Sathya Shanmugavlu 22 October 2024

Incidental vs supplemental proceedings on maintenance & it's revival status

Dear Experts,

My wife filed divorce & interim maintenance through section 24 HMA r/w 151 CPC as interlocutory case and the same got ordered numbered IA368/2019 in HMOP (divorce)

The order also States this is filed as a MISC Application.

The main HMOP was dismissed for default in 2021 and later revived on 2022, with no explicit mention of restoring this IA.

The HC questioned this as well.

My question, As MISC Application are Supplemental in nature (running parallel) Vs. Interim Orders that are Incidental in nature,

WILL THIS IA368 INTERIM MAINTENANCE ORDER FILED AS MISC APPLICATION REVIVE ON THE REVIVAL OF THE MAIN PETITION.

My lawyer says, it becomes infructous, but opposite Counsel not agreeing to it. This is very important for me as there were arrears that would also become infructous.

Any expert insights would be greatly appreciated.

Reply Follow

6 Replies

Dr. J C Vashista (Advocate ) 22 October 2024

Facts posted are not clear as to whether the case is pending before Trial Court or High Court.

Whether the application u/s 24 HMA is pending before Family Court or filed in High Court ?

The case is stated to have been restored / revived to its original status, implies that the main case with pending application(s) are also restored / revived.

Sathya Shanmugavlu 22 October 2024

The case is before the Family Court and filed in the family court.

The interim maintenance ordered in family court as misc case.

The main HMOP got dismissed & later restored in the family court.

This order is challenged before HC and the HC Noted this observation.

"Supplemental proceedings that does not aid in the decision of main case does not get revived automatically on the restoration of main case, unless a express order to revive it is made"

As the maintenance order filed as MISC case (invoking CPC 151), this case is a Supplemental case and nit Incidental Case.

T. Kalaiselvan, Advocate (Advocate) 22 October 2024

an interim maintenance application is made during the pendency of a divorce petition, not after the main marriage case is restored

Interim maintenance is paid from the date the petition is filed until the case is dismissed or a decree is passed.

The amount paid as interim maintenance is not recoverable after the case is concluded. It's also not adjusted against the amount paid as permanent alimony.