Prejudice

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Understanding section 24 an 25 of Hindu Marriage Act, 1955.

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Understanding section 24 an 25 of Hindu Marriage Act, 1955.

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This may be by far the most legal prejudice we have posted. But it deliberates upon important aspect of law relating to maintenance of spouse and child during the pendency of trial. We hope you enjoy reading this and god forbid, but if need ever be, you could use this for furtherance of your cause. […]

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o-custody-battle-facebookThis may be by far the most legal prejudice we have posted. But it deliberates upon important aspect of law relating to maintenance of spouse and child during the pendency of trial. We hope you enjoy reading this and god forbid, but if need ever be, you could use this for furtherance of your cause.

So the question is whether an application under section 24 will in itself include a claim under section 26? Subsequently, can a court pass order for maintenance of a child without application under section 26?

Different High Courts have differed on this point. Some are of the opinion that child’s maintenance can be claimed under section 24, without any specific application under section 26 and others say otherwise. Law commission considered this point in its 98th report. It was of the opinion that the then existing provisions of section 24 and section 26 clearly state that different applications have to be filed under the two and application under s. 24 cannot mean to contain a request for maintenance of child. However there is no legal clarity for the Supreme Court has never deliberated expressly upon the point.

Judgments of the HC w.r.t. the matter are:

The view that the court cannot grant maintenance of child without a formal application under section 26 has been taken by the following High Courts:-

(i)                Jammu & Kashmir; [Puran Chand v. Kamala Devi, AIR 1981 J & K 5, [Overruled in Amrit Lal Nehru Vs. Usha Nehru Civil First Appeal No. 21 of 1981 in J&K HC]

(ii)             Orissa [Akasam Chinna Babu v. Akasam Parvati, AIR 1967 Orissa 163];

(iii)           Patna [Bankim Chandra v. Anjali, AIR 1972 Pat. 80].

To the contrary, following HCs say that even where there is no separate application for the grant of maintenance to children under section 26, the court should, in a proceeding initiated by the wife under section 24, exercise its discretion and award maintenance to the children:-

(i)                 Andhra Pradesh; [Narendra Kumar v.Suraj Mehta, AIR 1982 A.P. 100]

(ii)               Delhi; [Damodar v. Bimla, (1974) P.L.R. (Del.) 33]

(iii)             Karnataka; [D.Thimmappa v. Nagaveni, AIR 1976 Karn. 215; Subhashini v. Umakanth, AIR 1982 Karn. 115]

(iv)             Kerala; [Radha Kumar v. K.M.K.Nair, (1981) K.L.T. 417 (Sukumaran.J.)]

(v)               Punjab & Haryana; [Balbir Kaur v. Raghubir, AIR 1974 P & H 225] and

(vi)             Rajasthan [Baboo Lal v. Prem Lata, AIR 1974 Raj. 93] 3.3

Supreme Court gave a judgment in this regard in Jasbir Kaur Sehgal v. District Judge, Dehradun (AIR 1997 SC 3397). It said “..Section 24 of the Act no doubt talks of maintenance of 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 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.”

Thereafter amendments were brought about in section 24 and 25 of HMA (proviso wrt judgement being delivered within 60 days). Madras HC considered these amendments important in the latest judgment of S. Sumathi vs R. Sharavanakumar[1] (decided in 2013) and said that proviso to Section 26 removes doubt, if any, that pending disposal of the main proceeding between the husband and wife, an interim order in respect of maintenance of the minor children can be made by the court only under section 26 of the HM Act.

Current opinion after S. Sumathi vs R. Sharavanakumar stands that filing an application under the said part is procedurally incorrect and a new application has to be filed under section 26. Court gave following order in S. Sumathi vs R. Sharavanakumar:

 “…As I have concluded above, this is procedurally incorrect. When this was pointed out, the learned counsel for the petitioners submitted that the minor child may be deleted from the array of parties in I.A.No.1924 of 2010 with liberty to the 1st petitioner to make a separate application for maintenance under Section 26 of The HM Act for the minor child…”

Conclusion: S. Sumathi case may be used to say that filing an application for maintenance of child U/s 24 is procedurally incorrect (though not substantively so). Hence, a fresh application may be instituted u/s 26 for maintenance of child.

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[1] https://indiankanoon.org/doc/26407098/

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