969 Cal. 455 ) and the Madras High Court in Mahalingam Pillai v. Amsavalli ( 1956 (2) MLJ 289 ) have held that maintenance can be granted after summons was served on the respondent in such cases See, also, the decision of the Mysore High Court in N Subramaniam v. M. G. Saraswathy (AIR 1964 Mysore 38), wherein it was held that interim maintenance from the date of the receipt of notice of the main petition and upto the termination of the proceedings, can be awarded. The third view is that maintenance can be granted only from k the date of filing of the application. This has been highlighted in Dr. Tarlocan Singh v. Mohinder Kaur (1963) 65 Punjab Law Reporter 19), Nirmala Devi v. Ram Dass (AIR 1973 Punjab and Hariyana 48). Narendra Kumar v. Suraj Mehta (AIR 1982 AP 100) and Dr. Yoginder Pal Soni v. Smt. Padma Soni (Vol. 72 Punjab Law Reporter 878).