ORDER
S. Maharajan, J.
1. The appellant Munuswamy Rajoo is the lawfully wedded husband of Hamsa Rani, the respondent. The marriage between the two took place on 6th June, 1963. A son was born out of the wedlock on 22nd December, 1964. The case of the respondent was that the appellant was having illicit intimacy with one Sundarammal and that consequently he treated her (the respondent) cruelly and drove her and her son away from his house on 16th October, 1966. The appellant filed a petition, OP. No. 208 of 1966 against the respondent, for dissolution of the marriage on the ground of desertion and adultery. This petition was dismissed because the appellant failed to pay the litigation expenses and interim maintenance ordered by the Court. Unfortunately, the appellant allowed this order to become final. Meanwhile, the respondent-wife filed O.P. No. 235 of 1968 against the appellant-husband for restitution of conjugal rights. The appellant filed a counter vehemently contesting that petition on the ground that the respondent had deserted him and was living in adultery. These objections were over-ruled by the trial Court and a decree for restitution of conjugal rights was granted on 16th December, 1970. No appeal was filed against this decree either, with the result, it has also become final and binding upon the husband. Subsequent to the decree in O.P. No. 235 of 1968, the respondent filed I.A. No. 3800 of 1971 under Section 25 of the Hindu Marriage Act, praying for a direction to the appellant to pay her Rs. 150 per month for her alimony as well as for the maintenance of her child, who is now about seven years old. Notice of this application was served upon the appellant, who filed a counter through Counsel raising several objections both to the maintainability of the application and to the quantum of the allowance claimed. The trial Court, on a consideration of the contentions, passed an order directing the appellant to pay Rs. 75 per month as alimony to the respondent and Rs. 25 per month as maintenance for the child till it attained majority. Against this order, the appellant preferred an appeal in C.M.A. No. 115 of 1971 on the file of the Principal Judge, City Civil Court, Madras, who, after a thorough discussion, confirmed the order of the trial Court and dismissed the appeal with costs. It is as against this dismissal that the present appeal has been filed.
2. I shall first deal with the objection relating to the quantum of the amount fixed. Admittedly, the appellant is an employee of the Food Corporation of India drawing a monthly salary of about Rs. 501 inclusive of all allowances. His case is that he is very sickly and that he has to support Sundarammal, his father's concubine, who has been bringing him up from his childhood. It is unnecessary to consider whether Sundarammal is the concubine of the appellant as alleged by the respondent or the concubine of his father. Assuming that it is his duty to support that woman, his duty to support his lawfully wedded wife and his own legitimate son is even more imperative. The amount of Rs. 100 awarded for the maintenance of his wife and child constitutes but 1/5th of the gross monthly income that he is getting. It is true that the respondent owns 35 cents of land. There is no definite evidence as to the income it would fetch. Having regard to the extent of the land and its quality, I do not think that it would fetch any considerable income. Both the Courts below have, with reference to the relevant legal principles quantified the maintenance amount at Rs. 75 per month for the respondent and Rs. 25 per month for the child. I see little reason to interfere with the quantum concurrently fixed by both the Courts below.
3. It is next contended that an interlocutory application filed for alimony and maintenance after the disposal of O.P. No. 235 of 1968 is not maintainable. I am unable to agree.
Section 25 of the Hindu Marriage Act, 1955, runs as follows:
(1) Any Court exercising jurisdiction under this Act may, at the time of passing any decree or at any time subsequent thereto, on application made to it for the purpose by either the wife or the husband, as the case may be, order that the respondent shall, while the applicant remains unmarried, pay to the applicant for her or his maintenance and support such gross sum or such monthly or periodical sum for a term not exceeding the life of the applicant as, having regard to the respondent's own income and other property, if any, the income and other property of the applicant and the conduct of the parties, it may seem to the Court to be just ....
(2) If the Court is satisfied that there is a charge in the circumstances of either party at any time after it has made an/ order under Sub-section (1), it may, at the instance of either party, vary, modify or rescind any such order an such manner as the Court may deem just.
(3) If the Court is satisfied that the party in whose favour an order has been made under this section has remarried or, if such party is the wife, that she has not remained chaste, or, if such party is the husband, that he has had sexual intercourse with any woman outside wedlock, it shall rescind the order.
4. It will be found from Clause (1) of Section 25 that the application for the maintenance of the wife may be made either at the time the Court passes the decree or at any time subsequent thereto.-It is, therefore, wrong to contend that the application made by the wife for alimony subsequent to the disposal of the main O.P., is not maintainable. As regards the maintenance of the child, it is true that Section 25 makes no reference thereto. But then Section 26 of the Act provides:
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, after the decree, upon application: by petition for the purpose, make from time to time, all such orders and provisions with respect to the custody, maintenance and education of such children as might have been made by such decree or interim orders in case the proceedings for obtaining such decree were still pending, and the Court may also from time to time revoke, suspend or vary any such orders and provisions previously made.
It is clear from this section that the jurisdiction to pass orders with respect to the custody, maintenance and education of minor children continues even after the main proceeding, initiated under the Act, has come to an end. The expressions that 'the Court may, after the decree upon application by petition for the purpose, make from time to time, all such orders and provisions with respect to the custody, maintenance and education of such children etc., ' and ' that the Court may also from time to time revoke, suspend or vary and such orders' would show that the decree in the main proceeding does not terminate the power of the Court to pass suitable orders relating to the custody, maintenance and education of the minor children. These orders are essentially in the nature of interim orders and are liable to be modified, revoked or suspended if there be a change in the relevant circumstances of the parties.
5. The contention that the Court would have no power to make a post-decretal order has, therefore, been rightly overruled by the Courts below. It is true that in the application filed by the respondent-wife, Section 26 of the Act has not been quoted. But then, that is only a formal flaw and it cannot affect the substance of her prayer, which must be deemed to be one for a relief both under Section 25 and Section 26 of the Act.
6. One other contention raised by the appellant is that under Rule 1 of the Rules framed by the Madras High Court under the Hindu Marriage Act, a petition under Section 26 of the Act shall be initiated by an original petition and not by an Interlocutory Application like the one filed by the respondent in the trial Court. Rule 1 says that the following proceedings under the Act shall be initiated by original petitions:
(i) Under Section 9 for restitution of conjugal rights;
(ii) Under Sub-section (1) of Section 10 for judicial separation;
(iii) Under Sub-section (2) of Section 10 for rescinding a decree for judicial separation;
(iv) Under Section 11 for declaring a marriage null and void;
(v) Under Section 12 for annulment of a marriage by a decree of nullity;
(vi) Under Section 13 for divorce;
(vii) Under Section 26 to make orders and provisions with respect to the custody, maintenance and education of children. It is true that as per this Rule, proceedings under Section 26 of the Act are to be initiated by means of an Original Petition. But then Rule 2 of the same Rules says that 'every other proceedings subsequent to the petition shall be by an interlocutory application.
7. In this case, the petition for restitution of conjugal rights under Section 9 was initiated by an Original Petition in conformity with Rule 1. As Rule 2 says that every other proceeding subsequent to the petition shall be an interlocutory application, it may be construed to mean that once the main proceeding has been initiated by an Original Petition, any other proceeding like an application for maintenance subsequent to the petition can be by an interlocutory applications. At any rate, there is some ambiguity to whether the party to a proceeding for restitution of conjugal rights, which has been initiated by an Original Petition, should necessarily file another original petition before invoking Section 26 of the Act. Assuming that an Original petition should have been filed by the respondent I shall examine if her failure to do so should vitiate the proceedings. Be it noted that the appellant did not raise any objection to the maintainability of the interlocutory application on the ground now alleged. I have gone through the counter and I find that this objection was not raised at all there. Neither in the grounds of appeal in the C.M.A., nor in the grounds of appeal in this C.M.S.A., has this objection to the form of the petition been raised. I fail to see how this irregularity which, in my view, is immaterial, has in any manner prejudiced the appellant substantially. Notice of the Interlocutory Application was served upon him. He was given an opportunity to file a counter and it was open to him to lead evidence and substantiate his objections. I do not think that the failure of the respondent to file a verified Original Petition instead of an Interlocutory Application, supported by an affidavit, could in any manner prejudice the appellant.
8. Section 99, Civil Procedure Code, prescribes that 'no decree shall be reversed or substantially varied, nor shall any case be remanded, in appeal on account of any misjoinder of parties or causes of action or any error, defect or irregularity in any proceedings in the suit, not affecting the merits of the case or the jurisdiction of the Court.'
9. The error committed by the respondent, if at all, is only a procedural error, not affecting the merits of the case or the jurisdiction of the Court. I am, therefore, not prepared to countenance this hyper-technical argument, which has been rightly rejected by the first appellate Court.
10. The next argument of learned Counsel of the appellant is no less hyper-technical. According to him, Section 25 empowers the Court to award maintenance only to a spouse who ' remains unmarried ' and not to a person like the respondent who still 'remains married' to the appellant. The language of the section is clumsy, though the clear intendment of the section is that any Court exercising jurisdiction under the Hindu Marriage Act shall have the power to award maintenance in any proceeding, be it none for judicial separation or for restriction of conjugal rights or for dissolution of marriage by divorce or for annulment of marriage by a decree of nulity. This view is fortified both by the heading of the section and the language of the principal clause in the section. The heading in Section 25 runs as follows: 'Permanent alimony and maintenance'. The heading suggests that, it applies to all cases coming under the Hindu Marriage Act and not necessarily and exclusively to cases where the marital tie has been dissolved by an order of Court.
11. In fact, the main clause in the section --'any Court exercising jurisdiction under this Act may, at the time of passing any decree or at any time subsequent thereto ...... shall ...... pay to the applicant for her or his maintenance ' etc., .... indicates the legislative intent to confer upon any Court exercising jurisdiction under the Hindu Marriage Act, the power to award maintenance in any proceeding under the Act. But unfortunately, later on, in a subordinate clause, the Legislature uses the words 'while the applicant remains unmarried'. This expression is not intended to cut down or curtail the scope of Section 25. Nor can it be construed as applying only to a case of a dissolution of marriage or an annulment of marriage. In the last two cases, no doubt the order should direct the respondent to pay alimony only so long as the applicant remains unmarried. But in the other types of cases, where even after the decree, the marital tie continues to bind both parties, it is undoubtedly within the power of the Court, as in fact it is its duty, to award maintenance to the spouse entitled thereto. It is, therefore, wrong to whittle down the scope of Section 25 by invoking the clumsy phrase, ' while the applicant remains unmarried', a phrase, which has been inadvertently used by an unimaginative draftman. The phrase 'while the applicant remains unmarried' was evidently intended to do duty for the expression, 'while the applicant remains without incurring any legal disability, justifying the rescission of the allowance awarded under the decree'. It is the duty of the Court to put a construction upon the section, which does not attribute absurdity to the Legislature and which would advance the remedy and suppress the mischief. A Division Bench of the Calcutta High Court arrived at the same conclusion, but by adopting a somewhat different route.
12. In Minarani v. Dasarath : AIR1963Cal428 , a similar argument was advanced. On behalf of the husband, it was urged that since the payment of maintenance under Section 25 of the Hindu Marriage Act, must be limited to the period ' while the applicant remains unmarried ', the applicant under the section must satisfy the condition that she or he was ' unmarried ', and as the petitioner had not obtained a decree of divorce or nullity, she was not unmarried, being still the married wife of the opposite party, and consequently her application under Section 25 was not maintainable. This argument was repelled by the learned Judges of the Calcutta High Court in the following words:
An order for separate maintenance under Section 25 may be passed in favour of a married woman living apart from her husband, e.g., on the passing of decree for judicial separation or of the passing of a decree for restitution of conjugal rights in the event of the decree not being complied with.. (This is exactly the case here.) The expression 'any decree' in Section 25 is broad enough to cover any decree of divorce or nullity or of judicial separation or for restitution of conjugal rights. The heading and the body of the section refer to 'maintenance', 'permanent alimony ' and ' payment of periodical sums' which under the English practice are respectively the names of allowances granted after the passing of a decree of divorce or nullity, a decree of judicial separation and a decree for restitution of conjugal rights .... The scheme of Sections 24, 25 and 26 of the Hindu Marriage Act, 1955, appears to be that the Court is vested with the power of passing orders for maintenance of a spouse and for the custody, maintenance and education of minor children of the marriage during the pendency of any proceeding as also on the passing of any decree under Sections 9 to 14 of the Act. In a proper case the Court has, therefore, the power under Section 25 to pass an order for maintenance in favour of the applicant who is a married woman. The condition that the maintenance is to be paid ' while the applicant remains unmarried ' is attached to every order for maintenance passed under Section 25. In the context of Section 25 (1) the condition means 'while the applicant is not remarried.
This condition recalls to our mind the clause ' dum sola et casta vizerit', which means 'while she remains chaste and unmarried '. Under the English practice, formerly, it was usual to attach those conditions to an order for maintenance of the wife after a decree of divorce or nullity, see Fisher v. Fisher (1961) 2 S.W. and T.R .410 but now the insertion of either condition has become the exception rather than the rule, Halsbury's Laws of England., Articles 583, 984 and Raydon on Divorce, 8th Edition, pages 742-43-The rigid policy of Section 25 of the Hindu Marriage Act, 1955, however, is that a party in whose favour an order for maintenance is passed cannot claim any maintenance under the order if subsequently the party has re-married or has become guilty of sexual immorality the Court has no discretion in the matter; upon the party's re-marriage the maintenance ceases and the Court must rescind the order. The Court is also bound to rescind the order on the party becoming guilty of sexual immorality as mentioned in the section. The word 'unmarried' has several meanings. An interesting discussion of its meaning will be found in the case of Soleman Bibi v. East Indian Railway 37 C.W.N. 453 : A.I.R. 1933 Cal. 58 (a). The popular meaning of the word is 'never having been married'. Its dictionary meaning is 'not married '. Now the word ' unmarried' in Section 25 (1) cannot mean 'never having been married ', because the applicant must have been a husband or a wife and therefore must have been married; nor can it mean 'not married'; for an order under Section 25 may be passed in favour of a married woman on the passing of a decree of judicial separation or for restitution of conjugal rights. In the context of Section 25 (1) the word means ' not re-married ', for this reason Section 25 (3) provides inter alia for rescission of the order if she was re-married. The reason for attaching the condition ' while the applicant remains unmarried ' to an order for maintenance passed in favour of a married woman after a decree of judicial separation or for restitution of conjugal rights may be that the order will remain effective though she subsequently obtains a decree of divorce or nullity and becomes free to marry again. The petitioner not having remarried was for purposes of Section 25 'unmarried' and her application cannot be dismissed on the ground that she was not unmarried.
13. The above observations of the Calcutta High Court proceed on the assumption (with which I agree) that the clause in question does not say what it really means. I am not sure if the emendation suggested by their Lordships would effectively solve all the problems. In the total context of the section, the words ' while the applicant remains unmarried ' may best be construed, in my view, to mean ' so long as the applicant continues to remain entitled.; in the eye of law, to maintenance' The inelegant and inadequately constructed subordinate clause in the section shuts out of its imagination and contemplation two out of the four contingencies indubitably contemplated by the principal clause in the section and there is little reason why the amplitude of the whole section should be curtailed by harping upon an unintended error that has crept into the subordinate clause in the section.
14. As for the custody of the child, I may observe that the child has been in maternal custody ever since its birth, and the father, namely, the appellant has never issued any notice evincing any anxiety to get custody of the child or calling upon the respondent to hand over custody of the child. It is indeed amazing that neither in the proceedings which he initiated for dissolution of the marriage on the ground of adultery nor in the counter that he filed in his wife's application for restitution of conjugal rights, did he show any anxiety to take over the custody of the child. Only in his counter to I.A. No. 3800 of 1971, in which, his wife prayed for maintenance, did he say in a casual and half-hearted manner that he was prepared to keep custody of the child. Having regard to the tender age of the child and having regard to the past conduct of the parties in relation to the child, the order passed by the Courts below directing the father to pay maintenance at the rate of Rs. 25 so long as the child is in the custody of the mother is justified.
It is open to the appellant, if he is so advised and if the circumstances change to move the Court for modification, alteration or rescission of the order relating to child custody and the quantum of maintenance.
15. In the result, this appeals fails and will stand dismissed with costs. Leave refused.