Allahabad High Court
Amit Kumar Sharma vs Vithe Additional District And Sessions Judge, Bijnor And Others on 8/5/1998
JUDGMENT
D.K. Seth, J.
1. Mr. V. Singh. learned counsel for the petitioner in this writ
petition, has raised a very Interesting question of law. According to
him. Section 24 of the Hindu Marriage Act does not postulate grant of
maintenance to any person other than the wife of the husband. According
to him, the very scheme of the Section indicates that the maintenance
is available either to the wife or to the husband, as the case may be.
according to the provisions contained therein. This cannot be stretched
to grant maintenance in a proceeding under Section 24 of the Hindu
Marriage Act to the children.
2. Secondly, he contended that the provision of Section 24 cannot be
referred to for the purposes of obtaining maintenance for the
mother-in-law of the respondent wife on an application under Section 24
of the Hindu Marriage Act. According to him by no stretch of
imagination, mother of the husband could be brought under the purview
of Section 24 of the said Act filed by the wife for the purposes of
grant of maintenance.
3. For the purpose of deciding the issue, it is necessary to mention
the following facts giving rise to the present writ petition- The
petitioner-husband filed O.S. No. 60 of 1995. under Section 13 of the
Hindu Marriage Act against the opposite party No. 3. wife, for divorce
before the Additional Civil Judge (Senior Division), II, Bijnor. In
connection with the said proceedings, the wife had filed an application
under Sections 24 and 25 of the Hindu Marriage Act claiming maintenance
for herself and two minor children aged about 3-1/2 years and 6 years
and ailing mother of the husband on the ground that she is looking
after the mother of the husband and spending around Rs. 1.200 per month
on account of her treatment. This application was allowed by an order
dated 25th January, 1997 in Misc. Case No. 44 of 1996.
4. The said order dated 25th January. 1997 was challenged by means of
appeal being Misc, Appeal No. 26 of 1997. By an order dated 30th May,
1997 the Additional District Judge. VIIIth Court. Bijnor, had dismissed
the said appeal and the order of learned Additional Civil Judge, Senior
Division II passed on 25th January, 1997 was affirmed. These two orders
are being challenged in this writ petition.
5. A reading of the order passed by the learned Civil Judge. Senior
Division shows that the maintenance of sum of Rs. 3,000 was granted
along with cost of litigation of Rs. 1,500 for the maintenance of the
wife, two children and her mother-in-law. The appellate court had
affirmed the said order which included the maintenance of mother of the
husband.
6. The wife had alleged that the husband has been working in the Police
Department and drawing a salary of Rs. 4.200 per month and he is also
owner of a Maruti Car No. DL 2-C 3108 which is operated as Taxi by the
husband by which he earns about Rs. 7.000-8.000 per month therefrom.
She also alleges that the husband is also owner of a truck from which
he earns about Rs. 17.000-18,000 per month. Thus he earns more than Rs.
21,000 per month. On these allegations the Courts had come to the
finding that a sum of Rs. 3,000 should be granted as maintenance. Both
the Courts have found that the husband did not disclose his own income
and did not controvert the allegations made by the wife.
7. [ have heard Shrl Slngh at length and have also heard Sri V. K. Rai
brief-holder appearing for the learned standing counsel who assisted
the Court since this matter involves questions of law.
8. Learned counsel for the petitioner Mr. Singh did not dispute the
finding by both the Courts that the husband did not disclose his income
nor, had disputed the factual allegations made by the wife in the
application under Section 24 of the said Act. However, he has insisted
on legal proposition as indicated above.
9. Mr. Singh also contended that no application under Section 25 could
be maintained and no order under Section 25 could be made during the
pendency of the proceedings. Such order can only be made at the time of
passing the decree. Therefore, according to him, the Courts below could
neither invoke the provisions of Section 25 nor the wife could file the
application under Section 25.
10. Section 25 of the Hindu Marriage Act clearly lays down that the
Jurisdiction under Section 25 can be exercised “at the time of passing
any decree or at any time subsequent thereto”. The very expression
referred to above indicates that no application under Section 25 could
be decided except at the time of passing of the decree. However, this
section does not make the provision attracted during the pendency of
the proceedings but the Court assumes jurisdiction to decide such
application only at the time of passing of the decree. The Court may
exercise its jurisdiction even after the decree is passed if such an
application is made for such purposes either by the wife or by the
husband. Therefore, Section 25 can be Invoked only at the time of
passing the decree or thereafter.
11. Now the application which was described as an application under
Section 24 and Section 25 of Hindu Marriage Act can very well be
treated to be .under Section 24 till the time of passing the decree and
so far as the claim made in the said application with regard to Section
25 is concerned, the same can be determined at the time of passing the
decree. The said application can be segregated into two phases.
Inasmuch as before the decree is passed. It is not necessary that an
application has to be made before the Court for such purpose though it
is mandatory that such an application is to be made after the decree is
passed. But then it is not necessary to go into this question. Still it
is open to the wife to make such application even before the decree is
passed and which may be decided accordingly. Therefore, it is not
necessary to go into the question at this stage whether the disposal of
the application under Section 24 and Section 25 of the said Act could
prevent the petitioner’s wife from making such an application, since
the Court has no jurisdiction to decide such an application except at
the time of passing the decree. In that event, the dismissal of such an
application cannot affect the question of Section 25 that might crop up
at the time of passing the decree. Thus scope of Section 25 is still
open to the wife if she is so advised.
12. It is a settled principle of law that any description of the
petition does not determine the character of the petition. It is the
content and the substance and the relief sought will determine the
character of an application. In this case wife had prayed for
maintenance during the pendency of proceedings for herself, minor
children and her mother-in-law (mother of the husband). Therefore, the
Court did not commit any illegality in deciding the said application as
an application under Section 24 of the said Act and treating the same
as such.
13. Now the question whether the mother can be brought into the purview
of Section 24 of the said Act may be taken up first. Section 24
provides as follows :
“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 the respondent, it may seem to the Court to be
reasonable.”
14. A plain reading of the Section shows that it contemplates
maintenance either to the wife or to the husband. It does not include
maintenance either for the children or the mother of the husband.
Whether the children would be entitled or not would be examined later
on. At the moment, it is clear from Section 24 that the provisions
thereof apply for the purpose of securing maintenance to the wife or
the husband. The maintenance under the Hindu Marriage Act is available
to the parties to the proceedings with regard to the lis involved. The
lis is confined to the extent of marriage between the wife and the
husband. There cannot be any lis for the mother in respect of the
proceedings between the husband and wife Involving their marriage. The
mother is in no way connected with the lis relating to the marriage
between the husband and the wife and, therefore, the provisions of
Section 24 can never be stretched to include the maintenance of the
mother in a proceedings under Section 24 of the Hindu Marriage Act.
15. Admittedly Section 125 of the Code of Criminal Procedure is
available to the parents against a neglecting child. Thus a mother can
enforce her right of maintenance through Section 125, Cr. P.C. She is
also entitled for maintenance through Section 20 of the Hindu Adoptions
and Maintenance Act, which also provides a right to the parent to
recover maintenance from neglecting children. Both Sections 125. Cr.
P.C. and Section 20 Hindu Adoptions and Maintenance Act are regarding
maintenance of parents by neglecting children. There is an alternative
remedy available, the Hindu Marriage Act being non-applicable in
respect of securing such maintenance by parent, the maintenance of the
mother-in-law (mother of the husband) cannot be brought under the
purview of the Section 24 of the said Act.
16. However, Mr. P. K. Rai tried to stretch the meaning of Section 24
by seeking to make out a point that the maintenance of the wife would
Include the maintenance for the mother-in-law on the ground that they
are living together, the wife cannot allow the mother-in-law to starve
while feeding herself. Similarly the wife cannot deprive the children
from education while maintaining herself alone with the maintenance
provided by the husband. The child is a part of the mother’s own
existence and similarly she cannot allow the ailing mother-in-law to
die without treatment while keeping herself alive.
17. The submissions made by Mr. Rai is very attractive and is also
supported by Indian Social Culture and Tradition. It is an admitted
fact that the Indian social fabric involves maintenance of the parent
with religious scruples and devotion but then the Court is called upon
to interpret the law and not the religious and social duties. So far as
the social or religious duties are concerned, the law provides therefor
through Section 125, Cr. P.C. and Section 20 of Hindu Adoptions and
Maintenance Act. Therefore, it is not a question of absence of law.
When there is specific provision of law on the basis of religious
scruples or social system, it would not be permissible to stretch
Section 24 to the extent of taking the place of Section 125, Cr. P.C.
and Section 20 of Hindu Adoption and Maintenance Act nor it can overlap
the said section. As the observation made earlier. Section 24 does not
postulate the scope of granting maintenance to the mother of the
husband even when she is ailing and lives with the wife. Thus so far as
the inclusion of mother-in-law of the wife within the ambit of grant of
maintenance is concerned, cannot be sustained.
18. Now. the question with regard to maintenance of children may be
taken up. Admittedly Section 24 does not postulate the maintenance of
children specially within the scheme of the said section. A section
cannot be interpreted out of context of the scheme of the Act itself.
For the purpose of interpretation of the section, the scheme of the Act
may be considered. Now admittedly if the children are minors and they
are form out of the wed-lock. then it is within the lis of marriage
since the children are the out-come of the marriage. Therefore, it
cannot be said that the children are out of the scope of marriage and
cannot be contemplated as subject-matter within the lis with regard to
their wellbelng. Section 26 provides for the custody, maintenance and
education of the children. It is also one of the aspect that has been
included within the ambit of the Act itself to provide for custody,
maintenance and education of the child. Thus, in any proceeding
relating to marriage, the questions of custody, maintenance and
education of the children are very much part of the lis.
19. As rightly contended by Mr. Rai. the children are part of the
existence of the mother, it is not only socially and culturally true
but also medically and physically true. Inasmuch as the children really
live in the womb of the mother for 9 months and the existence of the
children is developed out of the own existence of the mother. So long
the child is not bom, it is part of the mother even physically. Even
after the birth, the child cannot sustain without the mother. Thus, the
baby remains the part of the mother. At the same time, it is
preposterous to think that the mother would be feeding herself with the
maintenance provided to her keeping the children unfed, starved and
uneducated. It is the bounden duty of the mother to bring up the child
as best as she could be able to do. It is also a psychological
structure of the mental spirit of the mother to look after the
wellbeing of the children before her own self. It is no.t unknown and
is very common that the mother had sacrificed her own life for the sake
of the children. It is preposterous for the mother’ to think that if
the law does not provide maintenance for the children, therefore, the
mother should maintain herself without maintaining the children. Law is
meant for the society and society is not meant for law. Law is meant
for the wellbelng of the society itself. The Act itself has provided
for the wellbeing of the child as provided in Section 26. Therefore. It
seems that we can stretch Section 24 to what Mr. Rai wanted to stretch
even without the existence of Section 26 of the Act. But then such an
interpretation is supported by the very existence of Section 26 which
Itself goes to support the view as to why the wife should maintain the
child as well. Keeping such a situation in view, the Legislature has
provided in Section 26 for the custody, maintenance and education of
child.
20. While reading Section 24 in the context of the scheme of the Act
having regard to Section 26, it presupposes that the maintenance as
contemplated under Section 26 can very well be Included and prayed for
within the ambit of Section 24 of the said Act. Inasmuch as Section 26
provides two situations in which the same can be involved in the first
phase. Section 26 postulates :
“In any proceeding under this Act, the Court may, from time to time,
pass such interim orders and make such provisions in the decree as
it may deem just and proper with respect to the custody, maintenance
and education of minor children, consistently with their wishes,
wherever possible…..”
21. Thus, the above provision makes it clear that the Court has power
to make provision for custody, maintenance and education of minor
children either by way of interim order or by way of provision made in
the decree. If the Court may have power by way of interim order, it can
very well do it while deciding the application under Section 24 of the
Act. Section 26 as far as this fact is concerned does not postulate
that such order, interim or otherwise, can be made only upon the
application being made for the purpose. The expression ‘as it may deem
just and proper connotes that the Court may pass an order if it thinks
just and proper, even by way of interim measure without requiring the
necessity of making of an application for the purpose by any of the
party. It is the duty of the Court to make such provision for the minor
children as it may deem just and proper. It is also incumbent to look
into the wellbeing of the children as far as possible. Section 26 makes
it incumbent upon the Court to exercise such discretion on the basis of
facts and circumstances of the case with regard to the custody,
maintenance and education of the children.
22. Therefore, when deciding the application under Section 24 of the
said Act, the Court has every jurisdiction to include the children for
their maintenance and education and make adequate provision for the
purpose while granting maintenance to the wife under Section 24.
23. So far as the question that such provision can be made even when
application is supported by reason of framing of Section 26 which deems
a Stage subsequent to the decree. For the custody maintenance and
education of the children is concerned, it is for the Court to make
provision even after the decree is passed. But such provision can be
had only on the basis of an application. It is making two distinct and
separate compartments with regard to the stage before the passing of
the decree and subsequent thereto. It is evident by the two stages one
up to the decree and other after the decree. So far as the stage prior
to the decree, the Legislature did not indicate that the jurisdiction
under Section 26 is to be exercised only upon an application. Whereas
in respect of the stage after the decree, it had Indicated that such
provision can be availed of only through an application. When one
section confers two stages. Legislature deliberately omitted the
requirement of making application at one stage. Therefore, it cannot be
said that exercise of jurisdiction under Section 26 till the decree is
passed is dependent on an application as is the case after the decree
is passed. This is also supported from the very expression used in
Section 24 which is also invoked through an application as is expressed
in the said section to express “it may. on the ‘application of wife or
the husband”. Therefore, when Section 24 postulates making of an
application and Section 26 is divided in two stages and required making
of an application at the second stage, it can safely be interpreted
that no application is necessary for the first stage.
24. If no application is necessary for the custody and maintenance of
the children under Section 26 when” it is within the Rrst stage, then
it can very well be exercised under Section 24, while making provision
for the wife’s maintenance which will include the maintenance and
education of the children.
25. In the case of Smt. Jasbir Kaur Sehgal v. District Judge, Dehradun
and others, 1997. (7) SCC 7, the Apex Court while dealing with similar
question had held that under the Hindu Adoptions and Maintenance Act.
1956, it is the obligation of a person to maintain his unmarried
daughter if she is unable to maintain herself. In this case since the
wife has no income of her own. It is the obligation of the husband to
maintain her and her two unmarried daughters, one of whom is living
with his wife and one with him. Section 24 of the Act no doubt talks of
maintenance of the wife during the pendency of the proceedings but this
section cannot be read in isolation and cannot be given restricted
meaning to hold that it is the maintenance of the wife alone and no one
else. Since the wife is maintaining the eldest unmarried daughter, her
right to claim maintenance would include her own maintenance and that
of her daughter. This fact has to be kept in view while fixing the
maintenance pendente lite for the wife. We are aware of the provision
and Section 26 of the Act providing for custody of minor children,
their maintenance and education but that section operates in its own
field.
26. The view taken by the Apex Court in the above case supports the
view which I have taken in this case.
27. Therefore, I am unable to agree with the contention of Mr. V.
Singh. In my view, the maintenance of the children could very well be
included within the ambit of Section 24 of the said Act.
28. Mr. Singh had relied upon two decisions in support of his
contention. The first one is Bankim Chandra Roy v. Smt. Anjali Roy. AIR
1972 Pat 80, while interpreting scope of Section 24. It has been held
that the maintenance of children are not within the scope and ambit of
Section 24. It had observed in paragraph 3 of the said judgment as
follows :
“Coming to the merits of the orders. I find that the learned
Judicial Commissioner has allowed maintenance to the wife not only
for her support but also for the support of her three children all
of whom are above the age of 10. Ordinarily she would not be
entitled to their custody. But that apart let me read Section 24 of
the Act-
“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 the respondent, it may seem to the Court to be
reasonable.”
It would thus be seen that an order can be made if the petitioner
has no independent Income sufficient for her or his support. No
monthly allowance can be granted under Section 24 for the support of
the children. That being so, the grant of monthly allowance of Rs.
325 not only for the support of the respondent but also for the
support of the three children is contrary to law and has been made
by committing an illegality in exercise of the jurisdiction of the
Court under Section 24 of the Act.”
29. A reading of said Judgment shows that the said judgment had
proceeded only on the plain reading of the provision contained in
Section 24 of the Act. It did not examine the scheme of the Hindu
Marriage Act. Neither it had considered the Impact and implication of
Section 26 of the Act. The mere reasoning given in support of the view
taken is on the basis of a plain reading of Section 24 of the said Act.
Be that as it may. In view of the discussions made above. I am unable
to persuade myself to agree with the reason given in the said decision
where it has been held that Section 24 does not Include maintenance of
the children. The Judgment of the Patna High Court was delivered by a
learned single Judge. Admittedly the decision of an other High Court
has persuasive value but it is not binding.
30. For the foregoing reasons, I am unable to persuade myself to agree
with the connection of Mr. Singh as discussed hereinbefore.
31. The next judgment relied upon is in the case of Puran Chand v. Mst.
Kamla Devi. AIR 1981 J&K 5, wherein similar view was taken by a learned
single Judge. In the said judgment it was observed :
“Section 24 of the Hindu Marriage Act reads thus :
“Where in any proceeding under this Act it appears to the Court that
either the wife or 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 the
respondent, it may deem to the Court to be reasonable.”
On a plain Interpretation of this Section, a child born out of the
wedlock between litigating husband and wife is not entitled to
maintenance pendents lite. Such maintenance can be granted in favour
of the wife or the husband as the case may be. The maintenance is to
be allowed on monthly basis “during the proceeding’. The words
“during the proceeding” connote that the maintenance shall be
admissible from the commencement till the conclusion of the
proceedings in the trial court. The proceedings in the trial court
would naturally commence from the date on which the Issues are
framed, which is ordinarily known as the first hearing. In the view
expressed above, the lower court was not justified in allowing
maintenance. Pendente llte in favour of Raj an, the minor daughter
of the parties. Nor even in allowing such maintenance in favour of
the wife from the date of the filing of the petition.
The Court ought to have disallowed the request for maintenance
pendente lite so far as Rajan was concerned, and allowed the same in
favour of the wife from the date the issues were struck. Allowing
this appeal, 1 modify the order accordingly. There shall be no order
as to costs.”
32. For the reasons similar to one for which I have not been able to
persuade myself to agree with the judgment of Patna High Court, I am
unable to agree with the judgment of Jammu and Kashmir High Court.
33. Now turning to the merits of the case, it appears that both the
Courts had concurrently found that the wife has alleged that the
husband has an income of Rs. 4.200 from his salary and further a sum of
Rs. 17.000 to 18,000 from his business of plying Taxi and Truck.
Insplte of having been given an opportunity, the husband did not come
forward denying the allegations and did not produce anything to show
that the Income alleged by the wife was Incorrect. If both the Courts
accept that the Income of the husband is above Rs. 20,000 since the
same is not being controverted by the husband, this Court while sitting
in writ jurisdiction cannot interfere with the finding of fact,
therefore, the contention that normally 1/5 of the income is to be
awarded as maintenance in a proceeding under Section 24 as laid down in
various decisions cannot be sustained. Both the Courts below did not
believe the income of the husband to the extent of Rs. 4.200. on the
other hand both the Courts believed that the husband’s income is above.
Rs. 20,000 and. therefore. 1/5 of Rs. 20,000 comes to around Rs. 4.000.
Whereas the award is only Rs. 3,000 which is less than 1/5th,
therefore, it is not necessary to go Into that question. The point so
raised by “Mr. Singh is overruled.
34. Now admittedly if it is assumed that the husband has an income
above Rs. 20,000 in that event Rs. 3.000 for the maintenance of the
wife and two children is not at all towards the higher side. Having
regard to the present cost of living Rs. 3,000 is not even sufficient
for maintenance of the wife and the children. Even if the mother of the
husband is excluded even then the sum of Rs. 3,000 cannot be reduced.
35. Therefore. 1 do not find any reason to interfere with the award of
Rs. 3,000 as maintenance in the present case though however, the same
would be meant for the wife and children and not for the mother of the
husband. The order of both the learned Courts below is, therefore,
modified to the extent that maintenance is granted for the wife and
children to the extent Rs. 3,000 as granted by both the Courts below
concurrently. It is open to the mother of the husband to apply for
maintenance either under Section 125 or under Section 20 of Hindu
Adoptions and Maintenance Act as the case may be or as she may be
advised. If such steps are taken, that should be decided in accordance
with law without being influenced by any observation made in this order.
36. With the above observation, this writ petition for the foregoing
reasons, stands dismissed. However, there will be no orders as to costs.
37. Let a copy of this order be communicated to the Court below by the Registry within 7 days.