MONOJ KR JAISWAL Vs. LILA JAISWAL

JUDGEMENT

(1.) We have given our anxious consideration to the submissions so fairly and forcefully made by Mr. Banerjee, the learned counsel for the petitioner, but we are satisfied that we cannot but decline to intervene in revision initiated by the petitioner-husband against an order of maintenance pendente lite passed against him in favour of his wife and minor child.

(2.) The learned Judge having perfect jurisdiction to grant pendente lite maintenance under S.24 and S.26 of the Hindu Marriage Act, this is not a case of illegal assumption of jurisdiction within the meaning of S.115(1)(a) of the Code of Civil Procedure. The learned Judge having exercised that jurisdiction and passed order of maintenance, this is also not a case of non-exercise of or failure to exercise jurisdiction within the meaning of S.115(1)(b) of the Code. And the learned Judge having considered and assessed the materials on record in coming to his finding and not having acted in breach of any provisions of law and also not having committed any error of procedure, this is also not a case of illegal or irregular exercise of jurisdiction within the meaning of S.115(1)(c) of the Code.

(3.) It is true that the learned Judge had before him an application only under S.24 of the Act for pendente lite maintenance both for the wife and the minor child. It is also true that S.24, in terms, provides for pendente lite maintenance for the spouse only and not for the children of marriage. But S.26 invests the Court with full jurisdiction to pass, from time to time, such interim orders for maintenance of minor children as the Court may deem just and proper. It should also be noted that while S.24 requires for its operation an application from the spouse concerned, the provision of S.26, so far it relates to interim maintenance, may be invoked even without any application in writing and a formal application in writing is necessary under S.26 only for awarding maintenance and other reliefs after the decree. The learned Judge, therefore, had perfect jurisdiction to grant pendente lite maintenance to the minor child even without a formal application and, therefore, his granting such interim maintenance even when moved by an application labelled as one under S.24 only, cannot be branded as without jurisdiction or to involve any jurisdictional question, even though S.24 does not provide for maintenance for children. As already indicated, when the Court had jurisdiction under S.26 to grant pendente lite maintenance to the minor child and the court could exercise its jurisdiction even without any formal application, it would be putting too much premium on technicalities to strike down an order for maintenance for the child solely on the ground that the application invoking such jurisdiction quoted a wrong Section or did not quote the right Section. The tendency of the courts, as pointed out by the Supreme Court in Pratap Singh v. Shri Krishna Gupta, AIR 1956 SC 140 at p. 141, towards technicalities is to be deprecated because it is the substance that counts and must take precedence over mere form. If in substance the wife has applied for maintenance of the child also and the materials on record also justify such a grant, then the application being labelled as one under S.24 is only a matter of form and the application could very well be treated as an application for the purpose of S.26 also, even if an application was necessary for pendente lite maintenance of children under S.26.