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2015 DIGILAW 2303 (PNJ)

KIRTI KHANNA v. DEEPAK VERMA

2015-12-15

KULDIP SINGH

body2015
JUDGMENT : Kuldip Singh, J. Impugned in the present revision is the order dated 28.8.2014 (Annexure P1), passed by the learned Additional District Judge, Amritsar, vide which, in a petition under Sections 11 and 12 of the Hindu Marriage Act, 1955 (in short, 'the Act'), filed by the husband for declaring the marriage null and void, an application filed by the wife under Section 24 of the Act for grant of maintenance pendente lite was dismissed. 2. According to the husband, he married Kirti Khanna on 9.6.2010 at Amritsar according to Hindu rites and ceremonies. Satish Khanna and Pardeep Khanna, who are close relatives of the wife were the mediators. After solemnization of the marriage, both the parties cohabited with each other as husband and wife and stayed together for 15-20 days. It is alleged that after 10 days of the marriage, husband came to know that respondent wife was previously married with one Sanjeev Mehta, resident of Katra Sufaid, Gali Tehnian Wali, Amritsar and that the said marriage has not been got legally dissolved by her before her marriage with the petitioner husband (respondent herein). 3. On the other hand stand of the respondent-wife (petitioner herein) is that her first marriage with said Sanjeev Mehta was lawfully dissolved by mutual writing dated 31.3.2010 and that the petitioner respondent herein was having knowledge of the same. 4. I have heard learned counsel for the parties and have also carefully gone through the file. 5. Lower Court while dismissing the present application, while discussing the case law, made the following comments:- "In the present case also, it is averred that marriage of the petitioner-wife with her earlier husband was dissolved by a compromise by scribing a document dated 31.3.2010. There is no pleading with regard to detailed to custom, the existence of the custom, its continuous use in the community and the custom being not opposed to public policy and also being not unreasonable. As stated above, the fact that marriage could be dissolved in a customary mode is yet to be established. Once the marriage was not dissolved as per provision of law, it cannot be said that the petitioner-wife contacted a valid marriage with the present respondent." 6. I am of the view that in the present case, the wife claims that she was lawfully divorced with her previous husband vide writing dated 31.3.2010. Once the marriage was not dissolved as per provision of law, it cannot be said that the petitioner-wife contacted a valid marriage with the present respondent." 6. I am of the view that in the present case, the wife claims that she was lawfully divorced with her previous husband vide writing dated 31.3.2010. The petition is for declaring the marriage as void. 7. Therefore, the lower Court should have avoided making comments on the document which is the very basis of the case. The parties were yet to lead evidence and the Court is yet to determine whether the said writing dated 31.3.2010 amounts to customary divorce between the parties or not? Therefore, the case of the wife could not be prejudged at the stage of the decision on application under Section 24 of the Act. In this case, admittedly, the marriage was solemnised between the parties. The marriage was consummated and parties stayed together for 20-25 days. Therefore, the lower Court erred in out rightly dismissing the application holding that there was no valid marriage between the parties. 8. The learned counsel for the respondent husband has relied upon the authority in Navdeep Kaur v. Dilraj Singh, 2003 1 RCR(Civil) 365, and relied upon the following observations made by this Court:- "The principle laid down in Yamunabai's case (supra) if applied to the facts of the present case it follows that divorce by custom asserted by the wife-petitioner without substantiating the same cannot be accepted as a good ground for believing that her marriage with Harprit Singh was validly dissolved. In the absence of details of custom baldly alleged by the wife-petitioner. It is not even possible to examine the over-riding effect of clause (a) of Section 4 of the Act. The clause (a) of Section 4 of the Act, it is expressly provided that any custom or usage concerning Hindu Law in force immediately would cease to have effect with respect to any matter for which provision is made in the Act. For dissolution of marriage, Section 13 has been incorporated along with Section 11 read with Section 5 of the Act. Similarly the marriage of the husband-respondent with another lady in March 1996 was subsisting. Moreover under sub-section (a) of Section 3 of the Act a custom cannot be recognised unless bare averments are made showing the existence of custom and its continuous use in the community/tribe. Similarly the marriage of the husband-respondent with another lady in March 1996 was subsisting. Moreover under sub-section (a) of Section 3 of the Act a custom cannot be recognised unless bare averments are made showing the existence of custom and its continuous use in the community/tribe. It is further required to be shown that the custom relied upon by the wife-petitioner is not opposed to public policy and is not unreasonable. There is not even an averment showing the existence of custom or its continuation. Therefore, the bare minimum requirement of sub-section (a) of Section 3 of the Act has not been fulfilled." 9. The perusal of the aforesaid authority shows that in the said case, vague allegations of customary divorce were levelled which were not substantiated. However, in the present case, there is a specific case of the wife that customary divorce took place between her and her husband on 31.3.2010 and that the petitioner husband knew about the same. The marriage between the parties was consummated. Therefore, the said authority is not attracted in the present case. As such, the impugned order has to be set aside. 10. It is stated on behalf of the husband-respondent that husband is a labourer with a jeweller being skilled worker. Even if it is admitted to be correct, the income of a skilled labourer working with a jeweller cannot be less than Rs. 15,000/- per month. In these circumstances, the wife is entitled to maintenance pendente lite @ Rs. 7500/- per month from the date of filing of application i.e. 17.9.2013 till the date of disposal of the petition. 11. The revision is accordingly allowed. 12. However, it is made clear that the petitioner shall be entitled to claim maintenance either under Section 24 of the Act or under Section 125 Cr.P.C. 13. The learned counsel for the revisionist-wife states that the wife will not claim maintenance in proceedings under Section 125 Cr.P.C. Therefore, if the maintenance is not paid under Section 125 Cr.P.C. or not claimed, the arrears of maintenance in the present case shall be paid within two months for the period from which the maintenance is allowed in the present case. However, the monthly maintenance shall be paid on or before 10th day of every month.