Section 24 HMA and Section 36 SMA – Enhancement Of Maintenance Pendente Lite

Section 24 of the Hindu Marriage Act deals with maintenance pendente lite and expenses of proceedings. It reads as follows: Where in any proceeding under this Act it appears to the court that either the wife or the husband, as the case may be, has no independent income sufficient for her or his support and the necessary expenses of the proceeding, it may, on the application of the wife or the husband, order the respondent to pay to the petitioner the expenses of the proceeding, and monthly during the proceeding such sum as, having regard to the petitioner’s own income and the income of the respondent, it may seem to the court to be reasonable.

Section 24 of the Hindu Marriage Act unlike other Acts provides for maintenance of both the husband and the wife [ Chandana Guha Roy vs Goutam Guha Roy AIR 2004 Cal 36 ]

Section 36 of the Special Marriage Act, which deals with Alimony pendente lite, reads as follows―Where in any proceeding under Chapter V or Chapter VI it appears to the district court that the wife has no independent income sufficient for her support and the necessary expenses of the proceeding, it may, on the application of the wife, order the husband to pay to her the expenses of the proceeding, and weekly or monthly during the proceeding such sum as having regard to the husband’s income, it may seem to the court to be reasonable.

There is no provision in Hindu Marriage Act or the Special Marriage Act which expressly talks about enhancement or alteration of maintenance [unlike Section 127 CrPC ]

When there is no express provision in the Hindu Marriage Act to vary the maintenance granted under Section 24 of the Act, provisions of the General Clauses Act would come into play, the Madras High Court has held in J. Anitha vs. J Prakash.  As per Section 21 of the General Clauses Act, power to issue include power to add, amend, vary or rescind orders.

Disagreeing with this view, the Calcutta High Court in Soumya Majumder vs. Shressha Dhar Majumder, 2017(2) CLJ(Cal) 257 observed that, under Section 24 of the Hindu Marriage Act or Section 36 of the Special Marriage Act, the legislature did not vest any such jurisdiction upon the Court for any alteration in the amount of maintenance pendente lite which was directed to pay till disposal of the Matrimonial suit. Clause 21 of the General Clauses Act, according to the High Court, has no role to play to interpret the provision of Section 24 to any other direction since the specific statutory provision like Section 24 or Section 36 is noticed to be selfcontained. The court therefore held that these provisions do not vest power of enhancement of the amount, once decided finally during pendency of the suit.

But, in Tripti Chakraborty vs Anjan Chakraborty, the Calcutta High Court held that this view taken by Soumya Majumdar (supra) is per-incurrium and does not lay down the correct law as the said decision was passed without considering the Supreme Court decision in the case of Shipra Bhattacharya vs. Dr. Aparesh Bhattacharya (2009) 4 SCC 36 and the earlier High Court decision in Bipasha Bhowal vs. Biplab Bhowal 2011(1) CHN (Cal) 239. In Shipra Bhattacharya (supra), the Supreme Court held that the wife was entitled to enhancement of the alimony pendente lite and enhanced the monthly alimony pendente lite in her favour. However, there is not much legal discussion in the said judgment on this issue. This judgment was followed in Soma Dey (Dutta) vs Sri Sankar Dutta.

There is an old judgment of the Rajasthan High Court of Devki vs Purshotam Kewalia AIR 1973 Rajasthan 2 on this issue in which it was observed thus : If there is no enabling provision in the Act for changing such an order by the Court, there is at the same time no disabling provision either and, therefore, the Court can in an appropriate case exercise its inherent powers to vary an order of maintenance provided there is a change in circumstances justifying variation of the order. If that were not so, it may lead to manifest injustice in some cases, for example, at the time of granting of maintenance the other spouse may be having a substantial income and after sometime if that income were to be lost by change of fortune or on account of some accidental causes then the continuance of the same maintenance may result in hardship to the other spouse who is to pay the maintenance.

The Delhi High Court, in Anuradha v. Santoshnath Khanna AIR 1976 Delhi 246, followed this Rajasthan HC decision and held that a court exercising powers under section 24 of the Hindu Marriage Act possesses inherent jurisdiction and power to vary, modify, rescind or temporarily suspend its previous order. This view was followed by the Orissa High Court in Laxmi Priya Rout vs Kama Prasad Rout AIR 1992 Ori 88 amd Madhya Pradesh High Court in Neelam vs Kailash Bajpai II (1994) DMC 188 and  Janki Bai vs Prem Narayan Kushwaha AIR 2006 MP 1.

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