PUSHPA DEVI Vs. OM PRAKASH
HIGH COURT OF RAJASTHAN
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S.K.MAL LODHA, J. -
(1.)THE wife (petitioner) has fifed this revision under Section 115 CPC against the order dated March 15, 1984, of the Additional District Judge, Raisinghnagar, by which he awarded interim maintenance at the rate of Rs. 125/ - per mensem from the date of the application under Section 24 of the Hindu Marriage, Act (No. XXV of 1955) ('the Act' herein) filed by the wife and held that on the fife's application under Section 24 of the Act, her daughter who is living with her cannot be granted any maintenance. It is not necessary to recall the facts in detail, Suffice it to mention that the husband (non -petitioner) filed a petition under Section 13 of the Act for dissolution of marriage by a decree of divorce. During the pendency of the petition on July 21, 1983, an application was filed by the wife under Section 24 of the Act. It is necessary to quote the relevant portion of the application which runs as 3 .........[vernacular ommited text]........... This application was opposed the husband. A rejoinder was filed by the wife. Affidavits were filed. An opportunity was afforded to both the parties for cross -examination on the affidavits, but they did not express any desire to do that. The learned Additional District Judge awarded Rs. 125/ - per month as interim maintenance to the wife (petitioner) and also a sum of Rs. 500/ - as expenses of the proceedings. In the order under revision the learned Additional District Judge has stated as under:
.........[vernacular ommited text]...........
The wife has filed this revision praying for the enhancement of the interim maintenance.
(2.)A show cause notice was issued. Mr. A. R. Mehta has appeared on behalf of the husband (non -petitioner).
In view of the short law point involved in this revision, I consider it proper to dispose of this finally without requisitioning the record.
(3.)IT was contended by the learned Counsel for the petitioner that on the petitioner's application under Section 24 claim for maintenance of a child can be taken into account and that the learned Additional District Judge in not considering this has failed to exercise jurisdiction vested in him by law. Mr. A. R. Mehta learned Counsel for the non -petitioner supported the observations made by the learned Additional District Judge and submitted that in view of the language employed in Section 24 of the Act, no interim maintenance can be awarded to the children. Learned Counsel appearing for the parties except making their oral submissions did not cite any case taw on the point. There is divergence of judicial opinion on the point and t will briefly refer the cases on which I have been able to lay my bands. But before I do that, it will be relevant to refer to the provisions contained in Section 24 and 26 of the Act which are material for the purpose.
Section 24. Maintenance 'Pendente lite' and expenses of the proceedings: 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.
Section 26. Custody of children: 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 for minor children, consistently with their wishes, wherever possible, and may, after the decree, upon application by petition for purpose, make from time to time, all such orders and provisions with respect to the custody, maintenance education of such children as might have been made by such decree or interim orders in case the proceedings for obtaining such decree were still pending, and the court may also from time to time revoke, suspend or vary any such order and provisions previously made.
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