1. The above revision has been filed against the order dated 1.8.1994 passed in I.A. No. 133 of 1991 while disposing of the main petition, H.M.O.P. No. 16 of 1988 on the file of the Sub-Court, Srivilliputhur. The petitioner herein husband has filed main O.P. under Section 13(1)(b) of the Hindu Marriages Act. 1955, for divorce on the ground that the respondent/ wife has deserted the petitioner for a continuous period of not less than two years immediately proceeding the presentation of the petition. It is seen that out of the wedlock a male and a female child were born and from May, 1984, onwards the respondent/ wife left without any reason deserting him, to her parents' house and in spite of best efforts taken she was not amenable even to the panchayat and having deserted the petitioner is entitled to divorce as payed for. The wife denied the claim of the husband pleading that the petitioner has contracted a second marriage and that he has been in the habit of ill-treating the respondent, that the petitioner is earning a sum of Rs. 4,000 and that for her maintenance and the maintenance of the children a sum of Rs. 2,000 will be required. An application in LA. No. 133 of 1991 was also filed by the wife seeking for a maintenance of Rs. 2,000 per month and also, a sum of Rs. 1,000 towards litigation expenses. Both the petition for divorce and application for maintenance were taken up for trial as could be seen from the issues framed in paragraphs 6 and 7 of the order. Learned Subordinate Judge, Srivilliputhur, granted ultimately divorce in view of the fact that on the material placed on record there was no possibility of both the petitioner and the respondent living together peacefully and amicably as husband and wife and the grant of divorce would be in the interest of both parties. At the same time while dealing with the application I.A. No. 133 of 1991 the court below came to the conclusion that a sum of Rs. 1,500 must be ordered to be paid per month towards the maintenance and a sum of Rs. 1,000 towards the litigation expenses. The application as well as the main O.P. as noticed earlier has been disposed of by a common order.
2. The husband has filed the above revision challenging the order in LA. No. 133 of 1991 on the ground that in the absence of any specific application under Section 25 of the Hindu Marriage Act, 1955, the court below could not have passed orders on an application really filed under Section 24 of the Hindu Marriage Act awarding maintenance which could have effect for a period beyond the disposal of the main O.P. which ended in favour of the petitioner. It is contended that to the extent the maintenance has been ordered for the period covering even period subsequent to the disposal of the main O.P. on a permanent basis the court below lacks jurisdiction when there is no application at all therefor and no trial or disposal of such an application.
3. Learned Counsel for the petitioner reiterated the said ground of challenge at the time of hearing of the revision by inviting my attention to the provisions contained in Section 25(1) of the Hindu Marriage Act which reads hereunder:
25(1) Any court exercising jurisdiction under this Act may, at the time of passing any decree or at any time subsequent thereto, an application made to it for the purpose by either the wife or the husband, as the case may be, order that the respondent shall pay to the applicant for her or his maintenance and support such gross sum or such monthly or periodical sum for a term not exceeding the life of the applicant as, having regard to the respondent's own income and other property, if any, the income and other property of the applicant, the conduct of the parties and other circumstances of the case, it may seem to the court to be just, and any such payment may be secured, if necessary, by a charge on the immovable property of the respondents.
The said provision which provides for the grant of permanent alimony and maintenance provides that any court exercising jurisdiction under the Act may at the time of passing any decree or any time subsequent thereto, on an application made to it for the purpose by either of the parties order for the payment of maintenance with consequential orders referred to thereunder to create a charge on the immovable property also of the party against whom such a grant is made.
4. On a careful consideration of the submissions made by the learned Counsel as also under the scheme underlying Section 25 of the Act I am of the view that an application made to it for the purpose contemplated under Section 25 of the Act shall have relevance to and has to be confined and limited to the cases of the claims made separately after passing of the decree in the main petition subsequent to the disposal of the main matter and the same cannot be construed as operating as a condition precedent for the grant of permanent alimony even when the court chooses to do so while disposing of the main petition itself as part of the said order and undertake an exercise in this regard simultaneously if that be the object underlying the provision, the words at the time of passing any decree or at any time subsequent thereto' would be rendered otiose and the legislature would have merely enacted the provision, even without those words and make the filing of the application a condition precedent for the grant of permanent alimony and maintenance by simply stating at any time on an application made to it for the purpose. Even during the trial of the main petition filed for any one of the reliefs contemplated under Section 10 or 13, there was always a possibility of the party affected or denied support claiming for maintenance even as part of the defence to the claim of the petitioner it is only on account of procedural prescription a separate application is visualised or contemplated whenever there is a claim for interim maintenance or litigation expenses. A reading of the provisions contained in Section 24 of the Act along side with Section 25 also will go to give substance to the construction placed by me as above. Consequently, in any view, the plea taken for the petitioner that unless a separate application is (be it during the course or at the time of passing the decree also) filed for permanent alimony and maintenance, the court could not have ordered for the payment under Section 25 of the Act is incorrect.
5. So far as the case on hand is concerned, at any rate, the objection of the nature cannot be countenanced. As noticed earlier, an application has been made for the grant of maintenance and litigation expenses. The court instead of passing orders during the pendency of the main petition has chosen to try the same along with the main petition itself and has passed a combined order dealing with the issues raised in his regard. It is beyond comprehension or even to think that there can be one rate of maintenance by way of interim maintenance and another rate for permanent maintenance. In the light of the findings and the view taken regarding quantum and having regard to the manner of disposal of the application filed in this case along with the main petition itself, it would not be legitimately contended by the petitioner that he had no opportunity to make submission on the claim made for or the quantum of maintenance. Consequently on the facts and circumstances of the case also the objection taken appears to be hyper-technical and do not merit acceptance. Sub-sections (2) and (3) of Section 25 contain sufficient safeguards and protection to have such orders varied, revoked or rescinded also. Insisting upon the formality of filing an application in every case is nothing but placing too much an emphasis on mere empty formality unmindful of the substance of the requirements of Justice particularly when as in this case, the petitioner had also an effective opportunity to show-cause against the claim for maintenance. In any view, the provisions of section 25 confers an enabling power upon the court itself while granting divorce or judicial separation to also pass an order for the maintenance of the wife. The contemplated application as noticed supra to be made by such parties has to be limited and confined to the case when the court while disposing of the main petition has not thought of passing an order for grant of maintenance and was silent on the said issue and not otherwise becomes essential or necessary to separately make an application even when the court chooses to decide about the same as part of the main petition particularly, as in this case by also disposing of simultaneously an application filed by the wife for maintenance along with the main petition for divorce. Consequently, I do not see any patent error of law or total want of jurisdiction in the court below to pass an order of the nature under challenge. That apart, I find substantial justice has been rendered to parties and the revision, therefore, fails and shall stand dismissed.