B.D. Agarwal, J. - (1.) THE Petitioner and the Respondent No. 2 is husband and wife having been married in 1970, On October 8, 1982 the Petitioner filed a petition in the court of the Civil Judge, Allahabad Under Section 13, Hindu Marriage Act, 1955, for divorce on various grounds. The petition is being resisted by the Respondent who applied on March 1, 1983 Under Section 24 of the Act for maintenance pendente lite and expenses of proceedings. This was opposed by the Petitioner. On September 17, 1.984 the Respondent No. 1 directed the Petitioner to pay Rs. 500/ - as expenses for litigation to the Respondent and Rs. 200/ - per mensem for maintenance of the Respondent and one female child aged about 9 years placed Under the custody of the Respondent. An application lore review made against this order was rejected on January 18, 1985. Earlier, it appears, the Respondent had applied Under Section 125 Code of Criminal Procedure, 1973 for grant of maintenance that was rejected on December 21, 1981 with 'he observation that the Respondent appeared to be earning nearly Rs. 200 -250/ - per month by sewing and embroidery work and that the income of the husband was in the neighborhood of Rs. 200/ - per month only. Revision filed against this order did not succeed; and application Under Section 482 of the Code at the Respondent's instance is pending. Aggrieved against the order made by the court below upon application Under Section 24 Hindu Marriage Act, the Petitioner has approached this Court.
(2.) SRI S.P. Srivastava learned Counsel for the Petitioner urged that in face of the order made Under Section 125 of the Code dated 21st December, 1981, the Civil Court could not direct payment of interim maintenance to the Respondent. The trial court, it is argued, was in error in declining to look into the order passed in proceeding Under Section 123 by the criminal court with the observation that the same is not relevant in these proceedings. Sri Radhey Shyam appears for the Respondent No. 2 has countered these contentions. With the consent of the counsel for the parties and since the affidavits have been exchanged already, the petition is being disposed of finally upon preliminary hearing. Section 24, Hindu Marriage Act deals with maintenance pending in proceedings under this Act and expenses so such proceedings. This section enables the court on the application of either spouse to order that the expenses of the proceeding be paid to the applicant and likewise a monthly sum during the proceeding, having regard to the applicant's own income and the income of the Respondent. The object is to ensure that a party to a proceeding does not suffer during the pendency of the proceedings by - reason of property and such party may be either the Petitioner or the Respondent in the petition in which the application is made. The grant of maintenance pendente lite and expenses Under Section 24 is discretionary with the court though such discretion has to be judicially exercised. The guiding principle would appear to be that if the applicant has no independent means he or she is entitled to maintenance and expenses, unless good cause is shown to deprive the applicant of it. The order exhausts itself with the conclusion of the main proceedings including the appeal filed if any.
(3.) THE right to maintenance Under Section 125 of the Code is independent of any proceeding for divorce or the like. Section 125 which corresponds to Section 488 of the old Code intends to serve a social purpose Jair Kaur v. Jaswant Singh : AIR 1963 SC 1521. In Nanak Chand v. Shri Chandra Kishore Agarwala : AIR 1970 SC 4,46 Sikari, J. pointed that the scope of the Hindu Adoption and Maintenance Act, 1956 and that of Section 488 was different and that Section 488 was applicable to all persons belonging to all religions and had no relationship with the personal law of the parties. The statutory right available to the wife Under Section 125 of the Code is unaffected, it has been held, by the provisions of the personal law applicable to her. The constitutions Bench of the Supreme Court, enunciated this recently also in Mohd. Ahmed Khan v. Shah Bano Begum, 1985 AWC 557 : : 1985 A CR 327 stating: Under Section 488 of the Code of 1898, the wife's right to maintenance depended upon the continuance of her married status. Therefore, that right could be defeated by the husband by divorcing her unilaterally as under the Muslim Personal Law, or by obtaining a decree of divorce against her in under the other systems of law. It was in order to remove this hardship that the joint committee recommended that the benefit of the provisions regarding maintenance should be extended to a divorced woman, so long as she has not remarried after the divorce. That is the genesis of Clause (b) or the Explanation to Section 125(1), which provides that 'wife' includes a woman who has been divorced by, or has obtained a divorce from her husband and has not remarried. Even in the absence of this provision, the courts had held under the Code of 1898 that the provisions regarding maintenance were independent of the personal law governing the parties. The induction of the definition of 'wife' so as to include a divorced woman lends even greater weight to that conclusion. 'Wife' means a wife as defined irrespective of the religion professed by her or by her husband. Therefore, a divorced Muslim woman, so long as she has not remarried, is a 'wife' for the purpose of Section 125. The statutory right available to her under that Section is unaffected by the provisions of the personal law applicable to her.;