The High Court
Case Details
Signature Not Verified Digitally Signed Signed by: ROJALIN NAYAK Designation: Junior Stenographer Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 01-Dec-2023 15:05:36 IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C). NO.36107 OF 2023 Subodha Kumar Pradhan …. Petitioner Mr. S. Udgata, Advocate Elizabeth Sahoo and another …. Opp. Parties -versus- Order No. 01. 1. 2. CORAM:
Decision
JUSTICE K.R. MOHAPATRA ORDER 30.11.2023 This matter is taken up through hybrid mode. Order dated 17th February, 2023 (Annexure-3) passed by learned Judge, Family Court, Angul in IA No.24 of 2019 (arising out of CP No.100 of 2019) is under challenge in this writ petition, whereby refusing grant of pendente lite maintenance under Section 24 of the Hindu Marriage Act, 1955 (for brevity ‘the Act’) to the Opposite Party No.1-Wife, learned Judge, Family Court directed the Petitioner to pay pendente lite maintenance of Rs.8,000/- (Rupees Eight Thousand) per month to the Opposite Party No.2- minor son through Opposite Party No.1 from the date of the application, i.e., from 1st November, 2017. 3. Mr. Udgata, learned counsel for the Petitioner assails the impugned order on the following grounds: i) ii) Firstly, no interim maintenance can be granted in favour of the minor son under Section 24 of the Act. Secondly, the Opposite Party No.1-wife has her personal income as a teacher. iii) Thirdly, no detailed expenses of the minor son has been stated by the Opposite Parties. 4. Hence, the Petition under Section 24 of the Act is not maintainable. Page 1 of 4 Signature Not Verified Digitally Signed Signed by: ROJALIN NAYAK Designation: Junior Stenographer Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 01-Dec-2023 15:05:36 // 2 // 5. In support of his case, he relied upon the case of Akasam Chinna Babu vrs. Akasam Parbati and others, reported in AIR Orissa 163 and Bankim Chandra Roy vrs. Anjali Roy, reported in Air 1972 PAT 80, and submits that no interim maintenance in favour of the minor son-Opposite Party No.2 could have been granted. Learned Judge, Family Court, Angul did not at all take aforesaid legal position into consideration. He, therefore, prays for setting aside the impugned order. 6. Considering the submission made by learned counsel for the Petitioner and on perusal of the impugned order, it appears that an application under Section 24 of the Act was filed by the Opposite Parties claiming pendente lite maintenance. Since the Opposite Party No.1-Wife is serving as a teacher and getting a salary of Rs,13,310/- per month, no maintenance was awarded in her favour. However, taking into consideration that the minor son is entitled to maintenance for his sustenance, learned Judge, Family Court, Angul, entertaining the prayer, directed the Petitioner to pay the maintenance as aforesaid. 7. No doubt, Section 24 of the Act does not entitle a minor child to receive maintenance under the said provision. Section 26 of the Act deals with the same. Hon’ble Supreme Court has made it clear that destitute wife can receive maintenance for her sustenance and on behalf of the minor child under Section 24 of the Act in the case of Jasbir Kaur Sehgal (Smt.) vrs. District Judge, Dehradun and others, reported in (1997) 7 Supreme Court Cases 7, wherein it is held as under: “6. ……..The fact remains that the wife has no source of income and she is also maintaining her eldest unmarried daughter. Page 2 of 4 Signature Not Verified Digitally Signed Signed by: ROJALIN NAYAK Designation: Junior Stenographer Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 01-Dec-2023 15:05:36 // 3 // 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 his wife and one with him. Section 24 of the Act no doubt talks of maintenance of the 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 hold that it is the maintenance of the wife alone and no one else. Since the wife is maintaining the eldest unmarried daughter, her right to claim maintenance would include her own maintenance and that of her daughter. 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.” 8. However, the nomenclature of a petition is not sacrosanct for its consideration. It is the subject matter of dispute and relief claimed in the petition is relevant for consideration to grant the relief. 9. In the instant case, the Opposite Party No.2 is a minor child and has his personal as well as educational expenses and the Petitioner is liable to maintain him. Admittedly, the Petitioner is getting a gross salary of Rs.37,512.49/- per month and his net salary after deduction is Rs.24,929/- per month. Thus, direction to pay maintenance to the minor son does not appear to be unreasonable or illegal. The case laws cited by learned counsel for the Petitioner are of no assistance as law has been settled that a minor son is also entitled to maintenance under the provisions of the Act. It also appears that while adjudicating the matter, learned Judge, Family Court, Angul has relied upon the case law in Uma Priyadarshini S. vrs. Suchith K. Nair, reported in 2022 SAR (CIV) 363 and passed the impugned order. Page 3 of 4 Signature Not Verified Digitally Signed Signed by: ROJALIN NAYAK Designation: Junior Stenographer Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 01-Dec-2023 15:05:36 // 4 // 10. In view of the above, I find no infirmity in the impugned order. 11. Accordingly, the writ petition, being devoid of any merit, stands dismissed. Issue urgent certified copy of this order be granted on proper application. (K.R. Mohapatra) Judge Rojalin Page 4 of 4