Under the English matrimonial system, the right of a wife for maintenance is a well-recognised incident of the status of matrimony. Generally speaking, therefore, it would be the duty of the husband to pay the wife’s costs in any matrimonial proceedings, and also to provide such maintenance and support pending the disposal of such proceeding. S. 24 not only recongnises these principles, but goes a step further to lay down that such an order can be made by the Court even in favour of the husband.
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S. 24 provides that in any proceedings under the Act, if the Court is of the opinion that either the wife or the husband has no independent income for her or his support and the necessary expenses of the proceedings, it may, on the application of one spouse, order the other spouse to pay –
ADVERTISEMENTS:
(i) The expenses of the proceedings; and
(ii) During the proceeding, such sum monthly, as the Court feels reasonable, having regard to the income of both the spouses.
It may be noted that an analogous provision has been made in the Special Marriage Act, 1954, with the important difference that
under that Act, it is only the wife who can claim alimony pendente lite. (i.e., alimony during the pendency of the Court proceedings).
If the decision of the Court in the matrimonial matter is appealed against, the Appeal Court would also have a similar power. In England, the Appeal Court does not have such power.
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S. 24 makes it clear that the costs of the proceedings and alimony pendente lite can be ordered to be paid in any proceedings under the Act, viz., for restitution of conjugal rights, judicial separation, divorce, or nullity of a void or voidable marriage. The mere fact that the Respondent denies the factum of the marriage is no bar to the power conferred on the Court by this section.
Such applications are to be disposed of, as far as possible, within sixty days from the date of service of notice on the respondent husband or wife:
It is clear that the Court has ample discretion in passing such an order, and the amount of interim maintenance that one spouse may be ordered to pay to the other will be such as appears reasonable to the Court in the exercise of such discretion. In exercising this discretion, the Court takes into consideration, the income of the spouse who makes such an application, as also the income of the other spouse, i.e., the spouse who is ordered to pay the expenses and alimony pendente lite.
The discretion which is conferred on the Court is nevertheless judicial, and not arbitrary or capricious. This discretion is to be guided by sound principles of matrimonial law, and has to be exercised within the ambit of S. 24, and having regard to the objects of the Act.
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The Madras High Court had held that under S. 24, interim maintenance should be a “reasonable” amount. This is not restricted to one-fifth of the husband’s income, as is the position under the Divorce Act, 1869.
Also, the fact that the wife’s brother is an income-earner is not a valid ground for refusing interim maintenance to her. In the case before the Court, a sum of Rs. 150 per month granted to the wife by the lower court was held to be reasonable. (Rajendran v. Gajalakshmi, A.I.R. 1985 Mad. 195)
It is to be remembered that S. 25 of the Act (which deals with permanent alimony and maintenance and is considered below) is differently worded, and under this section, the conduct of the parties is an important factor which would influence the discretion of the Court.
All the same, even under this section, the Court will not ignore the conduct of the parties. Thus, for instance, if a wife has brought cohabitation to an end by her own misconduct, the Court may refuse to grant her any relief under S. 24.
In a case decided by the Bombay High Court, it was pointed out that S. 24 of the Act speaks of fixing a reasonable amount. Therefore, the question is essentially one of balancing several competing claims. The Court held that, ordinarily, reasonableness would require that the wife should be ensured of the same amenities and comforts as she was getting when residing with her husband minus the reduction brought about by separation and creation of two establishments. (Dinesh Mehta v. Usha Mehta, (1978) 80 B.L.R. 298)
The Supreme Court has held that the main consideration for the grant of maintenance pendant lite is whether the spouse seeking such maintenance has independent income which is sufficient for his or her support. Once it is shown that he or she does not, the court is bound to grant maintenance and the only discretion left with the court is as regards its quantum. (Amarjit Kaur v. Harbhajan Singh, (2003) 10 SCC 228)
The Bombay High Court has observed that the fact that there is a strong possibility of the marriage being declared a nullity is no ground for denying interim maintenance and expenses of the litigation to the spouse claiming the same (Sushila Chhadua v. Viresh, (1996) 1 Mah. L. J. 288)