Kaushalya Singha vs A.K. Singha And Anr.
1983 Latest Caselaw 269 Del

JUDGMENT

S.B. Wad, J.

(1) -THE only question raised in this appeal is whether the pendente lite maintenance should be granted from the date of the application for that purpose or from the date of the order of the Trial Court. The appellant contends that she is entitled to alimony from the date of the presentation of the application.

(2) The appellant-wife filed a petition for judicial separation against the respondent under Section 22, read with Section 23 of the Indian Divorce Act, 1869. On 27th/30th April, 1981 she moved an application for pendente lite maintenance. The learned Trial Judge found that the husband's income was at least Rs. 1572.00 per month and the wife had no income of her own. The learned Judge, therefore, allowed the maintenance @ Rs. 314.00 from the date of the order. The order was passed on 29-5-1982.

(3) The application for pendente lite maintenance was made under Section 36 of the Indian Divorce Act. The said section reads as under : "36.Alimony pendente lite.-In any suit under this Act, whether it be instituted by a husband or a wife, and whether or not she has obtained an order of protection, the wife may present a petition fo alimony pending the suit. Such petition shall be served on the husband; and the Court, on being satisfied of the truth of the statements therein contained, may make such order on the husband for payment to the wife of alimony pending the suit as it may deem just : Provided that alimony pending the suit shall in no case exceed one-fifth of the husband's average nett income for the three years next preceding the date of the order, and shall continue, in case of a decree for dissolution of marriage or of mollify of marriage, until the decree is made absolute or is confirmed, as the case may be."

(4) At the time of the arguments the counsel for the appellant referred to Section 24 of the Hindu Marriage Act regarding pendente lite maintenance in support of her submission that the maintenance should be granted from the date of the application. I , not find much support in Section 24 of the Hindu Marriage Act. Firstly because these are provisions of two different enactments meant for two different sets of communities historically treated separate. There is a gap of about 100 years in the enactment of the said two legislations. Apart from this Section 24 of the Hindu Marriage Act also does not provide specifically the date from which pendente lite maintenance is payable. We will, therefore, have to interpret Section 36 of the Indian Divorce Act, 1869 without much assistance from other enactments.

(5) Pursuant to Section 36 a wife can present a petition for alimony pending the suit, and the court can make an order for payment of alimony pending the suit as it may deem just. By its very nature the said alimony is for the period during which the substantive petition for judicial separation etc. is pending under the Act. A suit/petition is said to pend in a court from a day it is instituted/presented in the court. Therefore, it is permissible for the court to grant pendente lite alimony from the date of the application. In fact where the court is satisfied that the wife has no source of her own to support herself pendente lite maintenance must be granted from the date of application. The order by the court may come immediately after the presentation of the application or may be delayed. Considering the backlog in the courts it is likely to b3 inordinately delayed in spite of the fact that normally the matrimonial matters are given a priority for disposal. Thus the time within which the court would pass an order would be uncertain. It is much better for the sake of convenience also that/ maintenance is paid or is made payable from a more certain and specific date, namely, the presentation of an application for maintenance. Section 36, however, leaves full discretion to the court to decide the question of alimony and to pass order as deemed just. Therefore, where the court finds that the wife has gone provision to maintain herself or the circumstances are such that ordering maintenance from the date of the order would not be unjust to the wife, the court may deviate from the normal rule and direct the payment of pendente lite alimony from the date of order. Indian Divorce Act was passed in 1869. That was more than hundred years back. The concept of equality in matrimonial life, and right of wives to live according to the social and economic status of husband were not developed when the said Act was passed in 1869. For the reasons best known to the community and the Government the Act is not being amended so as to bring it in line with the development of similar legislations in India and abroad. A wife is entitled to only one-fifth share of the husband's income by way of pendente lite alimony. There is no reason why she should be deprived of such a small amount for a period between presentation of the application to the date on which the order is made by the court. I am of the considered opinion that as a rule pendente lite alimony should be paid from the date of the application and only in an exceptional circumstances it should be made payable from the date of the order. The appellant is entitled to maintenance at the rate awarded by the Trial Court from 30th April, 1981. The appeal is allowed with costs.