ASHIT Vs. SUSMITA

JUDGEMENT

(1.) An order of maintenance pendente lite having been passed under S.24 of the Hindu Marriage Act in favour of the wife against the husband, the latter has moved this Court in revision against the said order. In view of the nature, object and duration of a pendeitte lite maintenance order under S.24, such an order should be sustained, wherever possible, and should be interfered with only when the law irresistibly warrants intervention.

(2.) Under S.28 of the Hindu Marriage Act, as it stood before the Amendment Act of 1976, there was a view that such an order was appealable thereunder, though a contrary view was also maintained. But S.28, as it now stands after the 1976 - Amendment, makes it abundantly clear that only final orders under S.25 and S.26 of the Act relating to permanent alimony, maintenance and custody of children etc. are, but no other order is, appealable. When the Legislature does not provide for an appeal against an order, them, as pointed out by the Privy Council in N. S. Venkatagiri Ayyangar, AIR 1949 PC 156 at p. 158, the intention of Legislature is taken to be that the order, right or wrong, shall be final. And such a Legislative intent would be more manifest in case of an order of maintenance pendente lite under S.24, if the Legislature having provided an appeal therefrom under S.28 as originally enacted, has now taken away the same by amending that Section in 1976. But after hearing the learned Counsel for the parties, we are, however, satisfied that the instant case warrants our intervention in revision. In N.S. Venkatagiri Ayyangar (supra at p. 158) Sir John Beaumont, speaking for the Board, while interpreting the expression "acted illegallly or with material irregularity" in S.115 of the Code of Civil Procedure, construed the expression "acted illegally" to mean to have acted "in breach of some provisions of law" and the expression "with material irregularity" to mean "by committing some error of procedure in the course of trial which is material in that it may have affected the ultimate decision". These observations, have been quoted with approval by the Supreme Court in Keshardeo Chamaria, AIR 1953 SC 23 at p. 28 and have also been fully relied on in a number of later decisions, e.g., in M.L. Sethi, AIR 1972 SC 2379 at p. 2384; in Sher Singh, AIR 1978 SC 1341 at pp. 1344, 1345. We are satisfied that the learned Judge in making the impugned order in the exercise of the jurisdiction vested in him under S.24 of the Hindu Marriage Act, acted illegally within the meaning of S.115(1)(c) of Civil P.C. The provisions of S.24 of the Hindu Marriage Act are reproduced hereunder :- "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 therespondent, if may seem to the Court to be reasonable".

(3.) It is, therefore, clear that the factor which entitles the court to exercise jurisdiction under S.24 is it appearing to the Court that the applicant-spouse has no independent income sufficient for her or his support but such jurisdiction is to be exercised and the resultant order is to be made by the Court "having regard to" the applicant-spouse's own income and the income of the non-applicant-spouse. Assuming that it rightly appeared to the court in this case that the applicant-wife had no independent income of her own sufficient for her support and, therefore, the trial court was right in assuming and proceeding to exercise jurisdiction under S.24, we are afraid that in making the impugned order of maintenance the court did not have regard to the income of the applicant wife and the non-applicant husband, which the court was bound to have under the law.