SADHANA DEVI Vs. BIJENDRA KUMAR

JUDGEMENT

(1.) This Civil Revision application is directed against the order dated 23-7-1996 passed by the Principal Judge, Family Court, Patna, in Matrimonial Case No. 46 of 1995, whereby and whereunder the Court below rejected the application filed by the petitioner under Section 24 of the Hindu Marriage Act (hereinafter to be referred to as 'the Act' for short) claiming alimony pendentelite for her maintenance and for the maintenance of minor son. The plaintiff-opposite party filed Matrimonial Case No. 46 of 1995 against the petitioner for a decree for restitution of conjugal rights and for a direction to the petitioner to return to her matrimonial home and on failure of the petitioner, the marriage may be dissolved by a decree of divorce.

(2.) The suit was contested by the petitioner by filing written statement stating, inter alia, that she is willing to live with her husband provided proper security is given to her as she was ill-treated by the plaintiff-opposite party and his parents, while she was living with the opposite party. During the pendency of the aforesaid case, the petitioner filed a petition dated 3-6-1996 praying for alimony pendentelite which application was opposed by the plaintiff-opposite party on the ground that he is a student and has no source of income. The Court below disposed of the application by the impugned order dated 23-7-1996. The Court below came to the finding that there is no evidence on behalf of the plaintiff-opposite party to prima facie prove that the petitioner-wife is working as teacher in the school and she has no source of independent income and she is fully dependent for her maintenance on her parents. The Court below further came to the finding that the plaintiff-opposite party has also no independent source of income and he is still prosecuting his studies and dependent on his father. On that ground that petition filed by the petitioner was rejected. So far the maintenance to the minor child is concerned, the Court below held that since no separate application claiming maintenance of the child was filed, therefore, no order can be passed. Hence, this Civil revision application.

(3.) Mr. S. K. Verma, learned senior counsel appearing on behalf of the petitioner, assailed the impugned order as being illegal and wholly without jurisdiction. Learned counsel submitted that the Court below has committed grave error of law insofar as it held that the plaintiff-opposite party having no independent source of income, is not liable to pay maintenance to the wife according to the learned counsel, in no event, the husband can be exonerated from his liability to maintain his wife and minor children. He put reliance on the decisions rendered in the case (i) Smt. Urmila Devi v. Hari Prakash Bansal, AIR 1988 Punj and Har 84, (ii) Gurmali Singh v. Bhuchari, AIR 1980 Punj and Har 120. Learned counsel further submitted that the Court below has failed to appreciate the settle law that no separate application with regard to maintenance of child is required and even on the basis of affidavit, such order can be passed. In support of his contention, learned counsel referred to the decisions in the cases of (i) Manoj Kumar Jaiswal v. Smt. Lila Jaiswal, AIR 1987 Cal 230 and (ii) Durga Pada Banerjee v. Smt. Sushmitta Banerjee, (1991) 2 Pat LJR 215. Learned counsel lastly submitted that it was not dispsuted that the plaintiff husband is able person capable of working and in such event, he is bound to maintain the wife and minor children. Learned counsel referred to the decisions in the cases, reported in (1995) 2 Pat LJ Reports 199 and in 1997 Patna Law Reports 129.On the other hand, Mr. Farooque Ahmad Khan, learned counsel for the husband opposite party submitted that the main suit filed by the plaintiff opposite party has been disposed of in terms of the judgment dated 13th June, 1996 and a decree for restitution of conjugal rights has been passed. The learned counsel submitted that even after the decree the petitioner-wife did not resume her conjugal life. The Court below decided all the issues in favour of the plaintiff-husband. According to the learned counsel, therefore, the question of payment of maintenance to the wife does not arise and by reason of passing of the decree, the application became infructuous. Learned counsel submitted that when the main suit stood disposed of, then the application under Section 24 of the Act does not survive. In this connection, the learned counsel relied upon the decision in the case of Nirmala Devi v. Ramdas, AIR 1973 Punj and Har 48. Learned counsel then submitted that admittedly the opposite party-husband is studying and he has not finished his study. Learned counsel submitted that it is not a case where the husband is able to work, but is not working; rather it is a case where he has been studying and for doing work he will have to leave his studies. According to the learned counsel, therefore, the principles of the law, canvassed by the learned counsel for the petitioner does not apply. In support of his contention, he has cited two decisions, one of Allahabad High Court in the case of Smt. Preeti Archana Sharma v. Ravindra Kumar Sharma, AIR 1979 All 29 and another of Mysore High Court in the case of N. Subramanyam v. M. G. Sarawathi, AIR 1964 Mysore 38.