DWARKADAS GURUMUKHDAS AGRAVAL Vs. BHANUBEN

JUDGEMENT

(1.) The petitioner-husband being aggrieved by the order of the learned Civil Judge (S.D.) Branch granting maintenance pendente lite of Rs. 25 per month to the respondent-wife herein in Hindu Marriage Petition No. 34 of 1980 on his file moved by the said husband for divorce on the ground that the wife is living in adultery has come by way of this revision before this Court.

(2.) The question which has been canvassed before me in this revision application is of some importance since according to the learned Advocate for the petitioner the view of the learned Civil Judge in upholding the right of an unchaste wife for maintenance pending the proceedings is tantamount to encouraging immoral behaviour on the part of an erring spouse. At the outset it must be admitted that in the main proceedings for divorce the decree has been granted by the Matrimonial Court on the ground of the respondent wife having been proved to be living in adultery. Whether this ultimate outcome of the original proceedings in the first Court would disentitle her to claim maintenance pending the original proceedings is a moot question. In other words is the Matrimonial Court entitled to negative the claim of maintenance pendente lite merely on the ground of the averments in the petition or the allegations against the wife. The answer to this question depends on the real nature of this right of a spouse to claim maintenance pending the proceedings. The right of a wife in general for maintenance is an incidence of the status of matrimony. The husband in general is under an obligation to defray the wifes costs of any proceedings and to provide her with maintenance and support during the pending legal proceedings under Hindu Marriage Act. Alimony strictly speaking is a maintenance allowance given to a wife by husband on separation. It is well recognised in civilised society that a wife having no independent means of subsistence and maintenance is entitled to alimony pending matrimonial proceedings and costs thereof. It is this principle which has been incorporated in sec. 24 of the Hindu Marriage Act. As a matter of fact the section goes beyond the classical concept of the doctrine of alimony inasmuch as it recognises the right even of a husband who has no sufficient means for his support to claim alimony pending the proceedings from a wife having means. The opening words of sec. 24 invest a spouse lacking sufficient means for his or her support to claim maintenance pendente lite and the costs and expenses of the proceedings under the Act which. includes inter alia for divorce or nullity of void or voidable marriage. On the plain reading of sec. 24. alimony is a concomitant of a marriage in fact. On an admission or proof of a factum of marriage alimony is a right of either of the spouses lacking means of his or her support. It would be no answer to such claim that the marriage is void or voidable. It would be imprudent on the part of the Court to ignore the principle that a de facto marriage necessarily carries a right to alimony pendente lite for an incapacitated spouse and the ultimate outcome of substantive proceedings cannot have a back-fire so as to negative such a right. It the allegation or for that matter the conduct of the party claiming maintenance or expenses pending the proceedings is allowed to have such an over-bearing effect so as to negative such a claim it would be tantamount to prejudging the issues which is to be tried in the substantive proceedings (see: GANNU V. PUNDIK A.I.R. 1979 BOM 264). If the conduct of a spouse claiming such a right is to be considered so relevant in the original proceedings as to negative the right which the law has invested in a spouse lacking the capacity for his other maintenance the Legislature would have certainly provided to that effect as it has done in sec. 25 of the Hindu Marriage Act. It can be urged with force that the conduct of a spouse claiming such a right is entirely irrelevant since otherwise the Legislature would have made an appropriate provision in sec. 24 as it has done in sec. 25 (see: LALLUBHAI V. NIRMALABEN AIR 1972 GUJARAT 174) On behalf of the petitioner it was urged that there is nothing in sec. 4 to prevent a Court from taking into consideration the conduct of the parties. I am afraid that this is too spacious a contention since atleast in the original proceedings if this point is conceded it would require the Court to judge the merits of the rival contentions of the parties when deciding an application for interim alimony and if such an exercise is permitted the Courts discretion would be fettered merely by the nature of the allegations made in the petition and would be compelled to examine the merits of the same atleast prima facie. My attention has been invited to the decision of the Court of Appeal in WALLER V. WALLER (1956) 2 ALL ER 234 where the Court of Appeal in the context of such a right of alimony pendente lite under sec. 20(1) of the Matrimonial Causes Act 1950 held that in considering an application for alimony pendente lite the Court should take into account all the relevant circumstances including the adultery. the conduct of the parties and any plea of conduct conducing or condonation. I am afraid that this decision cannot be pressed into service with all the force by the petitioner before me since the wife in that case admitted in her affidavit some acts of adultery but alleged that they had been conduced to by the cruel conduct of the husband. The Court ranted the alimony pendente lite notwithstanding the wifes adultery. I am therefore of the opinion that the decision does not assist; much to the cause of the petitioner. On the contrary it goes against the proposition which has been canvassed on behalf of the petitioner. In that view of the matter. therefore I do not think that there would be any justification to interfere with the order of alimony pendente lite which the learned Civil Judge has granted in favour of the respondent-wife.

(3.) The result is that this revision fails and is dismissed. Interim relief vacated. Rue is discharged with no order as to costs. Application dismissed.