1. This is an appeal under Section 28 of the Hindu Marriage Act and by the husband. He is aggrieved by an interim order of maintenance made in M. C. No. 31 of 1974 on the file of the Additional Civil Judge at Mysore.
2. The matter has arisen in this way: M. C. No. 31 of 1974 was filed by the husband for the restitution of conjugal rights against the wife. In the course of the proceeding the husband also filed an application, I. A. II, seeking custody of his children who are staving with the respondent-wife. When the petition was filed the respondent had three children aged 4, 6, and 9 years. It is also undisputed that since the date of the petition a 4th child has been born. On behalf of the wife an application for interim maintenance was filed presumably pursuant to Section 24 of the Hindu Marriage Act (hereinafter called the Act) by way of I. A. I. The Court, upon affidavits, came to the conclusion that a sum of Rs. 120/- per month had to be paid to the wife and Rs. 50/- per month to each of the three children aforementioned. Aggrieved by this order the husband appeals.
3. Sri. Chandrasekharaiah, learned Counsel for the appellant, urged two contentions, namely, (1) that in an application under Section 24 of the Act no maintanance pendente lite could be awarded to the children; and (2) if such maintenance is awardable to the children, the rate at which it is awarded is excessive.
4. On behalf of the respondent Sri M. Papanna, learned Counsel, contended that even if the application, I. A. I., is construed as one filed under Section 24 of the Act it was still open to the Court to take into account the existence of the children who are to be maintained by the mother for the purpose of determining the rate of such maintenance. Alternatively he contended that in such a case it was open to the Court to take into consideration the provisions of Section 26 of the Act and award maintenance separately in regard to children.
5. In regard to the contention urged by the appellant that the maintenance awarded to the children is excessive, he submitted that having regard to the fact that a fourth child has been born since, the rate determined by the Court below has to be maintained.
6. I now proceed to examine these contentions. In support of the first contention Sri. Chandrasekharaiah placed reliance on two decisions. In Akasam Chinna Babu v. Akasam Parbati, the High Court of Orissa has no doubt observed that in a case falling under Section 24 of the Act no separate pendente lite maintenance could be awarded to the children. It is to be noted here that the said decision has not examined the scope and effect of Section 26 of the Act on which also reliance has been placed by the respondent before me. It is also seen from the order impugned herein that the learned Civil Judge has taken into account Section 26 of the Act while awarding separate maintenance to the children. Hence this decision is not of much assistance to the appellant.
"It would thus be seen that an order can be made if the petitioner has no independent income sufficient for her or his support. No monthly allowance can be granted under Section 24 for the support of the children. That being so, the grant of monthly allowance of Rs. 325/- not only for the support of the respondent but also for the support of the three children is contrary to law and has been made by committing an illegality in exercise of the jurisdiction of the Court under Section 24 of the Act."
On a Perusal of this judgment, apart from the above observation, there is no reference to the provisions of Section 26 of the Act. In the case on hand the Court below has expressly Purported to exercise its power both under Sections 24 and 26 of the Act. Hence, this decision is also not of much assistance to the appellant.
8. On this point, on behalf of the respondent, reliance was Placed on a decision of the High Court of Andhra Pradesh in Katamanchi Appa Rao v. Katamanchi Paradeshamma, (1974) 2 Andh WR 359. In the said decision it is laid down that it was open to a Court while considering an application under Section 24 of the Act to take into account the provisions of Section 26 also whenever it was just and proper. The relevant enunciation reads thus:
"So far as the first Point is concerned, it has to be noticed that while granting maintenance pendente lite to the wife or to the husband, as the case may be, regard should also be had to S. 26. While S. 24 of the Act provides for granting maintenance to the wife or the husband, as the case may be, S. 26 speaks of passing interim orders and also making provision in the decree by the Court with regard to custody, maintenance and education of the minor children consistently with their wishes. When the wife makes an application under Section 24 of the Act to the Court for the grant of interim maintenance to the children also, the Court can grant the relief to the children also under Section 26 wherever it considers just and proper."
In the case on hand, it is no doubt true that in the application, I. A. I. filed for the purpose there is no specific prayer for grant of maintenance to the children. But in the affidavit filed in support of the application the averments clearly indicate that such maintenance is claimed on behalf of the children also. Be that as it may, it seems to me that when a wife claims maintenance and she has some children of her own to support and maintain, any interim maintenance that may be awarded to the wife would be meaningless if the same was not intended to provide for the maintenance of the children also. In my view, the enunciation of the High Court of Andhra Pradesh with which I am in respectful agreement, is clearly applicable to the facts of the present case.
9. It is however contended on behalf of the appellant that the quantum of maintenance awarded to the children was excessive in that it has not given due weight and consideration to the basic pay drawn by the appellant which is only Rs. 550/- per month, the balance of the income having been made up of allowances of various kinds inclusive of City Compensatory allowance. Sri. Chandrasekharaiah also drew attention to several other circumstances bearing upon the expenses to be incurred by the appellant for his own maintenance and higher education. Taking all these circumstances into consideration and also the fact that a fourth child has been born to the respondent, I think it proper to determine the maintenance payable on account of all the children together at a round sum of Rs. 100/- per month. The impugned order stands modified accordingly.
10. In the result, this appeal succeeds in part and is allowed to the extent indicated above. In other respects the order remains undisturbed. In the circumstances of the case I direct the parties to bear their own costs.
11. The appellant, however, is allowed to pay the arrears of maintenance in six equal monthly instalments along with the current dues.
12. Appeal partly allowed.