Smt. Subhasini v. B.R Umakanth .

Srinivasa Iyengar, J.:— The learned single Judge has referred this revision petition to a Division Bench on the ground that there is some conflict between the decision reported in the case of Parashuram Rao Ananthrao Pise… v. Pratibha Parashuram Rao Pise….(1) and the decision reported in the case of Mrs. Sudha alias Sri Devi, Mangalore-3 v. B. Narasimha Pai, Mangalore(2).

2. The petitioner has filed this revision petition against an order made by the Principal Civil Judge, Bangalore City under section 24 of the Hindu Marriage Act, 1955 directing payment of Rs. 275 per month in order to meet the expenses and in order to support herself during the pendency of the main petition for divorce filed by the respondent/husband. The plea is that the amount awarded is inadequate.

3. The learned Judge permitted the conversion of the revision petition into a Miscellaneous appeal following the decision of this Court in the case of Parashuram Rao Anantha Rao Pise. Subsequently the decision of this court in the case of Mrs. Sudha alias Sri Devi was brought to his notice in which it has been held that no appeal would lie under Section 28 of the Hindu Marriage Act. In the light of this, the earlier order was recalled by the learned Judge and this reference has been made.

4. There is no conflict between the two decisions referred to above. Section 28 of the said Act was amended by Act 68 of 1976. As the provisions stood earlier thereto, an appeal was maintainable against every order made under the Act except in respect of order for costs. But by virtue of the amendment, an appeal was provided against all the decrees made by the court in a proceeding under the Act except that no appeal was permissible on the subject of costs only. So far as the orders were concerned. Section 28(2) provided that orders made by court in any proceedings under the Act under Section 25 or Section 26 and if they were not interim orders, were appeable. Even in respect of such orders, no appeal was permissible on the subject of costs only. It is therefore apparent that there is no conflict between the two decisions and the decision reported in Mrs. Sudha alias Sri Devi's case was applicable on the facts and in the circumstances of the case. The revision petition was therefore maintainable. No appeal was competent against the order made by the Civil Judge.

5. Coming to the merits of the case, the learned Civil Judge directed the payment of Rs. 275 per month on the basis that the respondent's salary was Rs. 1,500 and making some deductions for payment of compulsory insurance premia, the net income has to be taken at Rs. 1,400 and award of ⅕th of that amount would be reasonable. The order was made on 4th September 1978 and the direction was that the amount should be paid from the date of application i.e, 30th May 1977.

6. Smt. Pramila, learned counsel appearing for the petitioner, urged that the interim payments is inadequate and the court below was in error in holding that an interim maintenance could not be granted in regard to the minor child in an application under section 24 of the Hindu Marriage Act, 1955. She relied upon the decision of this Court in the case of Thinunappa v. Nagaveni(3). Sri Shama Rao, learned counsel for the respondent, however, supported the view taken by the court below that in such an application, a claim for maintenance on behalf of the minor child would not be tenable and relied upon a decision of this court reported in Chandrakant v. Sharadabai(4). In Thimmappa's case, the learned Single Judge noticed a decision of the Andhra Pradesh High Court and agreed with the principles enunciated therein that in an application filed under section 24 of the Hindu Marriage Act, maintenance could be determined in the light of Section 26 also which empowers the court to make orders for interim maintenance in regard to the minor children. Though Section 24 in terms refers only to the wife or husband making an application, the court has got power under section 26 to make interim order in respect of maintenance of minor children also. Venkataswami, J., observed in Thimmappa's thus:—

It seems to me that when a wife claims maintenance and she has some children of her own to support and maintain, any interim maintenance that may be awarded to the wife would be meaningless if the same was not intended to provide for the maintenance of the children also. * *”

We are in entire agreement with this observation. The decision in Chandrakant's case, makes no reference to the provision of section 26, as also to the earlier decision. In our opinion, where an application is filed under section 24 and there is an averment of existence of minor child, the court having regard to the provisions of section 26 can make an order awarding maintenance pendente lite in respect of minor child as well as the applicant. We accept the view expressed in Thimmappa's case.

7. It appears that the petitioner is staying with her parents and her father is a retired Divisional Forest Officer. It does not appear that she has to incur expenditure for purposes of residence and we do not consider that the amount directed to be paid is in any way inadequate to meet the requirements of the petitioner. Even taking into account that she has got a minor child, the amount awarded was reasonable considering the salary the respondent is entitled to get. It is also seen that the respondent paid a lump sum payment of Rs. 4,000 on 16th October 1978, Rs. 650 on 23rd August 1978 and Rs. 2,200 on or about 8th June, 1979. Again a lump sum payment was made during February as submitted by the learned counsel for the respondent. Considering the entire circumstances, we hold that there is no ground made out to interfere with the order of the court below or to modify it in any manner.

8. The revision petition is accordingly dismissed. Parties to bear their own costs.