- (1.) IN this writ application, the petitioner has prayed for quashing the order dated 26.2.2005 passed in Title Suit No. 59 of 2004 whereby the Court below has allowed Rs. 1000/ - per month as litigation cost and also a sum of Rs. 38,913.58 as the cost of medical treatment to the respondent.
(2.) LEARNED counsel for the petitioner submitted that the Court below, while passing the said order, has failed to take into consideration that the respondent's claim of expenses on medical treatment was of the date prior to the institution of the suit and the same does not come within the ambit of Section 24 of the Hindu Marriage Act. The Court below has not made it clear that under which provision said order has been passed, but since the litigation expenses have been directed to be paid, it must have been passed under Section 24 of the Hindu Marriage Act, 1955. It has been submitted that the monthly litigation expense has been claimed without any basis and the Court below has arbitrarily granted the same. A counter affidavit has been filed on behalf of the respondent, stating, therein, that the order is perfectly sound and legal and that the same has been passed after taking into consideration all the relevant facts and materials on record. It has been further stated that the petitioner has got no source for her maintenance and she is entitled to get maintenance.
(3.) AFTER hearing the parties and perusing the materials on record, it is evident that the Court below has not specifically mentioned as to whether medical expenses are of the period before the institution of the suit or of the period after the suit is filed. The provision of Section 24 of the Hindu Marriage Act provides for maintenance during the proceeding before the Court and it does not provide for any payment towards a claim of pre -litigation period. In that view the part of the impugned order, directing the payment of sum of Rs. 38,913.58 is set aside. Though the respondent has stated that she is entitled to get monthly maintenance, there is no order to that regard in the impugned order rather there is a direction of payment of monthly litigation cost While this Court does not find any error in the part of the order whereby the Court below has directed the petitioner to pay the litigation expenses to the respondent, no order can be passed by this Court regarding payment of monthly maintenance to the petitioner in absence of relevant material on record. However, the respondent is at liberty to make prayer for payment of interim maintenance including medical expenses during the pendency of the suit in the court below. If such prayer is made, the learned Court below shall consider the same and pass order in accordance with law, after giving the parties due opportunity of hearing.;