SIDHARTH Vs. KANTA BAT

JUDGEMENT

(1.) Invoking the extra ordinary and inherent jurisdiction of this Court under Article 227 of the Constitution of India the petitioner has called in question the defensibility and tenability of the orders dated 24-1-2004 and 13-8-2006 passed by the learned Ilnd Additional District Judge, Chhindwara in Civil Suit No. 81-A/04, Annexure P5, and prayed for issue of writ of certiorari for quashment of the same. The writ petition was placed before the learned single Judge for grant of necessitous relief on the substratum that the learned IInd Additional District Judge, Chhindwara has erroneously directed the petitioner-husband to pay a sum of Rs. 1,000/- by way of interim maintenance from the date of the order and Rs. 1000/- towards litigation expenses and to pay expenses of each hearing day on the basis of application preferred under Section 24 of the Hindu Marriage Act, 1955 (for brevity, 'the Act'). It is worth mentioning that the second order dated 13-8-2005, was an application for review of the original order, which had faced rejection.

(2.) Before the learned single Judge, it was contended by the husband-petitioner that the Court below has fallen into grave error by allowing interim maintenance and litigation expenses without making any endeavour for reconciliation at the first instance as contemplated under Section 23(2) of the Act which is mandatory in nature and hence, the order passed by him is nothing less than a sanctuary of errors. To bolster the aforesaid submission, reliance was placed on the decision rendered by a learned single Judge of this Court in the case of Kesav Rao v. Tihalibai, 2003 (1) MPHT 5 (NOC), wherein it had been held that the provisions enshrined under Section 23(2) of the Act are mandatory. Learned single Judge hearing the writ petition was prima facie of the view that Section 23(2) would not get attracted for grant of maintenance pendente lite and expenses of proceedings and an order passed under Section 24 of the Act does not tantamount to grant of any relief to either of the spouses inasmuch as such a grant fundamentally is an arrangement. Being of this view, learned single Judge recommended for reconsideration of the view expressed in the decision rendered in the case of Kesav Rao (supra). That is how the matter has been placed before us.

(3.) At the very outset, it is seemly to state that prior to the law laid down in the case of Kesav Rao (supra), another learned single Judge in the case of Jagdish Chandra Kulshresthav. Pramod Kumari, 1993 MPJR 455 had expressed the opinion that the language employed in Section 23(2) makes it mandatory and order granting interim maintenance passed without first making an effort of reconciliation is unsustainable. A Division Bench of this Court had the occasion to consider the provisions contained in sub-sections 23(2) and 24 in the case of Dharmendra Kumar Ramswaroop Sharma v. Pushpadevi w/o Dharmendra Kumar, 1995 MPLJ 555 : (AIR 1995 MP 210), whereby the Division Bench overruled the decision rendered in the case of Jagdish Chandra Kulshrestha (supra) and came to hold that the Court is not disabled from attempting reconciliation before passing an order under Section 24 if it appears to the Court that the position of the parties is such that it would be appropriate to attempt reconciliation at that stage, but, the failure of the Court to make an attempt to bring about the reconciliation of the parties before passing an order under Section 24 of the Act does not make the order illegal. The Division Bench further expressed the opinion that the failure to observe the said requirement is an irregularity and not an illegality, for the provision engrafted under Section 23(2) is neither mandatory nor absolute.