KATHARA JIJUMON IPAN Vs. KATTATHARA SHERLY JIJUMON

JUDGEMENT

(1.) THE petitioner and the respondent are the spouses having married and registered their marriage under the Special Marriage Act, 1954 (hereinafter referred to as "the Act" for short). On account of dispute between the parties, the respondent invoked the jurisdiction of the Trial Court under Section 38 of the Act for maintenance of their children. The Trial Court after recording the fact that none of the parties brought to its record their respective income, based its judgment on guesswork and directed each of the parties to contribute Rs.1,500/ - (Rupees One Thousand Five Hundred) for maintenance of the children after holding that the parents were earning. Aggrieved, the petitioner -original respondent is before this Court.

(2.) LEARNED counsel for the petitioner took this Court through the impugned order and would submit that no reasons worth the name for passing the impugned order were recorded by the Trial Court. Learned counsel would also assail the impugned order with the submission that the Court below misconceived Section 38 of the Act which, in his submission, was not applicable. The argument is that the orders regarding custody, maintenance and education of the minor children can only be made in the decree and not by way of interim order. Learned counsel would also argue that since the section contemplates the modification of the orders in relation to the custody, maintenance and education of the minor children after the decree, it necessary implies that such provisions can be made only in the decree.

(3.) COUNTERING the above arguments, learned counsel for the respondent; relying upon Dharmeshbhai Dolatrai Desai Vs. Hetal @ Doli Dharmeshbhai Desai W/o. Dharmesh Dolatbhai Desai and another, 2011 3 GLH 530, would contend that Section 26 of the Hindu Marriage Act, 1955 is pari materia to Section 38 and while interpreting the former provision, the Court held that the maintenance for children by interim orders was available under Section 38 of the Act. Learned counsel would also invite attention of this court to the impugned orders to submit that the Trial Court found that both the provisions aforesaid were pari materia and thus, rightly applied the ratio in the above case and in his submission, no error warranting interference of this Court under Article 227 of the Constitution of India is made by the Court below. On consideration of the rival contentions, the issue that falls for consideration of this Court is as to whether Section 38 of the Act is invokable for awarding maintenance, custody and educational cost for minor children by way of interim orders ? It is relevant to look at Section 38 of the Act at this stage, it can be reproduced hereinunder: