Judgment:
ORDER
1. Heard argument and Judgment is as follows.
2. Petitioners are the applicants in Misc. Case No. 104 of 2006 under Section 24 of the Hindu Marriage Act, 1955 (in short 'the Act').That application was filed in C.P. No. 310 of 2006. Petitioner No. 1 filed that C.P. for restitution of conjugal rights. Together with petition under Section 9 of the Act she filed the application under Section 24 of the Act. The Respondent-Opposite Party entered appearance in that proceeding on 08.12.2006 filed his written statement and also contested the application under Section 24 of the Act.
3. On consideration of submission of both the parties, Learned Judge, Family Court, Cuttack awarded interim maintenance @ Rs. 800 per month to the Petitioner No. 1 and @ Rs. 400 per month to the Petitioner No. 2 on the ground that the relationship between the parties are admitted and the husband has a net salary of Rs. 7655. Learned Counsel for the Opposite Party-husband states that Family Court, Cuttack did not consider the objection of the Opposite Party on the issue that the child is not entitled to maintenance under Section 24 of the Act in view of the decision of this Court in the case of Purusottam Das Agarwal v. Smt. Puspa Devi : AIR 1982 Orissa 270 wherein it has been held that order of maintenance to a child is not within the purview of Section 24 of the Act and accordingly the order for such maintenance was refused.
4. In course of submissions Dr. Das, Learned Counsel for the Petitioner relies on the case of Jasbir Kaur Sehgal v. District Judge, Dehradun reported in : AIR 1997 SC 3397 in which Hon'ble Apex Court has propounded that;
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 wife and one with him. 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 whole 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 daughters. 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.
5. Section 26 of the Act provides that:
26. Custody of children - In any proceeding under this Act, the Court may, from time to time, pass such interim orders and make such provisions in the decree as it may deem just and proper with respect to the custody, maintenance and education of minor children, consistently with their wishes, wherever possible, and may alter the decree, upon application by petition for the purpose, make from time to time all such orders and provisions with decree, shall, as far as possible, be disposed of within sixty days from the date of service of notice on the Respondent.
6. It is clearly readable from Section 26 that interim orders can be passed by the Court relating to maintenance of minor children in a proceeding for Restitution of Conjugal Right, Judicial Separation or Divorce. It is not in dispute that Petitioners jointly applied for interim maintenance. Though in the application it was mentioned that interim maintenance is prayed for under Section 24 of the Act, but that lacuna alone is not sufficient to refuse maintenance to the child if she is entitled to maintenance under Section 26 of the Act. In such a case, it is the substance and not the form which is very much material while considering the prayer for interim maintenance. Therefore we find no illegality in the impugned order relating to grant of interim maintenance to the minor child.
7. Petitioners' contention is for payment of maintenance from the date of application i.e. 08.05.2006 whereas the Family Court has awarded that maintenance with effect from the date of order i.e. 23.06.2008. In that respect, pursuing the relief of interim maintenance from the date of application Learned Counsel for the Petitioners relies on the case of Gouri Cas v. Pradyumna Kumar Das reported in : 62 (1986) C.L.T. 218. Learned Single Judge held that:
The next question is from what point of time is the maintenance payable. Section 24 does not contain any limiting provision. No fetters have been imposed on the discretion of the Court. What should be the date from which maintenance is payable where the applicant is the Petitioner in the substantive petition under the Hindu Marriage Act and when he or she is the Respondent? As regards the first category, in some decision it has been held that the date from which the maintenance is payable is the date on which summons is served on the Respondent in the main proceedings. The contrary view maintain that the date should be the date of the application for maintenance for, otherwise, the clever Respondent with a view to thwarting the claim for interim maintenance might keep himself out of the way of service of summons. In my view, ordinarily it should be the date of service of summons. No hard and fast rule can be laid down. The Court has to decide the date from which maintenance is payable having regard to the facts and circumstances of each case and the conduct of the parties-see Narendra Kumar Mehta v. Smt. Suraj Mehta. Also in this connection see N. Subramanyam v. Mrs. M.G. Saraswathi : Sarita Mehta v. Arvind K. Mehta. Where the applicant is Respondent, ordinarily it should be the date of service of summons - see S. Radhakumari v. K.M.K. Nair. Where, however, there has been inordinate delay in making the application, which could have application, which could have been made earlier, laches on the part of the applicant might be taken into account as circumstance disentitling her maintenance from a date prior to the date of application.
8. It is apparent from the above quoted ratio that grant of interim maintenance Under Section 24 of the Act whether from the date of application, date of appearance of the Defendant or date of order, that has to be considered appropriately under the given facts & circumstance & not by any fixed or rigid rule, having not been so provided in Section 24 of the Act.
9. In this case, Petitioners claim their destitute condition and also claim for interim maintenance during the proceeding under Section 9 of the Hindu Marriage Act and Respondent entered appearance in the proceeding on 08.12.2006. The lower Court record reveals that Respondent did not seek for any adjournment for hearing and disposal of the proceeding under Section 24 of the Hindu Marriage Act. Learned Judge. Family Court has not assigned any reason as to why he passed the order of interim maintenance w.e.f. the date of order. When admittedly the parties are living separately and prima facie it appears that the Petitioners have no independent source of income, therefore, in our view order should have been passed for payment of interim maintenance from the date of appearance of the Opposite Party-husband. Thus we modify the order accordingly to make the interim maintenance payable from December, 2006. Arrear maintenance be paid by the Opposite Party in six monthly installments while making payment of interim maintenance as per the impugned order.
10. Petitioners' claim for enhancement of maintenance of the wife @' 1/5th of the total net income of the husband and further 1 /5th to the daughter i.e., 2/5th of the net income determined by the Court below. In that respect, Petitioners rely on the case of Laxmi Oram @ Toppo v. Birsa Oram reported in : 94 (2002) C.L.T. 476. Keeping in view the facts and circumstances of the present case and finding that the decisions in that case does not have a force of a ratio and binding precedent, we don't disturb the quantum fixed by the Learned Trial Court because we are in seisin of the matter in a Writ Petition under Article 227 of the Constitution and we don't find illegality having been committed by the Family Court in determining the quantum mentioned in the impugned order. Under such circumstances, contention for enhancement is rejected.
11. No other point is raised & no other argument is advanced by the parties.
12. For the reasons indicated above the Writ Petition is disposed of by modifying the impugned order and making the interim maintenance payable w.e.f. December, 2006 and making the aforesaid direction as the mode of payment of the arrears.
13. L.C.R. be immediately returned to the Learned Court below.
14. At this stage, Mr. Nayak, Learned Counsel for the Opposite Party states that husband's application under Section 13 of the Act vide C.P. No. 260 of 2008 is also pending adjudication before the Family Court, Cuttack. He states that both the proceedings be heard and disposed of analogously by accepting one set of evidence. The wife-Petitioner has no objection to that submission. Hence, we direct that both the proceedings be tagged, heard and disposed of analogously and without granting liberal adjournment.