DIFERENCIAS EN LAS CONDICIONES DE LA FORMACIÓN

Object ... 46 Allegation of adultery ... 49 Alternative forums ... 50 Appeal ... 51 Appeal under Family Court Act ... 51 Award to children ... 52 Burden of proof ... 53 Challenge in Appeal ... 54 Challenge in revision ... 56 Civil Procedure Code is applicable . 56 Comparison between Hindu Adoptions & Maintenance Act & Hindu Marriage Act, 1955 ... 57 Compliance of order ... 57 Computation ... 58 Conclusion of proceedings ... 59 Conditions for granting

maintenance ... 60 Conduct of parties ... 61 Consent order... 62 Considerations for granting

maintenance ... 62 Date from which amount granted .... 65 Delay in disposal... 68 Denial of marriage ... 69 Determination of amount ... 70 Discretion of Court ... 71 Dismissal of main petition ... 73 Disputed marriage ... 76 Distinction with alimony ... 77 Distinction with Section 125 Criminal Procedure Code ... 78 Duration of payment ... 78

Duty of husband ... 80 Effect of interim maintenance ... 81 Effect of non payment on appeal ... 81 Effect of operation of Hindu Adoptions & Maintenance Act ... 82 Enforcement of order ... 82 Enhancement of amount of

maintenance ... 84 Entitlement of children ... 84 Filing of written statement... 85 Form of order ... 86 Forum of appeal ... 86 Grant in Revision ... 87 Independent income of wife ... 87 Jurisdiction of Family Court ... 88 Jurisdictional issue ... 89 Justification for living separately .... 89 Letters patent appeal ... 89 Litigation Expenses ... 90 Meaning of “Maintenance” ... 90 Meaning of support ... 90 Modification of order ... 90 Multiple remedies ... 91 Necessity of affidavit ... 92 Necessity of reconciliation ... 92 Necessity to grant maintenance ... 93 Non working husband ... 93 Non-compliance ... 93 Object of Hindu Adoptions &

Maintenance Act ... 94 Order under Criminal Procedure Code, 1973 ... 94 Pendency of proceedings ... 94 Postponement of Application ... 96

Power of Appellate Court ... 97 Power of Court ... 100 Procedure for disposal of application ... 101 Proceeding for restitution of conjugal rights ... 102 Procedure of enquiry ... 102 Proof of marriage ... 103 Quantum of interim maintenance ... 104 Quick disposal ... 108 Reasonable amount ... 108 Reduction and enhancement of amount ... 108 Refusal of maintenance to pressurise ... 109 Resjudicata ... 109 Retrospective effect ... 109 Right of Children... 109

Scheme under Hindu Marriage Act, 1955 ... 112 Scope of enquiry ... 115 Scope of entitlement ... 116 Scope of expenses ... 117 Scope of Liability ... 117 Second Appeal ... 118 Second marriage ... 118 Striking off defence ... 119 Enforcement of order ... 120 Unchastity ... 120 Urgency ... 121 Waiver ... 121 Withdrawal of application ... 122 Withdrawal of main petition ... 122 Working wife ... 123 Written statement ... 124

Introduction

There are various provisions of different statutes dealing with personal laws which deal with the question of maintenance pendente lite. These statutes are Hindu Marriage Act, 1955, Special Marriage Act, Parsi Marriage Act, 1936 and Indian Divorce Act. The relevant provisions of these statutes are extracted hereafter.

Section 24 of Hindu Marriage Act, 1955 is as under:

Maintenance pendente lite and expenses of 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 39 of Parsi Marriage & Divorce Act, 1936 is as under: Alimony pendente lite.— Where in any suit 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 suit, it may, on the application of the wife or the husband, order the defendant to pay

Maintenance pendente lite—Introduction 45

to the plaintiff, the expenses of the suit, and such weekly or monthly sum, during the suit, as, having regard to the plaintiffs own income and the income of the defendant, it may seem to the court to be reasonable.

Section 36 of Indian Divorce Act, 1869 is as under:

Alimony pendente lite.— In any suit under this Act, whether it be instituted by a husband or a wife, and whether or not she has obtained an order of protection the wife may present for alimony pending the suit.

Such petition shall be served on the husband; and the Court, on being satisfied of the truth of the statements therein contained, may make such order on the husband for payment to the wife of alimony pending the suit as it may deem just:

Provided that alimony pending the suit shall in no case exceed one-fifth of the husband’s average net income for the three years next preceding the date of the order, and shall continue, in case of a decree for dissolution of marriage or of nullity of marriage, until the decree is made absolute or is confirmed, as the case may be.

Section 36 of Special Marriage Act, 1954 is as under:

Alimony pendente lite.— Where in any proceeding under Chapter V or Chapter VI it appears to the District Court that the wife has no independent income sufficient for her support and the necessary expenses of proceeding, it may, on the application of the wife, order the husband to pay to her the expenses of the proceeding, and weekly, or monthly during the proceeding such sum as having regard to the husband’s income, it may seem to the Court to be reasonable.

The right of a wife for maintenance is an incident of the status or estate of matrimony. In general, therefore, the husband is bound to defray the wife’s costs of any proceeding under the Act and to provide for her maintenance and support pending the disposal of such proceeding. The doctrine of alimony, which expression in this strict sense means allowance due to wife from husband or separation from certain causes, he its basis in social conditions in England under which a married woman was economically dependent and almost in a position of tutelage to the husband and was intended to secure justice to her while prosecuting or defending proceedings under matrimonial law. In view of Section 24 of the Hindu Marriage Act and the decision rendered above that the law relating to matrimonial causes provides for rules for payment of maintenance pendente lite and express of proceeding by the husband to the wife. Section 24 of the Hindu Marriage Maintenance Act

adopts those principles and goes radical step further when it prescribes that any such order can be made not only in favour of the wife but also in favour of the husband.1

The right of a wife is general for maintenance is an incidences of the status of matrimony. The husband in general is under an obligation to defray the wife’s cost to any proceedings and to provide her with maintenance and support during the pending legal proceedings under Hindu Marriage Act. Alimony strictly speaking is a maintenance allowance given to a wife by husband on separation. It is well recognised in civilised society that a wife having no independent means of subsistence and maintenance is entitled to alimony pending matrimonial proceedings and costs thereof. It is this principle which has been incorporated in Section 24 of the Hindu Marriage Act. As a matter of fact the section goes beyond the classical concept of the doctrine of alimony inasmuch as it recognises the right even of a husband who has no sufficient means for his support to claim alimony pending the proceedings from a wife having means. 2

Object

The object of this Section is that neither party may suffer by her or his inability to conduct the proceedings for want of money for expenses. The real object of the maintenance is to support the party without means during pendency of proceedings. 3

Very purpose of grant of interim alimony the amount of costs under Section 24 of the Act is to see that the party who is helpless and unable to maintain oneself during pendency of the proceedings and who has no sufficient means for fighting the litigation, is, awarded interim alimony. Thus this provisions of Section 24 of the Act go to show the objection is to see that the litigation initiated by the other side could properly be defended and interim maintenance could be given it’s the applicant. Having once found by the trial court that the party is entitled to such fund of alimony and not paid by the party against whom the order is passed, has no other remedy for recovery of such amount or other remedy and if the proceedings are not stayed as requested by the party in whose favour the order is passed and which is not complied by other party, the very object of Section 24 may be frustrated. The object of Section 24 is no provide necessary funds to the needy spouse to

1 _{Jyotiben Samir Pawar vs. Samir Bhaskarrao Pawar, II (2001) DMC}

84 Gujarat: AIR 2001 Gujarat 165.

2 _{Lallubhai v. Nirmalaben, AIR 1972 Gujarat 174.}

Maintenance pendente lite—Object 47

prosecute the proceedings as well as to maintain himself or herself during pendency of the proceedings. The application preferred by the wife to stay the proceedings initiated by the husband, for non-compliance of the order of the court, is rejected without proper examination and appreciation of the facts and Section 24 by trial court is passing the impugned order. There fore, impugned order has resulted into miscarriage of justice.1

The amount made out under section 24 of the Hindu Marriage Act is reasonable amount to meet the expenses to the Court proceedings and also of the maintenance regarding food, lodging, travelling expenses and other necessary expenses during the period of litigation. This is not mere maintenance allowance as is to be paid under any provision of the Hindu Adoptions & Maintenance Act, 1956 or under Section 125 of the Code of Criminal Procedure. Under Section 24 of the Hindu Marriage Act the allowance which is to be allowed must be reasonable besides the maintenance, also to meet expenses of the Court proceedings. Therefore, in these circumstances, this has no relation to the mere maintenance of the child or the lady.2

An order under Section 24, Hindu Marriage Act for maintenance pendente lite and expense of the proceeding in a matrimonial proceeding is obviously passed to provide the weaker spouse with such fund as may be reasonably necessary for her or his support and for the carriage of the litigation and such an order automatically comes to an end with the termination of the main proceeding in the Court which passed the order. The proceeding being rather summary in nature, the object of the order. The proceeding being rather summary in nature, the object of the order being ad hoc and duration of the order being temporary the approach of the Court to an order should be ut res magis valeat guam pereat, to sustain it wherever possible and not to interfere unless intervention is irresistible in law.3

Whatever previously might have been the right of the wife to claim maintenance as an incident of the status of matrimony on the establishment of the relationship of wife and husband, now, under Section 18 (1) of the Hindu Adoptions & Maintenance Act, which came into operation on 21.12.1956, a Hindu wife, whether married before or after the commencement of that Act, shall be entitled to be maintained by

1 _{Shivilaben vs. Prahladbhai, 1995(3) CCC 466 Gujarat.}

2 _{Sangeeta Sexena vs. Gyanendra Saxena, II (1995) DMC 78 MP:}

1996(3) CCC 178 (MP).

3 _{Utpal Kumar Banerjee vs. Manjula Debi Banerjee, I (1989) DMC}

her husband during her lifetime. Section 18 (2) of that Act enumerates the circumstances, under which, a Hindu wife is entitled to live separately from her husband, without forfeiting her claim to maintenance. Thus, the right of the wife to claim maintenance from the husband, even in those cases falling under Section 18 (2) of the Hindu Adoptions and Maintenance Act, when she is obliged to live separately from her husband, is a statutory one. The method and manner of enforcing this right, would necessarily depend upon the circumstances obtaining in any particular case. It may be that in a given case, the wife may resort to proceedings under Section 125. Cr.P.C. in the hope and with the expectation that she would get quicker and speedier relief in those proceedings. Equally, it may well be that a wife may resort to proceedings before a Civil Court for the enforcement of such right. Those, however, may at best be characterized as the adoption of different methods for the enforcement of the right to maintenance. It is necessary in this connection to remember that the right conferred under Section 24 of Hindu Marriage Act, is in the nature of a special right, arising on initiation and during the pendency of the proceedings by one or the other of the parties to the marriage, under the provisions of that Act. Under Section 24 of the Hindu Marriage Act, the pendency of proceedings under that Act, is an essential condition for the exercise of the right either by the wife or the husband, as the case may be seek an order for payment of the expenses of the proceeding and a monthly sum sufficient for his or her support. It is thus clear that the right to claim maintenance or litigation expenses under Section 24 of Hindu Marriage Act, is not made available generally to the parties to a marriage, but only when a proceeding between the spouses is pending under that Act, and in that respect, the right conferred under Section 24 of that Act, is in the nature of a special statutory right not in any manner outside the provisions Section 24 of Hindu Marriage Act. The purpose behind Section 24 of Hindu Marriage Act is that parties to a matrimonial cause should not take undue and unfair advantage of a superior financial capacity to defeat the rightful claims of a weaker party and the proceedings under Section 24 of that Act serve a limited purpose, i.e., during the pendency of proceedings under that Act, to enable the weaker party to establish rights without being in any manner hindered by lack of financial support. If the special nature of the statutory right under Section 24 of that Act and its purpose and borne in mind, it is at once clear that the enforcement of that right, cannot in any manner be hedged in by a consideration of proceedings otherwise initiated, either under Section 125, Cr.P.C. or under the ordinary law.1

Maintenance pendente lite—Allegation of adultery 49

Section 24, Hindu Marriage Act deals with maintenance pending in proceedings under this Act and expenses as such proceeding. 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 poverty 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 to shown to deprive the applicant of it. The order exhausts itself with the conclusion of the main proceedings including the appeal filed if any.1

Allegation of adultery

There is nothing in Section 24 to prevent a Court from taking into consideration the conduct of the parties. But that is too spacious a contention since at least in the original proceedings if this point is conceded, it would require the Court to judge the merits of the rival contentions of the parties when deciding an application for interim alimony and if such an exercise is permitted the Court’s discretion would be fettered merely by the nature of the allegations made in the petition and would be compelled to examine the merits of the same at least prima facie.2

Simply because a suit for divorce is filed on the allegations of adultery the wife will not be deprived off her right to get maintenance pendente lite and expenses of proceeding to defend herself. It is true that it suit for divorce is decreed after trial on the ground of adultery then wife will not be entitled to get permanent alimony and maintenance under Section 25 of the Hindu Marriage Act because adultery alleged against her is proved. But at the stage of the proceeding under Section 24 of the Hindu Marriage Act, 1955 adultery is only alleged. There is large

1 _{Shrichand vs. IV Additional Dist Judge, Allahabad, Santosh}

Kumari, I (1986) DMC 91 All: Narendra Kumar Mehta vs. Suraj Mehta, I (1982) DMC 242 AP: AIR 1982 AP 100: (1982) 1 APLJ (HC)113L (1982) 1 Andh WR 452L 1982 Hindu LR 387: Ivan vs. Zena Eramus, I (1982) DMC 295 All: AIR 1982 All 194: 1982 All WC 163: 1982 (8) All LR 142: 1982 All CJ 193: 1982 Mat LR 174.

2 _{Dwarkadas Gurumukhdas Agrawal vs. Bhanuben, I (1987) DMC}

gap between “adultery alleged” at the stage of proceeding under Section 24 of the aforesaid Act and “adultery found to be proved by Court trial” at the stage of proceeding under Section 25 of the said. Act.1

The opening words of Section 24 invests a spouse lacking sufficient means for his or her support to claim maintenance pendente lite and the costs and expenses of the proceedings under the Act which includes, inter alia, for divorce or nullity of void or voidable marriage. On the plain regarding of Section 24, alimony is a concomitant of a marriage in fact. On an admission or proof of a factum of marriage, alimony is a right of either of the spouses lacking means of his or her support. It would be no answer to such claim that the marriage is void or voidable. It would be imprudent on the part of the Court to ignore the principle that a de facto marriage necessarily carries a right carries a right to alimony pendente lite for an incapacitated spouse and the ultimate outcome of substantive proceedings cannot have a back-fire so as to negative such a right. If the allegation, or for that matter the conduct of the party claiming maintenance or expenses pending the proceedings is allowed to have such an over-bearing effect so as to negative such a claim it would be tantamount to prejudging the issues which is to be tried in the substantive proceedings.2 If the conduct of a spouse claiming such a right is to be considered so relevant in the original proceedings as to negative the right which the law has invested in a spouse lacking the capacity for his or her maintenance, the Legislature would have certainly provided to that effect as it has done in Section 25 of the Hindu Marriage Act. It can be urged with force that the conduct of a spouse claiming such a right is entirely irrelevant since otherwise the Legislature would have made an appropriate provision in