BIPASHA Vs. AMITAVA
LAWS(ORI)-2020-1-29
HIGH COURT OF ORISSA
Decided on January 29,2020

Bipasha Appellant
VERSUS
Amitava Respondents

JUDGEMENT

- (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. 2-A. 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. 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. 2-B. Mr. Pabitra Kumar Nayak, learned counsel for the petitioner-wife submitted that as the appeal is thecontinuation 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) Ramesh Chandra Rampratapji Daga Vrs. Ramemshwari Ramesh Chandra Daga , 2005 AIR(SC) 422 and (2) T. K. Surendran Vrs. P. Najima Bindu , 2014 3 KerLJ 667. 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 Savitaben Somabhai Bhatiya Vrs. State of Gujarat and Ors , 2005 3 SCC 636.
(3.) 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 Vrs. Jawaharlal Dhawan , 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." 3-A. 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 : Sandeep Kuar @ Bobby Vrs. The State of Jharkhand and Anr. , 2004 AIR(Jhar) 22 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." 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. ;


Click here to view full judgement.
Copyright © Regent Computronics Pvt.Ltd.