S.C. Mohapatra, J.
1. This is an appeal by the wife under Section 28 of the Hindu Marriage Act, 1955 (hereinafter referred to as 'the Act").
2. Admittedly, the parties are parents of two sons and a daughter. Daughter is about 16 years old. One son is about 8 years old and the other is five years old. Both the parties are employed. Husband is an Assistant and wife is a Primary School Teacher.
3. While the spouses were leading their marital life, there was separation between them. Wife resided separately with the youngest son aged five years. Daughter stayed with the sister of her father. Eldest son stayed with his father. Husband filed application for dissolution of marriage by a decree for divorce under the act registered as O.S. 1 of 1987.
4. On receipt of notice wife filed an application for pendente lite maintenance of Rs. 500/- for her, Rs. 350/- for her son and litigation
2. expenses of Rs. 3,000/-. Husband resisted the application stating that he is getting Rs. 1,283/- per month from which he is spending Rs. 150/- per month for house rent, Rs. 125/- for education of the son with him and Rs. 200/-for education of his daughter. He claims to be spending Rs. 60/- for his treatment and Rs. 100/- for commuting the distance to his office. He pays Rs. 100/- to a cook engaged by him. With this claim the expenditure disclosed comes to Rs. 735/- leaving a balance of Rs. 540/- for other expenses. He claimed that the wife is getting a salary of about Rs. 1,000/-which is sufficient for supporting her and the son. So far as litigation expenses the husband claimed that the wife is getting legal aid from the State.
5. At enquiry wife examined herself. She produced the finally published record of rights to indicate the immovable properties of her husband. She filed a certificate from the owner of the house that she payirg Rs. 250/- per month as bouse rent. She filed another certificate that she pays Rs. 300/- for education of the son with her. Husband examined himself and their daughter. Salary certificate, house rent eceipt, receipt in support of bis treatment, some letters with regard to expenses for daughter and his mother. He claimed Rs. 300/- from the wife for his maintenance and Rs. 500/- towards litigation expenses.
6. Trial Court held that the wife draws a monthly salary of about Rs. 900/-. Her school and school of the boy is near her residence. Accordingly, her income is sufficient to support herself and her son. Husband is drawing monthly salary of Rs. 1,283/- having three dependants and as such is not in a position to pay the maintenance to the petitioner. As regards litigation expenses, the same was refused on the ground that the wife gets legal aid.
7. Mr. D.K. Mohapatra, learned counsel for the respondent raised a preliminary objection that appeal is not maintainable. Mr. R. Biswal, learned counsel for the appellant while conceding that appeal against an order under Section 24 of the Act is not maintainable, submitted that the appeal is maintainable so far as the claim for maintenance of the child, is concerned.
8. It is true that application for pendente lite maintenance of wife and child and litigation expenses has been nomenclated to be one under Section 24 of the Act. There is no scope for granting maintenance to a child under Section 24 of the Act. In ILR 1967 Cut. 439 Akasam China Babu v. Akasam Parbati and Anr. a Division Bench held that under Section 24 only wife or husband as the case may be is entitled to pendents lite maintenance and daughter cannot be granted such maintenance. Same is the principle laid down in AIR 1982 Orissa 270 Purusottam Das Agarwalla v. Smt. Puspa Devi. In AIR 1983 Orissa 74 Mahendra Kumar Misra v. Smt. Snehalata Kar the decision of the Division Bench was distinguished on the ground that Section 26 of the Act was not considered in the said decision. On the same principle, the Single Judge decision reported in AIR 1982 Orissa 270 (Supra) is distinguishable. Section 26 of the Act provides that in a proceeding under the Act, Court can pass interim orders with respect to the maintenance and education of minor child. Therefore, nomenclature of an application cannot decide the maintainability of such application where interim relief is prayed for maintenance and education of the child. Where an application contains prayer for maintenance of a spouse and the minor child and litigation expenses, the same can be treated to be one under Sections 24 and 26 of the Act.
9. Appeal is a right created under the Statute. In the Act right of appeal is vested on a party under Section 28 of the Act. Mr. Biswal rightly conceded that no appeal under Section 28 lies against an order under Section 24 of the Act. Learned counsel, however, submitted that an appeal lies against an order refusing interim maintenance and education expenses of a child under Section 26 of the Act. Mr. Mohapatra, learned counsel for the respondent relied upon Section 28(2) and submitted that against interim order under Section 26 no appeal lies. Section 28(2) reads as follows :
"(2) Orders made by the court in any proceeding under this Act, under Section 25 or Section 26 shall, subject to the provisions of Sub-section (3), be appelable if they are not interim orders, and every such appeal shall lie to the court to which appeals ordinarily lie from the decisions of the court given in exercise of its original civil jurisdiction."
The term 'if they are not interim orders' makes it clear that no appeal lies against interim order under Section 26. Contention of Mr. Mohapatra has great force and the appeal filed by the wife is not maintainable.
10. Under Section 21, proceedings under the Act are regulated by the Code of Civil Procedure. Accordingly, an order against which no appeal lies is revisable under Section 115 Civil Procedure Code, if the same satisfies the conditions for revision. It is true that no prayer has been made by Mr. Biswal for converting the appeal to revision application.
This would not be possible since in a revision higher court-fee is payable.
However, there is no bar under Section 115 C.P.C., for the Court to exercise the power of revision suo motu in deserving cases even though an application has not been filed by a party.
11. The order arises out of a matrimonial proceeding. Discretion vested in Court under Sections 24 and 26 is for benefit of the parties. Wife and child are deprived of the Company of the respondent. As has rightly been indicated by Mr. D.K. Mohapatra, learned counsel for the respon dent, requirements of Rule 13 of the rules made by this Court under the Act for pendente lite maintenance under Section 24 and for maintenance and education of the child under Section 26 have not been satisfied. Even appeal has been filed where no appeal lies. This may be on account of the fact that the litigation is conducted by legal aid received. In such circum stances, unless Court dees to the occasion, beneficial provision under Sections 24 and 26 shall be frustrated to the detriment of the wife and the child who are recognised to belong to deprived class. Accordingly, I decided to exercise the suo motu power of revision. By exercise of such power, respondent is not prejudiced since he has got sufficient opportunity to be heard in the matter.
12. Non-consideration of Section 26 of the Act by the trial court is a material irregularity in exercise of jurisdiction. Accordingly, the impugned order is vulnerable, To set aside the order and remit the matter 10. back for reconsideration to the trial court is prejudicial to the wife and child. Accordingly, I considered the entire matter on merits since both parties have led evidence in the proceeding.
13. Father has the obligation to maintain the child. As guardian, he is to give education to the child. On the evidence of the daughter (DW 2) respondent sends Rs. 400/- to her for her food and education. Besides, he supplies clothings cosmetics and tution fees for the daughter. Since mother of respondent was alive (now she is dead as intimated by learned counsel today) I can assume that in the average, the expenses of the daughter at Rs. 400/- is met by the respondent. For the other son, respondent spends about Rs. 125/- for education. Besides this he has his food also. Certificate of the Headmistress of the School where the child residing with mother reads is that the expenses for his education is monthly Rs. 300/-. Out of it an extra sum of Rs. 150/- is charged for his tution. This is not proved to be compulsory. There is no evidence that the child is deficient for which additional tution would be necessary. Accordingly, I am inclined to hold that educational expenses of the child is Rs. 150/-. Respondent has not raised any objection to such education being given to the child. He has not moved for custody of the child in appropriate forum. Another sum of Rs. 150/- would be necessary for the child for his food, clothing and other health expenses. Father is to pay for the same. Therefore, till the child stays with his mother respondent is to pay Rs. 300/- (three hundred) monthly to the appellant unless the trial court on being moved modifies this amount.
14. As regards litigation expenses payable to the applicant, refusal of the game on the ground that she is getting legal aid is not a material consideration. This is an aid as a father or brother would be giving aid. Litigation expenses cannot be refused merely because others come forward to help the applicant. However, trial court shall consider the question afresh after giving opportunity to the parties of being heard taking into consideration the requirement of the wife to meet her lawyer, the sundry expenses for corning to Court, expenses for the witnesses and other liti gation expenses on each date of hearing, the fees payable to the Lawyer engaged or to be engaged by her, trial court may take note of the legal aid received by the wife for reducing the amount. The same cannot, however, be a ground to refuse the same entirely.
15. As regards her maintenance, it is to be examined if an amount of Rs. 300/- received by her as found by the trial court is sufficient to support her. She is a teacher in a Primary School. Her evidence that she pays house rent of Rs. 150/- per month is acceptable. Thus, the balance that remains is Rs. 650/-. Point out of it, her food in the minimum would come to Rs. 300/- per month. Thus, only Rs. 350/- remains as a balance when husband spends Rs. 100/- for commuting the distance to the place of work, the same would be the amount for her commuting the distance to the school. Expenditure of Rs. 60/- in the average for her health would not be unreasonable. Being a lady and a teacher, she is required to be properly dressed. It is not uncommon that a Hindu wife preforms religious ceremonies throughout the year for benefit of family and children. Some expenses would be necessary on that head. Thus, in absence of better materials, I am inclined to hold that Rs. 50/- (fifty) per month more would be required by her for her maintenance. This is to be paid by the respondent.
16. Respondent is an employee. Payment of huge amount of arrear maintenance would completely destroy the back bone of the respondent. He has a son and daughter to maintain. The daughter was about 14 years when she was giving deposition. After two years from now arrangement are to be made for her marriage. Taking into consideration all these aspects of the matter, I direct that towards arrears respondent shall make a fixed deposit of Rs. 2,000/- (two thousand) in the case of the minor sou which would discharge the liability for arrears. From the month of January, 1990 respondent shall pay a maintenance of Rs. 350/- (three hundred fifty) to the appellant towards her own maintenance and the maintenance of the child with her, until the order is modified by the trial court for just reasons. Trial court shall reconsider the question of litigation expenses. Fixed deposit shall be made within two months from today. Monthly interim maintenance shall be deposited in or before the last week of the month for which maintenance is to be paid.
17. In the result, appeal is dismissed and suo motu revision is allowed as indicated in the order. No costs.