KAMALA Vs. SHAMA RUPCHAND

JUDGEMENT

(1.) THE appellant is the wife of respondent No. 1. They were married on 18-5-1955. In April 1956 respondent. No. 1 filed a petition under Section 12 of the Hindu Marriage Act, 1955 (No. 25 of 1955), praying that his marriage with the appellant should be declared null and void. During the pendency of this petition, the appellant made an application under Section 24 of the Act, in which she asked for an order directing respondent No. 1 to pay her maintenance at the rate of Rs. 50/- per month and the expenses of the proceedings. This application was opposed by respondent No. 1. It was urged on his behalf that an order under this section can only be made in favour of the petitioner, that is, the party, who had filed the main petition before the Court. This argument urged on behalf of respondent No. 1 was found favour with the learned trial Judge, who accordingly dismissed the application made by the appellant for obtaining interim relief. Against that order, the present appeal has been filed.

(2.) SECTION 24 of the Act is as follows: " 'maintenance pendente lite and expenses of proceedings': Where in any proceeding under this Act 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 proceeding, it may, on the application of the wife or the husband, order the respondent to pay to the petitioner the expenses of the proceeding, and monthly during the proceeding such sum as, having regard to the petitioner's own income and the income of the respon-dent, it may seem to the court to be reasonable. " The words used in the section are, 'application,' 'respondent' and 'petitioner'. On behalf of the respondents, it has been contended that the words petitioner' and 'respondent' refer to the parties to the main petition made to the Court under Section 12 of the Act. On the other hand, it has been urged on behalf of the appellant that these words respectively mean the person who had made the application under Section 24, and the person opposing this application. In order to decide which of these interpretations is correct, it is necessary to consider the object of the section, which clearly is to ensure that a party to a proceeding does not suffer during the pendency of the proceeding bv reason of his or her poverty. The section provides for the grant of maintenance 'pendente lite and the expenses of the proceeding. The party standing in need of such relief may be either the petitioner or the respondent, and prima facie', there is no reason why the Parliament should try to make a distinction when the needy party is the petitioner, who had made the original petition and when the person requiring interim relief is the respondent. The fact that under Section 24, relief can be granted to both the wife and the husband indicates that the Parliament intended to make no such distinction. A petitioner may institute a proceeding 'bona fide', but may be unable to continue it, owing to his inability to meet the further costs of the proceeding. Similarly, there may be cases, in which the aggrieved party is really the respondent, but in which the proceeding is initiated by the other party in the hope or expectation that he might succeed owing to the inability of the respondent to defend it. Such cases frequently come before the Courts. It is difficult to believe that Parliament intended to give relief only in the first class of cases and made no provision for the other cases. Unless, therefore, the Legislature has shown a clear intention to the contrary, which it has not, it would not be reasonable to confine the relief under this section only to the party, who had initiated the original proceeding before the Court.

(3.) UNDER the ordinary Hindu Law, a husband is bound to maintain his wife, whether he possessed property or not: sec paragraph 554 in Sir Dinshah Mulla's Hindu Law, 1952 edition. Section 6 of the Bombay Hindu Divorce Act, 1947, provided that in any suit under that Act, if the wife had not an independent income sufficient for her support and the necessary expenses of the suit, the Court, on the application of the wife, might order the respondent to pay her the expenses ot the suit, and monthly during the suit such sum not exceeding the husband's one-fifth net income as the Court, considering the circumstances of the parties, thought reasonable. This Act of the Bombay Legislature has been repealed by the new Hindu Marriage Act, if the interpretation urged 011 IKD if ot 'tie respondents is accepted, the result will be that in proceedings initiated by the husband, the wife will not be able to claim interim maintenance wrongfully withheld by her husband and will have to file a separate suit in order to recover the maintenance due to her. We very much doubt whether the Parliament, which had before it Section 6 of the Bombay Hindu Divorce Act, intended to bring about this result.