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2000 DIGILAW 727 (PNJ)

Surinder Kapoor v. Sandhya Rani

2000-07-13

SWATANTER KUMAR

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JUDGMENT Swatanter Kumar, J. - Challenge in this revision is to the order dated 16.2.2000 passed by learned Additional District Judge, Ludhiana wherein the Court allowed application of the wife and the minor child under Section 24 of the Hindu Marriage Act and granted maintenance pendente lite at the rate of Rs. 600/- per month and also directed the husband to pay Rs. 3,000/- on account of litigation expenses. 2. According to Sandhya Rani she was married to Surinder Kapoor as per Hindu rites and their marriage was solemnised on 12.4.1992 at Ambala. From this marriage of the parties, minor girl child namely, Meenu was born. She claimed that she was unable to maintain herself and the minor child. She has been forced to live separately from her husband along with minor child. The husband earns more than Rs. 10,000/- per month and Rs. 6,000/- from contract work and Rs. 4,000/- from rental income from landed property. The applicant claims that she has no movable or immovable property and thus prayed for grant of maintenance pendente lite at the rate of Rs. 4,000/- per month and Rs. 10,000/- as litigation expenses by filing an application under Section 24 of the Hindu Marriage Act in a petition filed by the husband for decree of nullity under Section 11 of the Hindu Marriage Act. 3. This application was contested by the husband who stated that the wife was earning Rs. 5,000/- per month from tuition and stitching work etc. It was denied by the husband that he earns Rs. 10,000/- per month or has got any landed property. He claims to be working as a labourer and with great difficulty, is able to make his ends meet. According to the husband, he also has old parents to look after. The main plank of the submissions on behalf of the husband is that in a petition for dissolution of marriage on the ground of nullity, the provisions of Section 24 of the Hindu Marriage Act cannot be invoked. 4. In order to correctly appreciate the substance of these contentions, it is but necessary to note at the very outset that the husband has neither denied the factum of marriage nor the minor child Meenu being the legitimate child from this wedlock. 4. In order to correctly appreciate the substance of these contentions, it is but necessary to note at the very outset that the husband has neither denied the factum of marriage nor the minor child Meenu being the legitimate child from this wedlock. The wife has also stated that she was married to one Kishan Lal earlier but had obtained divorce before the present marriage was solemnised on 1.12.1991. 5. Once the factum of marriage and the legitimacy of the child from this wedlock is admitted, then the question in regard to earlier marriage and its effects on the subsequent marriage, more particularly, keeping in view the submissions made by wife that she had sought divorce from the first husband prior to the present marriage, has to be gone into and decided by the Court of competent jurisdiction keeping in view the evidence led by the parties after the complete trial of the petition. At this stage, it would be pre-mature to comment either way. During the course of hearing, it was stated before me that the learned Magistrate had also passed an order under Section 125 of the Criminal Procedure Code on 9.4.1997 granting maintenance to the applicants. Keeping in view the admitted case of the parties, the Court cannot pre-judge the issue whether the marriage is void, per se. If the learned trial Court ultimately holds that the previous marriage was not subsisting at the time of the second marriage and had been dissolved by a customary or other mode of dissolving the marriage, in that event, this petition is bound to fail. The learned counsel for the petitioner has heavily relied upon a judgment of a learned Single Judge of this Court in the case of Manjeet Singh v. Parson Kaur, 1990(2) PLR 97. This judgment is not of much assistance to the petitioner on facts. In that case, it was an admitted fact that at the time of the alleged marriage the wife was having a legally married spouse and as such, the marriage was void in that case. In the present case, the wife has specifically pleaded that she had, first, taken a divorce from the earlier husband prior to the second marriage. This basic fact would render the judgment cited by the petitioner inapplicable to the present case. 6. In the present case, the wife has specifically pleaded that she had, first, taken a divorce from the earlier husband prior to the second marriage. This basic fact would render the judgment cited by the petitioner inapplicable to the present case. 6. At this stage, it may also be appropriate to refer to the judgment of this Court in the case of Mohinder Pal Singh v. Manjit Kaur and another, 1996(1) RCC 207. 7. In view of the above position of law, now the question that falls for determination before the Court is - whether the maintenance granted vide impugned order is reasonable or not ? The applicants as well as the non- applicant have made allegations against each other. According to the wife, the husband earns Rs. 10,000/- per month while according to the husband the wife earns Rs. 5,000/- per month. None of them have furnished any document in support of their respective contentions. The learned trial Court, thus, proceeded on a rational basis while taking the income of the husband at least that of the labourer. This fact is not even disputed by the husband. Even if the husbands contention that he has to look after his parents is taken care of, even then the maintenance fixed by the trial Court of Rs. 600/- cannot be termed to be excessive or unreasonable. The amount of maintenance fixed by the Court below, obviously, is not in addition to the amount of maintenance fixed under Section 125 of the Criminal Procedure Code , but includes the same. The husband had a legal or moral obligation to maintain his wife and minor child more particularly, when the birth of the child from their wedlock is admitted. 8. For their reasons aforesaid, I see no reason to interfere in the impugned order as it does not suffer from any error of jurisdiction or otherwise. Resultantly, with the above clarifications, the revision is dismissed without any order as to costs Revision dismissed.