SMT. MANORAMA MISRA Vs. SANTOSH KUMAR MISRA

JUDGEMENT

(1.) THIS is an application for revision of an order awarding Rs. 150/ - per month as maintenance pendente lite and Rs. 400/ - for expenses of the proceedings to the applicant who is the respondent in a suit for divorce by the opposite party. The learned counsel for the applicant urged that the income of the opposite party -husband was Rs. 2000/ - per month, of which his salary was admittedly Rs. 1865.50 p. per month, and the minimum allowance of maintenance pendente lite, which should have been allowed to the applicant -wife was Rs. 400/ - per month at the rate of one -fifth, although the amount claimed by her in the application was Rs. 500/ - per month, Similarly, about the amount of expenses of the proceedings, it was urged that the sum of Rs. 400/ - was too small as no lawyer was ready to conduct the case for that paltry sum and the minimum amount needed for the proper conduct of the case was Rs. 1000/ - as claimed by her. It, however, appears to me that the revision is not maintainable, inasmuch as the requirements of clause (2) of the second proviso to Section 115 of the Code of Civil Procedure, as it stands amended in the State of Uttar Pradesh, are not satisfied. It provides that "the High Court of the District Court shall not, under this section, vary or reverse any order......except where.....the order, if allowed to stand, would occasion a failure of justice of cause irreparable injury to the party against whom it was made."

(2.) THE order sought to be revised was passed under Section 24 of the Hindu Marriage Act. It is not appealable under Section 28 thereof. It does not decide the rights of the parties. It is only meant to put an indigent spouse in funds, in order to enable him or her, to see the proceedings through. The interim maintenance can be granted under that provision only if it appears to the Court that either the wife or the husband, as the case may be, has no independent income sufficient for her or his support and the necessary expenses of the proceedings. The amount has to be fixed "having regard to the petitioner's own income and the income of respondent." The provision of Section 25 of the Hindu Marriage Act, which provides for permanent alimony or maintenance, is in different terms. The provision for expanses of the proceedings has also to be made in order to enable the indigent spouse to prosecute or contest the case. Having regard to the facts of the case, as disclosed in the orders sought to be revised, and the surrounding circumstances, it is impossible to say that the applicant will not be able to obtain justice in the matrimonial proceedings initiated by the opposite -party, her husband, if the order sought to be revised is not interfered with. There is no question of any irreparable injury being caused to the applicant by the continuance of the order.

(3.) SUBJECT to the observations made above, the revision is dismissed as not maintainable. A certified copy of this order may be supplied to the learned counsel for the applicant within three days from today on payment of usual charges.