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2020 DIGILAW 30 (ORI)

Bipasha v. Amitava Basu

2020-01-29

A.K.MISHRA, S.K.MISHRA

body2020
JUDGMENT : 1. This is an application under Sec. 24 of the Hindu Marriage Act, 1955 (hereinafter referred to as ‘the Act’ in brevity) filed by the petitioner-wife. 2. The facts hovering in the backdrop may be recapitulated thus:— The petitioner-wife married opposite party on 11.03.2011 as per the Hindu rites and customs. It was an arranged marriage. On 26.03.2011 during fourth-night the husband detected burn injury from belly to the knee of the wife and the marriage was not consummated. On 28.03.2011 the wife was left to stay in her father's house. Since then both of them have been staying separately. The husband filed C.P. No. 82 of 2011 to declare the said marriage nullity under Section 12(1)(c) of the Act on the ground that his consent was obtained by fraud as to burn injury concerning the wife. The petitioner-wife also filed C.P. No. 216 of 2011 under Section 9 of the Act for restitution of conjugal rights. Both the petitions were taken-up by the learned Judge, Family Court, Rourkela for hearing. Finally vide judgment dated 28.1.2016 the proceeding of the wife for restitution of conjugal rights was dismissed. The prayer of the husband was allowed and the marriage was declared null and void. The wife has filed this appeal assailing the decree of nullity. 3. In this appeal this petition under Section 24 of the Act is filed praying Rs. 10,000/- (Rupees ten thousand) per month for her maintenance on the ground that the petitioner is unable to maintain her-self as she has no income and the husband working in a company is getting Rs. 50,000/- (Rupees fifty thousand) per month. It is also averred that wife was allowed interim maintenance in the lower court @ Rs. 2000/- (Rupees two thousand) per month. 4. The opposite party-husband has filed objection contending that when the marriage is declared null and void, the wife is not entitled to for interim maintenance. Further he has no income as he has already out of service and is unemployed. The husband has also stated that the petitioner-wife being a qualified singer has been earning a good amount. 5. Mr. Pabitra Kumar Nayak, learned counsel for the petitioner-wife submitted that as the appeal is the continuation of the proceedings, the wife is entitled to interim maintenance as she is unable to maintain her-self. The husband has also stated that the petitioner-wife being a qualified singer has been earning a good amount. 5. Mr. Pabitra Kumar Nayak, learned counsel for the petitioner-wife submitted that as the appeal is the continuation of the proceedings, the wife is entitled to interim maintenance as she is unable to maintain her-self. He relied upon the decisions reported in (1) (2005) 2 SCC 33 : AIR 2005 SC 422 : Ramesh Chandra Rampratapji Daga v. Ramemshwari Ramesh Chandra Daga and (2) 2014 (3) KLJ 667 : T.K. Surendran v. P. Najima Bindu. 6. Mr. G. Mukharji, learned senior counsel for opposite party husband submitted that when the marriage is declared nullity on the ground of suppression of material fact, the wife is not entitled to maintain a petition under Section 24 of the Hindu Marriage Act and learned lower court has not allowed any alimony. Further the husband is not capable to give any interim maintenance as he has no source of income. He relied upon a decision reported in (2005) 3 SCC 636 : Savitaben Somabhai Bhatiya v. State of Gujarat. 7. Now descending to the point of law, it is found that the cited judgment in Sabitaben's case deals with the scope and ambit of Sec.125 of the Cr.P.C. and the Hon'ble Supreme Court held in the factual situation that the wife whose marriage is ab-initio null and void cannot claim maintenance under Section 125 Cr.P.C. The ratio decided therein is no way helpful to this proceeding under Section 24 of the Act. The judgment of Hon'ble Kerala High Court in T.K. Surendran's case also deals with the dispute under Section 125 of the Cr.P.C. Hon'ble Supreme Court in the decision of Smt. Chand Dhawan v. Jawaharlal Dhawan: reported in (1993) 3 SCC 406 has observed that:— “On the other hand, under the Hindu Marriage Act, in contrast, her claim for maintenance pendente lite is durated (sic) on the pendency of a litigation of the kind envisaged under sections 9 to 14 of the Hindu Marriage Act, and her claim to permanent maintenance is based on the supposition that either her marital status has been strained or affected by passing a decree for restitution of conjugal rights or judicial separation in favour or against her, or her marriage stands dissolved by a decree of nullity or divorce, with or without her consent. Thus when her marital status is to be affected or disrupted the court does so by passing a decree for or against her.” 8. In that judgment the Hon'ble Apex Court has also observed that an order of interim maintenance can be made at the outset without much contest. The above judgment of Chand Dhawan's case is reiterated in Ramesh Chandra Rampratapji Daga case (supra). In a decision reported in AIR 2004 Jharkhand 22 : Sandeep Kuar @ Bobby v. The State of Jharkhand, the Hon'ble Jharkhand High Court has expressed in the light of our view in the following words:— “6. So far as maintenance pendent lite and expenses of proceeding are concerned no distinction has been made under Section 24 of the Hindu Marriage Act relating to right of a wife for maintenance in case preferred under Sections 12 or 13 of the Hindu Marriage Act.” 9. An order of interim maintenance under Section 24 of the Act is not a final determination and does contemplate a summary enquiry. The provision clearly provides that the Court may order for maintenance pendent lite in any proceeding under the Act. The initial words of the section clearly encompass any proceeding including the proceeding under Section 12 of the Act. There is no ambiguity in the initial words covering “any proceeding under this Act.” No distinction has been made for claiming maintenance pendent lite in the proceedings between Sec. 12 or any other section of the Act. Such initial words being clear and unambiguous, no interpretation to exclude Sec.12 of the Act proceeding is attributable. It is not a slippery slope for the section read as a whole to admit exclusion as argued by the learned counsel for the opposite party. The claim of maintenance pendent lite is maintainable in this appeal where declaring the marriage null and void under Section 12 of the Act is assailed. 10. The petitioner-wife has stated about the income of her husband-opposite party as a service holder in the petition supported by an affidavit. She has also stated therein that she has no source of income. The objection of the husband is not supported by any affidavit. No documentary evidence is filed by either of the parties. It is not disputed that the petitioner-wife was getting Rs. She has also stated therein that she has no source of income. The objection of the husband is not supported by any affidavit. No documentary evidence is filed by either of the parties. It is not disputed that the petitioner-wife was getting Rs. 2000/- (Rupees two thousand) as interim maintenance during pendency of the proceeding before the learned Judge, Family Court, Rourkela. 11. The object of Sec. 24 of the Act is to ensure that a party to a proceeding does not suffer during the pendency of the proceeding by reason of poverty. Maintenance is not a charity, which is given by the husband to the wife. It is the duty of the husband to see that the wife does not starve and thereby become incapable to prosecute the appeal. Subsistence is a bare need and the husband during pendency of the appeal cannot escape from that responsibility. For the limited purpose of Section 24 of the Act, having carefully gone through the respective contentions and pleadings, we are of the considered view that the petitioner-wife has no source of income and the husband being an able bodied man is capable to earn minimum wages and thereby can spare Rs. 3000/- (Rupees three thousand) per month as interim maintenance. This factual finding is the outcome of the assessment of the respective claims made in their petition and argument advanced in absence of any document. 12. The proceedings in the appeal are the continuation of the proceedings of which decree is assailed. This Court is competent to make an order as an appellate court U/s.24 of the Act. The court exercises a wide discretion in the matter of granting alimony pendent lite, the said discretion is guided by sound principles. Having arrived at such conclusion, we feel it reasonable regards being had to the requirement of the wife and ability of the husband to allow a sum of Rs. 3000/- (Rupees three thousand) per month as maintenance pendent lite to be paid from date of filing of this petition. 13. In the result, the misc. case is allowed on contest without costs. The opposite party-husband is directed to pay a sum of Rs. 3000/- (Rupees three thousand) per month towards maintenance pendent lite to the petitioner-wife with effect from the date of filing of this petition i.e., 12.09.2016. 14. Accordingly, the Misc. Case is disposed of. 15. 13. In the result, the misc. case is allowed on contest without costs. The opposite party-husband is directed to pay a sum of Rs. 3000/- (Rupees three thousand) per month towards maintenance pendent lite to the petitioner-wife with effect from the date of filing of this petition i.e., 12.09.2016. 14. Accordingly, the Misc. Case is disposed of. 15. Urgent certified copy of this order be granted as per rules.