there is no such precedent. sec 24 is considered interloculatory
see following
orissa high court
Equivalent citations: AIR 2002 Ori 22, II (2002) DMC 542
Sri Sambit Parija vs Smt. Surita Parija on 2/7/2001
JUDGMENT
Pradipta Ray
1. The wife-opposite party has filed O.S. No. 630/2000 in the court of the Civil Judge, Senior Division, Bhubaneswar against the present petitioner and his patent for annulment of marriage and other reliefs like permanent alimony, damages and return of alleged dowry articles. The ground for annulment is alleged impotency of the husband. The wife has alleged that on the fourth day of their marriage she discovered that her husband is impotent and incapable of consummating the marriage.
2. In the said suit the wife-opp. party No. 1 filed an application under section 24 of the Hindu Marriage Act (hereinafter referred to as 'the Act') for alimony pendente lite and litigation expenses against the husband and his parents. In her application the wife stated that the husband is an Accounts Officer in the office of Director. Employees State Insurance. Bhubaneswar and is drawing a monthly salary of about Rs. 10,000/-. She has further stated that both the parents of husband are doctors and each of them is earning about Rs. 15,000/- per month. Her father-in-law is also getting pension of about Rs. 12,000/-per month. She has claimed Rs. 6,000/- as monthly maintenance and Rs. 15,000/- as litigation expenses. The present petitioner and his parents have filed joint written objection contending that the prayer against the parents is not maintainable and that the take-home salary of the husband is only Rs. 4950/- after all deductions.
3. During hearing of the said application under section 24 of the Act the wife-opp. party No. 1 relied upon the salary certificate of the husband for the month of January, 2001 which showed his gross salary as Rs. 9246/- and net income as Rs.6599/-after deduction. On the basis of the said salary certificate the trial court by its order dated February 8, 2001 granted an interim maintenance at the rate of RS. 2000/- per month and Rs. 10,000/-as litigation expenses. The Trial Court upheld the objection that under section 24 of the Act no claim can be made against the parents of the husband. Being aggrieved by the aforesaid order the husband has filed this application under section 115 of the Code of Civil Procedure before this Court.
4. Mr. B. Pal, learned Advocate appearing for the petitioner has contended that an application u/s. 24 of the Act can be disposed of on the basis of affidavits. According to him, an application for interim maintenance is to be disposed of as an original proceeding after allowing the parties to adduce oral and documentary evidence. Mr. Pal has placed reliance on a judgment of this Court in Ganga Devi v. Krushna Prasad Sharma reprrted in 1964 I.L R. Cuttack 958 : XXI (1965) C.L.T. 294. Mr. Pal has also submitted that the amount of maintenance as granted by the Trial Court is excessive.
5. Mr. B. H. Mohanty, learned Advocate appearing for the wife-opp. party No. 1 has cited several decisions of different High Courts to show that a proceeding u/s. 24 of the Act is a summary proceeding to grant an interim relief and can be disposed of an affidavits. Mr. Mohanty has further submitted that the context of Ganga Devi's case (supra) was totally different and the said decision does not lay down any law that an application under section 24 of the Act cannot be disposed of on affidavits.
6. In Ganga Devi (supra) the wife filed an application u/s. 24 of the Act for maintenance pendente lite. In her application she averred that she had no independent income to maintain herself and average income of her husband was Rs. 10,000/- per month. The husband disputed the said averment and asserted that his monthly income was below Rs. 100/- and claimed that the wife had independent income to maintain herself. The wife thereafter filed certain interrogatories on the husband who also filed an objection thereto. The District Judge rejected the wife's application for interrogatories on the view that Order 11, Rule 1, C.P.C. applies only to suits and not to any interlocutory proceedings. Against the said order wife-opp party approached the High Court in revision. In the said context Hon'ble Single Judge has held :
"In my view, the mere fact that a particular matter or proceeding is interlocutory is not by itself without more determinative of the question:
Whether it is an original matter in the nature of a suit.
The proceeding under section 24 of the Act is an original matter in the nature of a suit. Though the application was filed in a proceeding for divorce under section 13 of the Act, it has no relevance or direct connection with the question of divorce. Even though ultimately the divorce proceeding may end in favour of the plaintiff, interim maintenance and expenses of the proceeding can be granted if the defendant has no independent means. The ambit and nature of the proceeding for divorce are wholly different from the scope of the application under section 24. The issues and the nature of proof would also be different. It is interlocutory in the sense that it arises out of a divorce proceeding, But it is an original matter in the nature of a suit. Even if section 141, Civil Procedure Code were applicable, the procedure provided in the Code of Civil Procedure would be applicable to a proceeding under section 24 of the Act.'
Thus in Ganga Devi (supra) it has not been held that an application u/s. 24 of the Act cannot be disposed of on affidavits. The ratio of the decision is that the provisions of the Civil Procedure Code are applicable to a proceeding u/s. 24 of the Act.
7. Mr. Pal has referred to the observation that a proceeding u/s. 24 of the Act is in the nature of a suit. The aforesaid observation has been made to find out the applicability of the procedure provided in the Civil Procedure Code. A proceeding in the nature of a suit does not mean that it is a suit and it is always to be disposed of as a suit.
8. Rajasthan High Court in Dharamichan v. Smt. Sobha Devi (A. I. R. 1987 Rajasthan 159) has held :-
"It may also be mentioned that question about the award of alimony pendente lite is not tried as a suit. It is an interim order and is usually inquired into and decided on affidavits. It was observed in Vinoy Kumar v. Smt. Purnima Devi reported in A. I. R. 1973 Raj. 32 by his Lordshsp Kan Singh, J. that in section 24 the word 'appears' is used and not the word "proved". Therefore, application under section 24 has to be disposed of by and large by way of summary proceedings and the court need not try the issue at length. Such a matter should ordinarily be decided on affidavits of the parties concerned."
In Vinoy Kumar v. Smt. Purnima Devi, A. I. R. 1973 Raj. 32 it has been held '.
"Therefore, the idea in enacting this rule seems to be that the matter arising under section 24 of the Act has, by and large, to be decided on the basis of affidavits. This is, however, not to say that no evidence ever should be recorded. In appropriate case where the Court finds that the matter cannot be disposed of properly on the basis of affidavits alone, then it may proceed to record evidence and then decide the matter."
Bombay High Court in Ketahi v. Girish @ Satish reported in I (1990) D.M.C. 382 relied upon the decision in Vinoy Kumar and observed : --
"It is thus clear from the abovesaid principle that it is only in exceptional cases that the Court can call upon the party to adduce evidence in the matter. The normal course adopted in such circumstances is the evidence on affidavit."
9. In Ganga Devi (Supra) an application under section 24 of the Hindu Marriage Act has been described as 'an original matter in the nature of a suit' in the sense that the issues and nature of proof therein are different from those in the main proceeding. The said view requires re-examination. An original proceeding is a proceeding which can be initiated independently of any other suit or proceeding. There cannot be an independent application under section 24 of the Act unless there is a proceeding for any of the main reliefs under the Act. Section 24 of the Act has been enacted for the purpose of giving interim relief during the pendency of main proceeding under the Act.
10. In any event the provisions of Order 19, C P. C. enable the Court to have any particular fact or facts proved by affidavit for sufficient reason in all civil proceedings including suits. In Paragraph 106 of Chapter IV of the General Rules and Circular Orders issued by the Orissa High Court it has been expressly instructed :
"106. The Courts should encourage a larger use of affidavit evidence to prove simple and incontrovertible facts, both in contested and uncontested matters. In contested suits, simple and incontrovertible facts may be proved by affidavit evidence at the first instance, and if seriously disputed later, steps for cross-examination under Order XIX, C. P. Code may be taken."
It is well recognised that an interlocutory application should be decided on affidavits unless the Court finds it necessary to take oral evidence or to have the deponent of the affidavit produced in Court for cross-examination, An application under section 24 of the Act being essentially an interlocutory application can be disposed of on affidavits.
11. The purpose behind section 24 of the Act is to provide immediate necessary financial support to the party in a matrimonial proceeding who has no sufficient means either to maintain himself/herself or to bear the expenses of the suit. If such a proceeding is to be disposed of as a suit after taking evidence under all circumstances the whole purpose will be frustrated. In appropriate case the Court may ask the parties to adduce evidence, but that does not mean that a proceeding u/s. 24 of the Act cannot be decided or disposed of on affidavits.
12. The Court below has found that the net monthly income of the petitioner is Rs. 6599/- and awarded Rs. 2000/- per month as interim maintenance. On the basis of the monthly income as recorded by the trial court, the amount of maintenance does not appear to be excessive. A wife is entitled to get maintenance necessary to live a life com mensurating with the status of the husband. However, grant of Rs. 10,000/- as litigation expenses at the first instance appears to be excessive. According to this Court Rs. 5000/- will be the reasonable amount to be awarded as litigation expenses for the present.
13. For the foregoing reasons the Civil Revision is disposed of by modifying the order relating to litigation expenses only. The husband-petitioner will pay Rs. 5000/- as litigation expenses. The order relating to interim maintenance is affirmed.
14. Revision disposed of .
