R.B.Mehrotra - (1.) HEARD Sri A. N. Tripathi and Sri S. C. Srivastava, learned counsel for the applicant.
(2.) THE present civil revision has been filed against the order of the Family Court, Jhansi dated 5.4.1996 under Section 115, C.P.C. By the impugned order, the Family Court has awarded a sum of Rs. 300 for maintenance from the date of the application and Rs. 1,500 towards litigation expenses under Section 24 of the Hindu Marriage Act to the wife. This revision has been moved by the husband. The impugned order states that present application has been filed by the applicant, Meena who was married to Shri Virendra Kumar Gupta, the present applicant in accordance with Hindu rites on 11.10.1989. The present applicant filed a suit for declaring the marriage to be void and on 26.9.1991 obtained an ex parte decree. Smt. Meena filed an application that she has no knowledge of the ex parte decree and she came to know of the ex parte decree only on 13.12.1994 and as such, she has moved an application on 15.12.1994 for setting aside the ex parte decree. During the pendency of the aforesaid restoration application, application under Section 24 of the Hindu Marriage Act has been filed. The said application has been decided by the impugned order. Learned counsel for the applicant has made following submissions in support of this revision : (1) On the date the application for restoration has been filed, no relationship of husband and wife existed between the applicant and the opposite party, as such, under Section 24 of the Hindu Marriage Act, no maintenance can be granted. It has been stressed by the learned counsel that unless the ex parte decree is set aside, the court has no jurisdiction to grant the maintenance, as the section requires, that the maintenance can be granted either to the husband or to the wife. The decree for divorce having not yet been set aside, no such relationship exists. On this ground, it has been submitted that the order is completely without jurisdiction and is liable to be interfered with under Section 115,C.P.C. (2) By the impugned order, the statement of the applicant's wife that she is not having any income has been accepted without any evidence. Mere bald statement made by the wife could not have been accepted unless there was material evidence to support the said statement. (3) There is no consideration regarding applicant's income, as such, without determining the applicant's income on some basis, awarding maintenance during the pendency of the litigation was without any authority of law and as such, is liable-to be interfered with. Learned counsel has also submitted that there was no basis for determining the litigation expenses to Rs. 1,500, neither any basis as such has been disclosed. In the same connection, it has also been argued that the maintenance could not have been granted from the date of the application unless there was a further finding that the applicant was not having any income from the date of the application.
(3.) THE present revision has been filed under Section 115, C.P.C. proviso added by Act of 1976 to C.P.C. under Section 115 mandates that the High Court shall not interfere in any order passed during the pendency of the suit or proceedings unless the order finally disposes of the suit or other proceedings, or the order, if allowed to stand, would occasion a failure of justice or cause irreparable injury to the party against whom it was made. Section 19 of the Family Court Act has taken care that no appeal is to be preferred against interlocutary order passed by the Family Court, as such, the present order is not appealable.;