DEBI PRASAD Vs. SANDHYA DEBI

JUDGEMENT

(1.) This application under S.115 of the Code of Civil Procedure and/or Art.227 of the Constitution of India has been filed as an alternative revision petition to MA(F) No. 24 of 1979 which we have just dismissed as not maintainable. This revision application is accordingly registered and we issue rule and take the application for hearing instantly as agreed by the learned counsel for the parties.

(2.) The impugned order dated 20th March, 1979 has been passed on two applications one under S.26 of the Hindu Marriage Act shortly, "the Act', for interim custody of the child, and the other under S.24 of the Act for maintenance of the child pendente lite, during pendency of the title suit No. 2/78 (divorce). The said title suit No. 2/78 has been instituted by the instant respondent praying for the dissolution of her marriage with the instant petitioner under S.13 of the Act. The application under S.26 of the Act was filed praying for interim custody of the child and the application under S.24 was filed praying for maintenance pendente lite and expenses of proceeding from the instant petitioner who filed his objection against the claims in both the applications. Both the parties were heard on the applications. The learned court in the impugned order after discussing the provisions of S.26 of the Act, and Ss.6 and 13 of the Hindu Minority and Guardianship Act has observed that in such cases the welfare of the minor is the paramount consideration to be made while ordering custody of the child. He found that the child Manidipa was 9 years old at the relevant time and was reading in Class IV and for her the mother was the most affectionate person. At the same time, the learned Judge observed that the instant petitioner was also not devoid of affection towards his daughter Manidipa, but, yet it would be proper for the best interest of the minor female child to remain with her mother, as she had not attained such age as to be able to do many things independently and her mother would be her best help in that regard. Moreover, when asked by the Court on that date of hearing of the two applications Manidipa also had expressed her willingness to stay with her mother, and hence, the court allowed the custody of Manidipa to her mother, the instant respondent for the time being. As regards the interim maintenance the court observed that it is an admitted fact that instant petitioner issued to pay at the rate of Rs. 150 P.M. for the maintenance of the child till May, 1978. The instant respondent submitted that the amount was not sufficient and she prayed that the same be increased to Rs. 300/-. The court observed that the petitioner earned a monthly income of Rs. 1000/- and accordingly it ordered the petitioner to pay a sum of Rs. 200/- P.M. with effect from June, 1978. As we have already observed the court earlier stated that the order both as regards custody as well as maintenance would be subject to any modification or variation due to any changed circumstances in future and/or till the disposal of the suit.

(3.) The impugned order having been passed in the said application under Ss.24 and 26 of the Act during the pendency of the divorce suit we do not find any lack of initial or inherent jurisdiction on the part of the learned District Judge in deciding these applications. We also do not find that while deciding the applications the learned Judge addressed himself to any extraneous question which could be beyond his jurisdiction. In other words, we do not find any error relating to jurisdiction committed by the court and as such we do not find any justification for interference with the impugned order in this revision. This is more so, because S.26 of the Hindu Marriage Act has expressly conferred discretion on the part of the court to decide such question in matrimonial matters and has also conferred on the court a discretion to vary or modify the same in light of changed circumstances. We find that the discretion has been exercised judicially taking into consideration the paramount interest of the child which ought to be the paramount interest to be considered in such cases as was held in Dr. Mrs. Veena Kapoor v. V. K. Kapoor, AIR 1982 SC 792.