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Kalpana Das & Anr. v. Sarat Kumar Das.
Factual and Procedural Background
The petitioners filed Misc. Case No. 104 of 2006 under Section 24 of the Hindu Marriage Act, 1955, alongside a petition under Section 9 of the Act for restitution of conjugal rights in C.P No. 310 of 2006. The respondent appeared, filed a written statement, and contested the application under Section 24. The Family Court, Cuttack, awarded interim maintenance to the petitioners, which was subsequently challenged by the respondent on the grounds that maintenance for the child was not permissible under Section 24 of the Act.
Legal Issues Presented
- Whether interim maintenance can be granted to a minor child under Section 24 of the Hindu Marriage Act, 1955, or if such maintenance falls exclusively under Section 26 of the Act.
- From which date interim maintenance should be payable—whether from the date of application, the date of appearance of the respondent, or the date of the order.
- Whether the quantum of maintenance fixed by the Family Court requires enhancement based on the petitioners’ claim.
- Whether proceedings under different sections of the Hindu Marriage Act can be heard and disposed of analogously with a single set of evidence.
Arguments of the Parties
Petitioners' Arguments
- Interim maintenance was sought under Section 24 of the Act for both the wife and the minor child.
- Reliance on the Supreme Court decision in Jasbir Kaur Sehgal v. District Judge to argue that maintenance of the wife includes maintenance of her unmarried daughters living with her.
- Claimed entitlement to maintenance from the date of application (8-5-2006) rather than the date of the Family Court’s order.
- Requested enhancement of maintenance to one-fifth of the husband’s net income for the wife and an additional one-fifth for the daughter, totaling two-fifths.
- Consent to have the pending proceedings under Section 13 heard and disposed of analogously with the current case.
Respondent's Arguments
- Contended that maintenance for the child is not covered under Section 24 of the Act, relying on the Orissa High Court decision in Purusottam Das Agarwala v. Smt. Puspa Devi, which held that child maintenance is outside the scope of Section 24.
- Did not seek any adjournment in the Family Court proceedings under Section 24.
- Proposed that the pending Section 13 application be heard together with the current proceedings.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Purusottam Das Agarwala v. Smt. Puspa Devi, AIR 1982 Orissa 270 | Maintenance to a child is not within the purview of Section 24 of the Hindu Marriage Act. | The Court acknowledged this precedent but distinguished it by emphasizing the role of Section 26 for child maintenance and held that refusal of maintenance solely on the basis of Section 24 was not justified. |
| Jasbir Kaur Sehgal v. District Judge, AIR 1997 SC 3397 | Maintenance of wife under Section 24 includes maintenance of her unmarried daughters living with her. | The Court relied on this to hold that maintenance pendente lite for the wife may include maintenance of her unmarried daughters and cannot be restricted to the wife alone. |
| Gouri Das v. Pradyumna Kumar Das, 62 (1986) CLT 218 | Determination of the date from which interim maintenance is payable under Section 24. | The Court applied the principle that the date for payment of maintenance depends on facts and circumstances, including the date of service of summons or application, and modified the order to make maintenance payable from the respondent’s appearance date. |
| Narendra Kumar Mehta v. Smt. Suraj Mehta | Consideration of facts and conduct of parties in deciding the date maintenance is payable. | The Court referenced this to support its flexible approach to determining the maintenance start date. |
| S. Radhakumari v. K.M.K Nair | Ordinarily, when the applicant is respondent, maintenance is payable from the date of service of summons. | Referenced to explain the discretion in deciding maintenance payment dates. |
| Smt. Laxmi Oram @ Toppo v. Birsa Oram, 94 (2002) CLT 476; AIR 2003 Orissa 16 | Quantum of maintenance and its enhancement under the Hindu Marriage Act. | The Court declined to enhance maintenance, finding no illegality in the Family Court’s quantum and noting that it was exercising jurisdiction under Article 227. |
Court's Reasoning and Analysis
The Court analyzed the interplay between Sections 24 and 26 of the Hindu Marriage Act, concluding that while Section 24 primarily addresses maintenance of the wife during proceedings, it cannot be read in isolation to exclude maintenance of minor children. Section 26 explicitly empowers the Court to pass interim orders regarding custody, maintenance, and education of minor children in such proceedings. Hence, the substance of the petition for maintenance is paramount over the form or specific section cited.
Regarding the date from which maintenance is payable, the Court observed that Section 24 does not prescribe a fixed rule. It considered relevant precedents emphasizing discretion based on facts and conduct of parties. The Court found it reasonable to make maintenance payable from the date of the respondent’s appearance (December 2006), rather than the date of the order, as the respondent did not seek adjournments and the petitioners appeared destitute.
On the quantum of maintenance, the Court found no irregularity in the Family Court’s determination and declined to enhance it, noting that the writ jurisdiction under Article 227 requires deference to the trial court’s discretion absent manifest illegality.
Finally, the Court accepted the parties’ agreement to tag and hear the pending Section 13 proceeding analogously with the present case, to promote judicial efficiency.
Holding and Implications
The writ petition is disposed of by modifying the impugned order to make the interim maintenance payable from December 2006, with arrears payable in six monthly installments.
This decision directly affects the parties by ensuring maintenance to the petitioners from the respondent’s appearance date rather than the order date, and it affirms the Court’s discretion in determining maintenance quantum and timing. No new binding precedent was established; the Court applied existing principles and case law to the facts.
Heard argument and judgment is as follows.
2. Petitioners are the applicants in Misc. Case No. 104 of 2006 under Section 24 of the Hindu Marriage Act, 1955 (in short ‘the Act’). That application was filed in C.P No. 310 of 2006. Petitioner No. 1 filed that C.P for restitution of conjugal rights. Together with petition under Section 9 of the Act she filed the application under Section 24 of the Act. The respondent-opposite party entered appearance in that proceeding on 8-12-2006 filed his written statement and also contested the application under Section 24 of the Act.
3. On consideration of submission of both the parties, learned Judge, Family Court, Cuttack awarded interim maintenance @ Rs. 800/- per month to the petitioner No. 1 and @ Rs. 400/- per month to the petitioner No. 2 on the ground that the relationship between the parties are admitted and the husband has a net salary of Rs. 7655/-. Learned counsel for the opposite party-husband states that Family Court, Cuttack did not consider the objection of the opposite party on the issue that the child is not entitled to maintenance under Section 24 of the Act in view of the decision of this Court in the case of Purusottam Das Agarwala… v. Smt. Puspa Devi…Opposite Party., AIR 1982 Orissa 270 wherein it has been held that order of maintenance to a child is not within the purview of Section 24 of the Act and accordingly the order for such maintenance was refused.
4. In course of submissions Dr. Das, learned counsel for the petitioner relies on the case of Jasbir Kaur Sehgal v. District Judge, Deharadun reported in AIR 1997 SC 3397 in which Hon'ble Apex Court has propounded that
“Under the Hindu Adoptions and Maintenance Act, 1956 it is the obligation of a person to maintain his unmarried daughter if she is unable to maintain herself. In this case since the wife has no income of her own, it is the obligation of the husband to maintain her and her two unmarried daughters one of whom is living with wife and one with him. Section 24 of the Act no doubt talks of maintenance of wife during the pendency of the proceedings but this Section, in our view, cannot be read in isolation and cannot be given restricted meaning to whole that it is the maintenance of the wife alone and no one else. Since, wife is maintaining the eldest unmarried daughter, her right to claim maintenance would include her own maintenance and that of her daughters. This fact has to be kept in view while fixing the maintenance pendente lite for the wife. We are aware of the provisions of Section 26 of the Act providing for custody of minor children, their maintenance and education but that section operates in its own field.”
Section 26 of the Act provides that
“26, Custody of children — In any proceeding under this Act, the Court may, from time to time, pass such interim orders and make such provisions in the decree as it may deem just and proper with respect to the custody, maintenance and education of minor children, consistently with their wishes, wherever possible, and may alter the decree, upon application by petition for the purpose, make from time to time all such orders and provisions with decree, shall, as far as possible, be disposed of within sixty days from the date of service of notice on the respondent.”
5. It is clearly readable from Section 26 that interim orders can be passed by the Court relating to maintenance of minor children in a proceeding for Restitution of Conjugal Right, Judicial Separation or Divorce. It is not in dispute that petitioners jointly applied for interim maintenance. Though in the application it was mentioned that interim maintenance is prayed for under Section 24 of the Act, but that lacuna alone is not sufficient to refuse maintenance to the child if she is entitled to maintenance under Section 26 of the Act. In such a case, it is the substance and not the form which is very much material while considering the prayer for interim maintenance. Therefore we find no illegality in the impugned order relating to grant of interim maintenance to the minor child.
6. Petitioners' contention is for payment of maintenance from the date of application i.e 8-5-2006 whereas the Family Court has awarded that maintenance with effect from the date of order i.e 23-6-2008. In that respect, pursuing the relief of interim maintenance from the date of application learned counsel for the petitioners relies on the case of Gouri Das… v. Pradyumna Kumar Das…Opp. Party. reported in 62 (1986) CLT 218. Learned single Judge held that
“The next question is from what point of time is the maintenance payable. Section 24 does not contain any limiting provision. No fetters have been imposed on the discretion of the Court. What should be the date from which maintenance is payable where the applicant is the petitioner in, the substantive petition under the Hindu Marriage Act and when he or she is the respondent? As regards the first category, in some decision it has been held that the date from which the maintenance is payable is the date on which summons is served on the respondent in the main proceedings. The contrary view maintain that the date should be the date of the application for maintenance for, otherwise, the clever respondent with a view to thwarting the claim for interim maintenance might keep himself out of the way of service of summons. In my view, ordinarily it should be the date of service of summons. No hard and fast rule can be laid down. The Court has to decide the date from which maintenance is payable having regard to the facts and circumstances of each case and the conduct of the parties — see Narendra Kumar Mehta… v. Smt. Suraj Mehta….. Also in this connection see N. Subramanyam v. Mrs. M.G Saraswathi: Sarita Mehta v. Arvinda K. Mehta. Where the applicant is respondent, ordinarily it should be the date of service of summons — see S. Radhakumari… v. K.M.K Nair….. Where, however there has been inordinate delay in making the application, which could have been made earlier, laches on the part of the applicant might be taken into account as circumstance disentitling her maintenance from a date prior to the date of application.”
7. It is apparent from the above quoted ratio that grant of interim maintenance under Section 24 of the Act whether from the date of application, date of appearance of the defendant or date of order, that has to be considered appropriately under the given facts and circumstances and not by any fixed or rigid rule, having not been so provided in Section 24 of the Act.
8. In this case, petitioners claim their destitute condition and also claim for interim maintenance during the proceeding under Section 9 of the Hindu Marriage Act and Respondent entered appearance in the proceeding on 8-12-2006. The lower Court record reveals that respondent did not seek for any adjournment for hearing and disposal of the proceeding under Section 24 of the Hindu Marriage Act. Learned Judge, Family Court has not assigned any reason as to why he passed the order of interim maintenance w.e.f the date of order. When admittedly the parties are living separately and prima facie it appears that the petitioners have no independent source of income, therefore, in our view order should have been passed for payment of interim maintenance from the date of appearance of the opposite party-husband. Thus we modify the order accordingly to make the interim maintenance payable from December, 2006. Arrear maintenance be paid by the opposite party in six monthly installments while making payment of interim maintenance as per the impugned order.
9. Petitioners' claim for enhancement of maintenance of the wife @ 1/5th of the total net income of the husband and further 1/5th to the daughter i.e, 2/5th of the net income determined by the Court below. In that respect, petitioners rely on the case of Smt. Laxmi Oram @ Toppo… v. Birsa Oram…. reported in 94 (2002) CLT 476 : (AIR 2003 Orissa 16). Keeping in view the facts and circumstances of the present case and finding that the decisions in that case does not have a force of a ratio and binding precedent, we don't disturb the quantum fixed by the learned trial Court because we are in seisin of the matter in a writ petition under Article 227 of the Constitution and we don't find illegality having been committed by the Family Court in determining the quantum mentioned in the impugned order. Under such circumstances, contention for enhancement is rejected.
10. No other point is raised and no other argument is advanced by the parties.
11. For the reasons indicated above the writ petition is disposed of by modifying the impugned order and making the interim maintenance payable w.e.f December, 2006 and making the aforesaid direction as the mode of payment of the arrears.
12. L.C.R be immediately returned to the learned Court below.
13. At this stage, Mr. Nayak, learned counsel for the opposite party states that husband's application under Section 13 of the Act vide C.P No. 260 of 2008 is also pending adjudication before the Family Court, Cuttack. He states that both the proceedings be heard and disposed of analogously by accepting one set of evidence. The wife-petitioner has no objection to that submission. Hence, we direct that both the proceedings be tagged, heard and disposed of analogously and without granting liberal adjournment.
Order accordingly.
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