DAYA AGGARWAL Vs. SOHAN LAL

JUDGEMENT

(1.) THE order of the Court of Sh. K. L. Wasan, Additional District Judge, Ambala, dated October, 18, 197 3, refusing to allow the Petitioner Rs. 00/ - (sic) said to have been spent by her as the medical fee of Mr. Vidya Sagar, of the Medical College, Hospital, Rohtak, and the refusal to grant her the expenses of the application under Section 476 of the Code of Criminal Procedure as well as some amount of maintenance during the pendency of that application in the trial Court after the dismissal in default of the Respondent husband petition for divorce, has been impugned by the Petitioner who is the wife of Respondent. The application for divorce had been filed by the Respondent on the ground that the Petitioner suffered from insanity. It is stated that on the date fixed for recording the statement of the doctor as a Respondent's witness to depose about the insanity of the Petitioner, the doctor did not turn up and an arrangement was made whereby it was agreed that the Petitioner may be examine by Dr. Vidya Sagar of the Medical College Hospital, Rohtak, and that if he gave the opinion that the Petitioner was insane, the decree for divorce would be granted, but if he opined to the contrary, the expenses of the doctor would be met with by the Respondent and his petition would also be dismissed.

(2.) THE father of the Petitioner who has appeared before me as her special attorney admits that the above said arrangement was not reduced to writing, and neither party made any statement in the Court wherein such arrangement might have been incorporated. He asks me to infer from the order sent to Dr. Vidya Sagar to examine the Petitioner that such an arrangement was arrived at because the order refers to an agreement between the parties to refer the case to Dr. Vidya Sagar for his opinion. I am unable to spell out of a mere reference to some agreement the fastening of liability for the payment of the amount on the Respondent. If the Petitioner wanted she could have the said statement recorded in Court. In any case even if such an agreement was there, the Petitioner would have to take recourse to independent proceedings for the recovery of the same as the mere agreement of the parties even if arrived at in proceedings pending in Court does nut become executable unless the Court passes an order in terms of such an. agreement. It would, therefore, be open to the Petitioner, if so advised to have recourse to ordinary proceedings for the recovery of the amount from the Respondent if she is able to prove any such agreement as has been alleged by her attorney before me .

(3.) THE Petitioner's attorney has then argued that the proceedings under Section 476 of the Code of Criminal Procedure can be started even after the disposal of the main case and an application under that provision being an application for passing an interlocutory order, the expenses incurred in filing and prosecuting that application should be made a part of the order under Section 24 of the Hindu Marriage Act, and the Petitioner is entitled to receive monthly amount for her maintenance during the pendency of that application. He has relied in that connection on the judgment of the Patna High Court in Surya Narain Prasad v. Surya Man Jha : A.I.R. 1947 Pat 106. All that was held in that case was that where an application under Section 476 is made to a civil Court for prosecuting the plaintiff tor an offence of perjury, the Court has jurisdiction while dismissing the application to award costs under Section 35 of the Code of Civil Procedure, and that such cost are incidental to the suit in which the Petitioner was the Defendant, being the costs of an interlocutory application made to the Court after the suit was decreed that does not, however, help the Petitioner. No question under Section 24 of the Hindu Marriage Act arose before the Patna High Court. The field within which Section 24 an work is limited and hedged in by the conditions laid down in the section itself. An order under that provision can be made only "in any proceedings under this Act (Hindu Marriage Act)". Even though an application under Section 476 of the Code of Criminal Procedure may be taken as an interlocutory application in proceedings under the act, it is not by itself a proceeding under the Hindu Marriage Act, particularly when the proceedings under that Act had admittedly come to an end before that application was made. Nothing stated in this order may be implied to suggest that an application under Section 476 cannot be made after the deposal of the main case. I am neither called upon to decide any such issue nor am trying to do so. I am assuming that such an application can and has been made after the decision of the main case. Nevertheless the application under Section 476 of the Code of Criminal Procedure is not proceeding "under" the Hindu Marriage Act and Section 24 is not applicable to the same.