The right of a wife for maintenance is an incident of the status or estate of matrimonial. In general, therefore, the husband is bound to defray his wife’s costs of any proceeding under this Act and to provide for all alimony, which expression in its strict sense means allowance due to wife from husband on separation from certain causes, has its basis in social conditions in English under which married woman was economically dependent and almost in a position of tutelage to the husband and was intended to secure justice to her when prosecuting or defending proceeding under matrimonial law, it is also recognized that when the wife has separate means sufficient for her defence in subsistence she should not be entitled to alimony nor costs during the proceeding and if the husband has neither property nor earning capacity the Court would not award any interim alimony. It is on these principles that the law relating to matrimonial causes provides for rules for payment of maintenance pendente lite and expenses of proceedings by the husband to the wife this section adopts those principles and those one radical step further when it lays down that any such order can be made not only in favour of the wife but also in favour of the husband.
Object- The object is to prevent vagrancy and destitution and also to provide quick and summary remedy to a class of persons who are unable to maintain themselves.
It is true that this is a measure of social justice and specially enacted to protect women and children and falls within the constitutional sweep of Article 15(3) reinforced by Article 39 of the Constitution, as observed by the Supreme Court in the Ramesh Chander’s case (supra). But then, Section 125, Cr.P.C. can be invoked by a wife only when she is unable to maintain herself. The expression “unable to maintain” connotes that the wife, has no other means or source to maintain herself. Inability on the part of the wife to maintain herself is undoubtedly a sine qua non for the grant of maintenance allowance under Section 125, Cr.P.C. If a particular wife has some other means or source sufficient to maintain herself, there would be no point in awarding any further allowance in her favour so long such means and source continues to subsist.
In a for example case, the wife has already obtained an order from the Matrimonial Court directing the husband to make payment of Rs. 700/- per month towards her own maintenance pendente lite under Section 24 of the Hindu Marriage Act and another order (the impugned order) from the Magistrate’s Court under Section 125, Cr.P.C. directing payment of a sum of Rs. 800/- per month by the husband towards her maintenance. It has not be contended on behalf of the wife-opposite party that the amount of Rs. 800/- that has been awarded by the Magistrate under Section 125, Cr.P.C. by the impugned order is not at all sufficient to meet the requirements of her maintenance according to her standard of life. She has not assailed the impugned order of the Magistrate with regard to the quantum of allowance that has been awarded by the impugned order. We can, therefore, take it for granted that, for the present, a sum of Rs. 800/- would be sufficient for her maintenance per month. Viewed from this angle, allowing the plea of adjustment, in such a case, would not in my opinion, militate against the object of Section 125, Cr.P.C.
If, on the other hand, the husband petitioner’s plea of adjustment be negatived only on the ground that the order under Section 24 of the Hindu Marriage Act is a temporary order and not a final determination of the exact quantum to which the wife would be entitled as of right towards her maintenance allowance or on the ground that the Magistrate’s jurisdiction to grant maintenance allowance under Section 125 remains unaffected by the order under Section 24 of the Hindu Marriage Act, it would virtually mean saddling the husband-petitioner with a liability to comply with both the orders and make the double payment of maintenance allowance, irrespective of the question other actual requirements of her maintenance.
The order under Section 24 may be temporary and not a final determination and it is true that if an order for permanent alimony is made under Section 125, it will automatically supersede the alimony pendente lite. But, if the amount of maintenance pendente life is discernible from the order under Section 24 and if the said amount is paid by the husband there is no reason for disallowing adjustment of such payments against the amount awarded under Section 125, even if the latter amount is quite sufficient for the wife’s maintenance. If such payment is temporary, the adjustment will also be temporary and will continue to be made as long as the payment would be made. The mere fact that the order under Section 24 is temporary cannot thus constitute a good ground for making claim for adjustment inadmissible if it is otherwise admissible for the purpose. Adjustment cannot, however, be allowed as a matter of course. Whether such a plea would be admissible would depend upon facts and circumstances of each particular case.
Ref: Sailendra Nath Ghosh vs State Of West Bengal And Anr[Calcutta High Court] -1998 (1) ALT Cri 17, I (1998) DMC 487
Disclosure of Income by Husband
Supreme Court in Hiralal v. Badkulal, Their Lordships observed “we are of opinion that as a matter of onus under Section 106 of the Evidence Act and also otherwise under the principle enunciated in the aforesaid decisions of the Privy Council and the Supreme Court, it was for the husband to disclose his income and he not having done that and not having also specifically denied the amount alleged by the wife to be his income, we would have to go by such allegation for the purpose of this application. The learned Counsel for the petitioner then relied’ in another decision of Hon’ble Division Bench reported in 1986 (90) CWN 816, Somen Ghosh v. Bani Ghosh (nee Sen). The learned Counsel relied on Paragraphs 4 and 5 of this judgment which is quoted hereinbelow :–
“4. The Court under Section 24 of the Hindu Marriage Act, 1955, has been given a wide discretion in the matter of granting alimony pendente lite but the discretion is judicial and not arbitrary or capricious. It is to be guided on sound principles of matrimonial laws and to be exercised within the ambit of the provisions of the section and having regard to the object of the Act’ (vide Mulla’s Hindu Law, 15th Ed. Page 873). In fixing the sum of maintenance and legal expenses to be paid to the petitioner, who makes an application under Section 24 of the Act, the Court shall have regard to the petitioner’s own income and income of the respondent. But we are unable to accept the contention of Mr. Mukherjee on behalf of the petitioner, that as there was no evidence that his client was receiving any income or salary, no order under Section 24 of the Hindu Marriage Act ought to have been made in favour of the wife, the opposite party to the Revisional Application. Mr. Mukherjee in this connection had drawn our attention to the discussion under the heading “Has No Independent Income Sufficient” in Mulla’s Hindu Law, 15th Ed. Pages 872-73. The said passage does not really support the contentions of Mr. Mukherjee. Because it has been observed therein : “It is also implicit in the section that the order would not be made if the respondent to the application is shown to have no property nor earning capacity or is shown to have very small income. But the fact that the respondent is not receiving any income from property for the time being would not be sufficient answers to the claim…………………”. Reference may also be made to the discussion on the point at Page 885 of the aforesaid book on the subject of assessment of quantum of maintenance payable under Section 25 of the Hindu Marriage Act. The learned author has inter alia observed : “It would also be open to take into account the earning capacity of the husband as well as the wife. The Court has ample discretion and in a deserving case may ascertained not. only what money’s the husband had but what money he could have had if he liked and take into consideration his capacity and ability to provide maintenance. The Court will look at the realities and not permit itself to be misled by appear ances”. Rayden on Divorce, Vol. I, 13th Edn. in Notes at Pages 872-873 with reference to the provisions of Matrimonial Clauses Act, 1973 makes similar observations.
Ref: Smt. Chandana Guha Roy vs Goutam Guha Roy [Calcutta High Court]-AIR 2004 Cal 36, I (2005) DMC 607
When the main application has been allowed to be dismissed as withdrawn, whether the interim order could be executed
In 1969-1 MLJ 328, Krishnan v. Thailambal, a similar question came for consideration. Thereafter getting an order of interim maintenance, the main application was allowed to be withdrawn. The person in whose favour interim order was passed, sought to implement the interim order. The question was, when the main application has been allowed to be dismissed as withdrawn, whether the interim order could be executed. A learned Judge of Madras High Court (Justice K.S. Venkataraman) held thus :
“Section 24 of the Hindu Marriage Act contains no limitation that an order for interim maintenance and expenses made thereunder will cease to have force if the husband against whom the order is passed Chooses to withdraw the proceedings for nullity of marriage initiated by him. When the husband chooses to drag the wife to the Court by filing a proceeding and if it is shown that the wife has no independent income, the husband must necessarily provide her with interim maintenance and the necessary expenses and he cannot be allowed to wipe out this liability after the order is passed by choosing to withdraw from the petition. His being allowed to do so would only amount to harassment of the wife, for the expenses might have already been incurred by the wife.
Section 24 applies not merely to the respondent in the main petition but could also be invoked by the petitioner in the main petition itself, whether it be the wife or the husband. When the provision is of such a far reaching character, it would defeat the purpose of the provision of the Court were to hold that the benefit of the section is to depend on the caprice of the petitioner in not choosing to proceed with the main petition.”
A Division Bench of the Mysore High Court has also taken a similar view in the decision reported in AIR 1971 Mysore page 25, B.M. Muniratnam Naidu v. Shantamma. At page 26 in paragraph 4 of the judgment, it has been held thus:
“It is clear from a reading of this section that maintenance and expenses of litigation could be ordered to be paid to the wife or husband, as the case may be, during the pendency of the proceeding. This provision has been made by the Legislature to see that if the husband or the wife is to contest an application under any of the provisions of this Act and if he or she has no means for his or her maintenance or to meet the cost of litigation, the other spouse should be ordered to maintain the indigent spouse and also pay the expenses of the litigation. This has been done on considerations of public policy. When once an order has been passed under this section, no matter what happens to the petition thereafter, the liability to pay maintenance and expenses of the litigation in respect of the period during which the proceedings were pending, cannot be avoided. The subsequent dismissal of the petition does not exon- erate the liability already incurred.”In , Sohan Lal v. Smt. Kamlesh, the question that came for consideration was, whether an application under Section 24 of the Hindu Marriage Act could be proceeded with when the main petition itself has been disposed of, and whether any order could be passed after the disposal of the main petition. In that case, application for interim maintenance and litigation expenses was filed. But the same was not disposed of. After the disposal of the main petition, the wife wanted the interim application to be proceeded with. The jurisdiction of the Court to pass an order under Section 24 of the Act was considered. A Division Bench of that Court, after overruling the judgment of a learned Single Judge of that Court, held thus :
“The object of enacting Section 24 of the Act is that an indigent spouse should not suffer during the pendency of the proceedings because of his/her poverty. It is the duty of the Court to decide such an application expeditiously so that the indigent spouse is not handicapped because of want of funds. However, if the application under Section 24 is not decided during the pendency of the main petition on account of dilatory tactics of the other spouse or for some unforseen circumstances, the whole purpose of the section stands frustrated in case it is dismissed on the ground that after the decision of main petition it does not survive. Therefore, even if the main petition is decided finally, the application under Section 24 which is pending decision can continue. Similarly a revision petition filed against order under Section 24 can continue inspite of disposal of the main petition.”
In view of the settled legal position, it could be safely concluded that an order passed on an application under Section 24 of the Hindu Marriage Act could be executed and the fruits of the order could be recovered even after the disposal of the main petition. [ Madras High Court- R. Kuppuswamy vs Kanagalakshmi [II (1998) DMC 431, (1997) IIMLJ 602]
Madras High Court in R.Karuppusamy v. Kanagalakshmi, 1997 (III) CTC 442. That was a case where interim alimony was ordered to be paid in an Interlocutory Application. But, that amount was not paid. Therefore, an execution proceeding was initiated. The said execution proceeding came to be initiated after the dismissal of the main petition filed for restitution of conjugal rights. A contention was raised before Madras High Court that after the dismissal of the main petition filed for restitution of conjugal rights, the order made in Interlocutory Application for interim alimony cannot be enforced. It was rightly negatived the said contention. In my considered opinion too, an amount which had fallen arrears can be recovered only by enforcing the order for interim alimony. This is very obvious from the provision contained in Section 28-A of The Hindu Marriages Act which provides enforcement of all decrees and orders made by the court in any proceeding under this Act shall be enforced in the like manner as the decrees and orders of the court made in exercise of its original civil jurisdiction. Thus, an order for interim alimony is an executable order which can be executed like the civil court decree.