H V NANJAPPA Vs. VIMALA DEVI
HIGH COURT OF KARNATAKA
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(1.)The Petitioner before this Court filed an application under Section 13 of the Hindu Marriage Act against the Respondent praying for a decree for divorce. The Respondent who is the wife filed an application under Section 24 of the Act claiming interim maintenance and expenses of the proceedings. This has been granted and the Petitioner has been directed to pay her Rs. 15 per month towards maintenance and Rs. 50 towards her expenses.
(2.)The main ground urged against this order is that the order is not warranted by Section 24 of the Act which provides for grant of maintenance pendente lite and expenses of proceedings only against a respondent and not against a petitioner and that the terms petitioner and respondent relate to the substantive petition and not to any ancillary application. On the other hand it is contended for the Respondent that the words ' Petitioner ' and ' Respondent' are intended to apply to the applicant under Section 24 and the opposing party in respect of such application.
(3.)It has to be noticed that under Section 24 and 25 of the Act payment by way of maintenance and expenses of proceedings or permanent alimony and maintenance may be ordered either against the wife or the husband. This appears to represent a departure from similar provisions under other enactments which only provide for such payments to the wife and not to the husband. The intention undoubtedly is to place husband and wife on a footing of equality in regard to the liability for making such payments if other requisite conditions are established. This is made clear by the language of both the sections which enable either the wife or the husband on application to obtain an order against the respondent for such payment. The question however is whether the order under Section 24 could be made against the petitioner in the main proceedings whether such petitioner is the husband or the wife. The Section provides only for an order directing the respondent to make such payment to the petitioner. It is urged for the present Respondent that if it was the intention of the Legislature (Parliament) to confine such reliefs only to the Petitioner in the main proceedings the language in the relevant portion would have been " Where.......................it appears to the Court that the Petitioner has no independent income for her or his support and the necessary expenses of the proceedings... ." and not "Where.................it appears to the Court that either the wife or the husband as the case may be has no independent income........" On the other hand, it is urged for the present Petitioner that both in Sections 24 and 25 the word ' application' is used in regard to a claim for payment and in Section 25 the word ' applicant' is used when referring to the person making such an application, while the word ' petition' is used throughout the Act in regard to the substantive application, e, g., See Sections 9, 10, 11, 12, 13, 19, 20 and 23. It may also be added that in Section 14 of the Act, the word ' application ' is used in the context of seeking permission to present a petition for divorce within three years of marriage. It seems to me, however, that the use of the words ' petition', ' application', 'petitioner ' or ' applicant' is not in itself conclusive. It may for instance be observed that in Section 26 of the Act which provides for custody of children, the language employed is " upon application by petition for the purpose," which would indicate that an interlocutory application can also be a petition. It is well known that the two words ' petition ' and ' application,' are used interchangeably and the party ranged on the opposite side is variously called 'opponent,' 'counter-petitioner,' 'non-applicant ' or ' respondent.' Unless there is some demonstrable reason there appears to be no warrant for confining the meaning of the words ' petitioner ' and ' respondent' to the parties to the main petition and to hold that they do not apply to parties to interlocutory applications.
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