COMMENTS

S.24 of the Act is not controlled by S.23: Gopal v. Dhapubai (1986) 2 Hindu L.R. 253 (Madh.Pra.).

 

[23-A. Relief for Respondent in divorce and other proceedings:- In any proceeding for divorce or judicial separation or resolution of conjugal rights, the respondent may not only oppose the relief sought on the ground of petitioner’s adultery, cruelty or desertion, but also make a counter-claim for any relief under this Act on that ground; and if the petitioner’s adultery, cruelty or desertion is proved, the Court may give to the respondent any relief under this Act to which he or she would have been entitled if he or she had presented a petition seeking such relief on that ground.]

 

24. Maintenance pendent elite 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.

            [Provide that the application for the payment of the expenses of the proceeding and such monthly sum during the proceeding, shall, as far as possible, be disposed of within sixty days from the date of service of notice on the wife or the husband, as the case may be.]

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48. Added by Act 68 of 1976, S.16 (w.e.f.27-5-1976).

49. Inserted by Act 68 of 1976, S.16 (w.e.f.27-5-1976).

50. Inserted by Act 68 of 1976, S.17 (w.e.f.27-5-1976).

51. Inserted by Act 49 of 2001, S.8 (w.e.f.24-9-2001).

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Objects and Reasons:- Sections 24 and 26 of the Hindu Marriage Act, 1955 do not contain any time-limit for disposal of applications for alimony pendente lite or the maintenance and education of minor children. More than 670 cases or understood to be pending in various High Courts under section 24 of the Hindu Marriage Act, 1955. As a part of the judicial reforms process, it is proposed to make necessary amendments in the enactments, i.e., sections 36 and 41 of the Indian Divorce Act, 1869, sections 39 and 49 of the Parsi Marriage and Divorce Act, 1936, sections 36 and 38 of the Special Marriage Act, 1954 and sections 24 and 26 of the Hindu Marriage Act, 1955 with a view to making provisions that an applications for alimony pendent elite or the maintenance and education of minor children shall be disposed of within sixty days from the date of service of notice on the respondent.

 

COMMENTS

 

            Relevant consideration for grant of maintenance pendent elite is that the spouse seeking maintenance should not have independent income sufficient for her/his support- Once Court reaches its conclusion in that regard, it has to grant maintenance and only discretion left with the Court is with regard to quantum of maintenance: Amarjit Kaur v. Harbhajan Singh (2003) 10 S.C.C. 228

            S.24 is enacted to provide relief by way of maintenance and litigation expenses to a spouse unable to maintain itself during the pendency of the proceedings; it is a benevolent provision: Lata v. Dhanpal (1995) 2 D.M.C. 440 (Madh. Pra).

            Cases where the parties disclose their actual income are extremely rare. Experience, therefore, dictates that where a decision has to be taken pertaining to the claim for maintenance, the quantum to be granted, the safer and surer method to be employed for coming to a realistic conclusion is to look at the status of the parties, since whilst incomes can be concealed, the status is palpably evident to all concerned. If any opulent lifestyle is enjoyed by waring spouses, he should not be heard to complaint or plead that he has only a meager income: Radhika v. Vincent Rangta A.I.R.2004 Del 323.

            The maintenance does not mean only the bare maintenance of food and clothing, but it does include the basic additional expenses for education of the child if the status of she father or the family is of such type: Remani Menon v. K.G. Omnakuttan A.I.R.2004 Guj.23.

            The fact that there is a strong possibility of the marriage being declared as a nullity is no ground for declining even the basic right to claim interim alimony and expenses of the litigation: Sushila Viresh Chhadva v. Viresh Nagshi Chandra (1996) 1 Mah.L.J.288.

The doctrine of alimony in its strict sense means the allowance due to wife from husband; when the wife has no separate means sufficient for her defence and subsistence, she can claim for maintenance pendent elite. No distinction can be made between a case filed under S.12 and another filed under S.13 of the Hindu Marriage Act: Sandeep Kumar v. State of Jharkhand A.I.R. 2004 Jhar.22.

            Question of maintenance pendent elite and litigation expenses arises with the filing of an application for matrimonial reliefs under the Hindu Marriage Act. It ends as the proceedings terminate. It has no separate existence and cannot stand by itself. No application for maintenance pendent elite or litigation expenses can exist independently unless lis is there: Ramactar Verma v. Chintamani A.I.R. 2004 Madh. Pra.137.

 

25. Permanent alimony and maintenance:- (1) Any Court exercising jurisdiction under this Act may, at the time of passing any decree or at any time subsequent thereto, on 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 he 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

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 52. The words “while the applicant remains unmarried” omitted by Act 68 of 1976, S.18 (w.e.f.27-5-1976).

53. Substituted by Act 68 of 1976, S.18, for “and the conduct of the parties” (w.e.f.27-5-1976).  

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Court to be just, and any such payment may be secured, if necessary, by a charge on the immovable property of the respondent.

(2) If the Court is satisfied that there is a change in the circumstances of either party at any time after it has made an order under sub-section (1), it may, at the instance of either party, vary, modify or rescind any such order in such manner as the Court may deem just.

(3) If the Court is satisfied that the party in whose favour an order has been made under this section has remarried or, if such party is the wife, that she has not remained chaste, or, if such party is the husband, that he has had sexual intercourse with any woman outside wedlock, [it may at the instance of the other party vary, modify or rescind any such order in such manner as the Court may deem just.]

 

COMMENTS

 

The relief of permanent alimony cannot be given where the main petition for relief under the Act such as divorce, judicial separation, etc., is dismissed or withdrawn: Badri Prasad v. Urmila Mahobiya A.I.R. 2001 Madh.Prad. 106.

S.24 and S.25 are enacted with the object of removing the handicap of a wife or husband with no independent income sufficient for living or meeting litigation expenses; such a relief can be granted to the husband as well who may also be deprived of the same on proof of his having sexual intercourse outside the wedlock: Lalit Mohan v. Tripta Devi A.I.R.1990 J&K.7.

“Illegitimate wife” [or faithful mistress”] cannot be included in the word “wife” as contained in S.25 of the Hindu Marriage Act: Bhausaheb v. Leelabai A.I.R. 2004 Bom. 283 (F.B.)

Under S.25 of the Hindu Marriage Act, the Court is entitled to pass an order of alimony even when the original petition is dismissed. If the Court is competent to pass an order of alimony even at the time of dismissal of the petition, there is no reason why Court cannot grant an interim alimony during the pendency of the petition on the ground that the petitioner is not likely to succeed in the main petition: Mangilal S.Mundada v. Mangala M.Mundada A.I.R. 2004 Bom.266.

When the words of S.25 of the Hindu Marriage Act, 1955 are very much clear on the point that such application can be filed after passing of the decree, therefore, mere fact that the appeal is pending in higher Court would not effect the fate of the application, which was filed after passing of the decree: Surendra Kumar Bhansali v. Judge, Family Court A.I.R. 2004 Rsj.257.

The Court may grant permanent maintenance to a party while disposing of the main petition even if no proper application has been moved: Chandrika v. Vijayakumar (1996-1) 117 Mad. L.W. 695 (D.B.).

 

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 been 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 respect to the custody, maintenance and education of such children as might have been made by such decree or interim orders in case the proceeding for obtaining such decree were still pending, and the Court may also from time to time revoke, suspend or vary any such orders and provisions previously made.

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54. Substituted by Act 68 of 1976, s.18, for “it shall rescind the order: (w.e.f.27-5-1976).

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            [Provided that the application with respect to the maintenance and education of the minor children, pending the proceeding for obtaining such decree, shall, as far as possible, be disposed of within sixty days from the date of service of notice on the respondent.]

 

COMMENTS

 

            S.26 enables the Court from time to time, to pass such interim order and make such provisions in a decree as it may deem just and proper with respect to the custody, maintenance and education of minor children. It enables the Court to do so, not only during the time the proceedings are pending but also after a decree has been passed in any proceedings under the Hindu Marriage Act: Vivek Yashavant Bhagwat v. Rekhs Vivek Bhagwat (1986) 1 Hindu L.R.46 (Madh.Pra.).

 

27. Disposal of property:- In any proceeding under this Act, the Court may make such provisions in the decree as it deems just and proper with respect to any property presented, at or about the time of marriage, which may belong jointly to both the husband and the wife.

 

COMMENTS

 

S.27 of the Act dealing with “disposal of property” is unambiguous and, therefore, marginal note of said section may not be used as an aid to its interpretation: Shakuntala v. Mahesh Atmaram Badlani A.I.R. 1989 Bom.353.

            S.27 of the Hindu Marriage Act does not confine or restrict the jurisdiction of matrimonial Courts to deal only with the joint property of the parties, which is presented at or about the time of marriage but also permits disposal of exclusive property of the parties provided they were presented at or about the time of marriage: Hemant Kumar Agrahari v. Lakshmi Devi A.I.R.2004 All.126 (D.B.).

            No order under S.27 can be passed with the respect to the property which exclusively belongs to the wife: Inderjit Singh v. Manjit Kaur (1987) 2 Hindu L.R.496(1988) 1 D.M.C. 129 (P.&H.).

 

28. Appeals from decrees and orders:-  (1) All decrees made by the Court in any proceeding under this Act shall, subject to the provisions of sub-section (3), be appealable as decrees of the Court made in the exercise of its original civil jurisdiction, and every such appeal shall lie to the Court to which appeals ordinarily lie from the decisions of the Court given in the exercise of its original civil jurisdiction.

(2) Orders made by the Court in any proceeding under this Act under section 25 or section 26 shall, subject to the provisions of sub-section (3), be appealable if they are not interim orders, and every such appeal shall lie to the Court to which appeals ordinarily lie from the decisions of the Court given in exercise of its original civil jurisdiction.

(3) There shall be no appeal under this section on the subject of costs only.

(4) Every appeal under this section shall be preferred within a [period of ninety days] from the date of the decree or order.

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55. Inserted by Act 49 of 2001, S.9 (w.e.f.24-9-2001).

56. Substituted by Act 68 of 1976, S.19, for S.28 (w.e.f.27-5-1976).

57. Substituted by Act 50 of 2003, S.5, for “period of thirty days” (w.e.f.23-12-2003). S.6 of the Marriage Laws (Amendment) Act, 2003 provides as under:- “6. Transitory provisions.- All decrees and orders made by the Court in any proceedings under the Special Marriage Act or the Hindu Marriage Act shall be governed under the provisions contained in section 3 or section 5, as the case may be, as if this Act came into operation at the time of the institution of the suit.

            Provided that nothing in this section shall apply to a decree or order in which the time for appealing has expired under the Special Marriage Act or the Hindu Marriage Act at the commencement of this Act.”

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Condonation of delay in filing appeal, is permissible: Ratan Malla v. Sefali Malla A.I.R. 2004 Gau. 36 (D.B.).

 

28-A. Enforcement of decrees and orders:- 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 the exercise of its original civil jurisdiction for the time being are enforced.]

 

CHAPTER VI

SAVINGS AND REPEALS

 

29. Savings:- (1) A marriage solemnized between Hindus before the commencement of this Act, which is otherwise valid, shall not be deemed to be invalid or even to have been invalid by reason only of the fact that the parties thereto belonged to the same gotra or pravara or belonged to different religions, castes or sub-divisions of the same caste.

(2) Nothing contained in this Act shall be deemed to affect any right recognized by custom or conferred by any special enactment to obtain the dissolution of a Hindu marriage, whether solemnized before or after the commencement of this Act.

(3) Nothing contained in this Act shall affect any proceeding under any law for the time being in force for declaring any marriage to be null and void or for annulling or dissolving any marriage or for judicial separation pending at the commencement of this Act, and any such proceeding may be continued and determined as if this Act had not been passed.

(4) Nothing contained in this Act shall be deemed to affect the provisions contained in the Special Marriage act, 1954 (43 of 1954) with respect to marriage between Hindus solemnized under that Act, whether before or after the commencement of this Act.

 

Objects and Reasons:- This clause expressly saves, inter alia, customs and special enactments like the Madras Marumakkattayam Act (12 of 1933) which provides for termination of Hindu marriage in any other manner. It is also provides that marriages solemnized under the Special Marriage Act, 1872, are not effected by any thing contained in this Bill. (Now see Special Marriage Act, 1954).

 

30. Repeals:- {Repealed by the Repealing and Amending Act, 1960 (58 of 1960), section 2 and Schedule (w.e.f. 26-12-1960).}