DWRAKA PRASAD Vs. KRISHNA DEVI

JUDGEMENT

(1.) I am not at all prepared to perpetuate injustice done in this case to the poor wife, who had been deprived of the statutory right of maintenance under Section 24 of the Hindu Marriage Act, 1955, (For short 'the Act') as a result of the prevent proceedings instituted in this Court eight years ago. Counsel for the petitioner having realised the futility of supporting the order passed in this case on 22 -9 -1977 adjourning the matter sine die, sought leave to withdraw the petition. But I refused leave to him because that will rob me of my jurisdication to render an effective order in this case to do justice to a battered cause, if not to the battered wife. I can say this much only that because he expressed his willingness not to press the petition, only a 'no costs' order I can make, to which he is entitled under the law.

(2.) THE short question in this matter is, whether during pendency of the application by the husband to set aside the exparte order passed against him in the divorce suit instituted by him, which was dismissed for default, the provisions of Section 24 shall be operative or not. I have no hesitation to say bluntly and say without hesitation that the mandate of Section 24 is very clear, obvious, imperative, inexorable and peremtory. No exception at all is contemplated to the mandate, which is clearly expressed in the clear language of the provision, which I quote :

(3.) THE words and expressions underlined in the above extract amply project the object, purport and also the force of the legislative mandate. The object for "maintenance pendente lite" is to achieve a dual purpose, (a) support (subsistence) of the applicant and (b) expenses of the proceeding and indeed or "any proceeding" under the Act. The application cannot be refused but a "reasonable" maintenance can be ordered having regard only to the absence or sufficiency of the "independent income" of the applicant. What is transparently clear is the fact the provision applies to "any form of proceeding whether original, interlocutory, appellate or revisional so long it concerns any right or liability created by or under the Act. The only objection which could be taken to the impugned order and which is now even feably voiced in a subdued tone as the judgment is being dictated (because, earlier a surrender was of the probable or possible defence) is that the order for maintenance which "as passed during the pendency of the suit lost its force as a result of the suit being dismissed. This objection is wholly merit less and indeed such an unholy objection is statutorily excluded as explained above. Dismissal of the suit did not absolve the wife of the responsibility or the liability to defend the restoration proceeding initiated to enforce the right to divorce granted under the Act. How can she, therefore, be deprived that benevolent succour of the wholesome provision of Section 24 inasmuch as by defending the restoration application it would be possible for her to avoid the liability or disability that might eventually ensue on the suit being decreed. I prefer to take the view that even if a fresh order is not passed by the trial Court in the restoration proceeding, it would be well within the jurisdiction of this Court to make a direction in that regard and to restore the order though such a direction may tantamount to restoring the lapsed order, I would like to consider the proceedings in the suit to be continued by the proceeding in the restoration application and now in this Court inasmuch as subsequent proceedings arise out of the petitioner's prayer for divorce.