1. By way of this writ petition, the petitioner, who is defending a petition for dissolution of marriage as filed by her husband (respondent No.1), seeks to question the order dated 07.10.2010 whereby the Family Court No. 1, Jodhpur has rejected her application seeking interim order for accommodation in a residential house, said to be of the ownership of her husband.

2. The claim as made by the petitioner-wife against the respondent-husband for providing her accommodation in the residential house during the pendency of the petition for dissolution of marriage has been declined by the leaned Trial Court essentially with the observations that the petitioner was employed in Government service as a teacher and, for that reason, has not moved any application under Section 24 of the Hindu Marriage Act, 1955 (the Act of 1955). The learned Trial Court observed that the respondent-husband was also working as a teacher and when both the wife and husband were of equi-earning standing, the petitioner would not be entitled to make a claim for maintenance. The learned Trial Court further observed that even if the provision for residence be assumed to be an ingredient of maintenance, when the petitioner wife was not entitled to make a claim for maintenance itself, the application could not be granted in terms prayed for. The learned Trial Court also observed that the petitioner was posted at Government Upper Primary School, Mandyai Kalan via Tiwari, Panchayat Samiti Osiyan and did not accept the suggestion that she was residing permanently at Jodhpur.

3. Assailing the order aforesaid, the learned counsel for the petitioner has strenuously argued that the provision for residence is very much included in the right of maintenance and for that matter, has referred to the decision of the Honble Supreme Court in the case of Komalam Amma v. Kumara Pillai Raghavan Pillai & Ors., 2009 DNJ (SC) 85. The learned counsel further submitted that the facts regarding petitioners transfer to Jodhpur and her posting at Government Primary School, Basni Lachha, Mandore were placed before the Trial Court but did not receive due consideration.

4. After having given a thoughtful consideration to the submissions made and after having examined the material placed on record, this Court is not persuaded to entertain this writ petition.

5. So far the petitioners place of posting is concerned, it appears that the order of her transfer to Government Primary School, Basni Lachha, Mandore was issued on 30.09.2010 (Annex. 4) whereas the application seeking residence had been moved by her before the Trial Court on 21.11.2009. The consideration of the learned Trial Court in its impugned order dated 07.10.2010 regarding the place of posting appears to have been with reference to the suggestions made before it. In any case, even if it be assumed that the petitioner has now been posted at Jodhpur, this fact, by itself, does not provide her the right to claim residence as an interim measure during pendency of the proceedings in the application for dissolution of marriage.

6. Admittedly, the petition filed under Section 13 of the Act of 1955 seeking dissolution of marriage is pending. While defending the said petition, the petitioner-wife could have claimed maintenance pendente lite and litigation expenses, but only as per Section 24 of the Act of 1955; and thereunder, such an order for maintenance pendente lite and litigation expenses could have been passed upon the petitioner establishing the basic fact that she had no source of income sufficient for her support and for necessary litigation expenses. What has been found in this case, and that remains an indisputable position, that the petitioner-wife is very much engaged in a Government job and is working as a teacher. The respondent husband is also engaged in the same nature job and is working as a teacher. It cannot be said that the petitioner has no independent income sufficient for her support and for meeting with the litigation expenses. The present one has clearly been a case where the petitioner is not having the right to claim maintenance pendente lite before the Family Court per Section 24 of the Act of 1955. When the petitioner is not having the right to claim maintenance during the pendency of the proceedings, the submission as sought to be made on her behalf that maintenance would include a provision for residence does not enure to her benefit in the claim, during pendency of the proceedings, for residence in one of the house properties said to be belonging to her husband.

7. The decision of the Honble Supreme Court in Komalam Amma (supra) had not been a case in relation to the application under Section 24 ibid or a claim for residence during pendency of the proceedings under the Act of 1955. In fact, it had been a case of civil suit filed by the husband for declaration of title in respect of the property where the defendants (wife and children of the plaintiff) were residing and for recovery of possession with mesne profits. The stand of the defendants, inter alia, had been that the wife of the plaintiff was entitled to reside in the matrimonial house and it was also pointed out that she had already obtained a charged decree for maintenance over the property in question. The Trial Court and the First Appellate Court decreed the suit and the High Court was also of the view that even if the wife had obtained a decree for maintenance against the husband, the decree passed in the case for recovery of possession did not, in any way, defeat her right to enforce the charge. The High Court further observed that when the relationship between the parties were estranged, the wife could not claim a right of residence in the matrimonial house so as to resist a decree for possession. The Honble Supreme Court did not approve of the order so passed by the High Court while expounding the principles relating to the right of maintenance and while pointing out that the maintenance is given so that the lady could live in the manner more or less to which she was accustomed. The concept of maintenance must, the Honble Supreme Court held, include the provision for food and clothing and take into account the basic need of a roof over the head. The Honble Supreme Court observed that the provision for residence may be made either by giving a lump sum in money, or property in lieu thereof; or by providing, for the course of the ladys life, a residence and money for other necessary expenditure. The Honble Supreme Court further referred to the principles governing the right of maintenance with reference to the decisions in Mangat Mal (Dead) & Anr. v. Punni Devi (Dead) & Ors., (1995) 6 SCC 88 [LQ/SC/1995/892] and B.P.Achala Anand v. S. Appi Reddy & Anr., 2005 (2) SCALE 105 [LQ/SC/2005/173 ;] and ordered re-consideration of the appeal by the High Court.

8. For the basic difference of the fact situation and the nature of proceedings, the principles enunciated by the Honble Supreme Court in the cited case of Komalam Amma do not make out a case for an order in favour of the petitioner in the present matter for providing her residence during the pendency of the petition before the Family Court.

9. In view of the aforesaid, the learned Trial Court does not appear to have committed any jurisdictional error in rejecting the prayer made by the petitioner.

10. Hence, this petition is required to be, and, is hereby dismissed.

11. However, in the interest of justice, it is made clear that the observations aforesaid are confined only towards consideration of the prayer as made by the petitioner for providing her residence during the pendency of the petition before the Family Court and not beyond. In other words, this order shall have no bearing on the rights of the parties either way at the time of final decision of the matter by the Family Court.

Appeal dismissed.