DIPANKAR DATTA, J. - (1.) THE petitioner instituted a suit, in the Court of the learned District Judge at Barasat, 24 Parganas (N), praying for a decree declaring the marriage between him and the defendant (opposite party herein) as nullity under Section 24 read with Section 4(a) of the Special Marriage Act, 1954 (hereafter the SM Act). It was registered as Matrimonial Suit No. 1807 of 2006 and is pending for decision now before the learned Additional District Judge, Fast Track Court No. 2, Barrackpore, 24 Parganas (N).
(2.) IT is the plaint case that marriage of the petitioner with the opposite party was registered under the provisions of the SM Act on August 11, 1995 and that prior thereto, the opposite party while representing to the petitioner that she is virgin/unmarried suppressed the fact of her subsisting marriage with one Ranjit Roy (hereafter Ranjit). The petitioner claimed that her marriage with the opposite party is void ab initio since she had a spouse living on the date of registration of marriage and, accordingly, prayed for relief as noted above. The opposite party has been contesting the suit by filing a written statement. Perusal thereof reveals that the opposite party, after her father died in the year 1991, had approached the petitioner, a bank staff, who was looking after fixed deposits/savings account/locker etc. standing in the name of her deceased father, for effecting necessary changes so that she, along with her mother, could operate the same. The opposite party was married to Ranjit and a son was born in their wedlock but her conjugal life was full of disturbances and not a happy one. The petitioner, being fully aware of such marriage and the fact that the opposite party had a son, started expressing a strong desire to marry her, which she rejected forthwith because of her subsisting marriage. Two letters written by the petitioner to the opposite party were annexed to the written statement for the purpose of establishing her plea that it was the petitioner who made approaches towards her. However, while the opposite party stood by her firm decision not to give indulgence to the petitioner, he started paying regular visits and took more and more progressive view and gradually won her heart. According to her, the petitioner knowingly married her despite subsistence of her earlier marriage and assured her that there would be no -obstruction stands- (sic -objection from his side- ?) in this regard. The petitioner purchased a flat after registration of marriage and there they started living as husband and wife. However gradually, over a period of time, the petitioner developed a sort of animosity towards her and started treating her brutally, including beating her mercilessly. Ultimately, the petitioner left the said flat on October 24, 2005 leaving the opposite party to stay thereat all alone and has been threatening her to deliver quiet and vacant possession thereof failing which dire consequences would follow. It is alleged therein that the petitioner allured the opposite party to marry him despite being aware of her antecedents to rob her of her accumulated fortune and taking advantage of her simplicity committed acts of violence leaving an indelible scar on the most cherished possession of a woman, her chastity, thereby jeopardizing her reputation and lowering her esteem. In connection with the suit, the opposite party filed an application for alimony pendente lite under Section 36 of the Act. The petitioner contested the application by filing a written objection. He pleaded therein that the marriage between the opposite party and Ranjit was dissolved on August 31, 2001 and that since the marriage between the parties is void, she is not entitled to alimony pendente lite.
(3.) THE learned judge heard the parties. By order dated August 7, 2010, he allowed the application under Section 36 of the Act. According to him, whether or not the marriage of the opposite party with Ranjit was subsisting at the time marriage between the petitioner and the opposite party was registered is a question touching the merits of the matter and keeping in mind the settled law that issues which touch the merit of the suit should be avoided while dealing with an interlocutory matter, it was held that the point raised by the petitioner could not be decided at that stage and ought to be reserved for a decision at the stage of trial. A finding was also recorded that the opposite party has no source of earning and that marriage between the petitioner and the opposite party being an admitted fact, she was entitled to alimony pendente lite. THE petitioner was, accordingly, directed to pay Rs.5,000/- per month from the date of filing of the suit, month by month, and December 8, 2010 was fixed for peremptory hearing. This order is the subject matter of the challenge in the present revisional application under Article 227 of the Constitution. Mr. Maity, learned advocate for the petitioner contended that since the marriage between the parties is admittedly void, the learned judge acted illegally and with material irregularity in the exercise of his jurisdiction in directing payment of alimony pendente lite based on his finding that -from the attending facts and circumstances of the case and pleading of the parties it is admitted that respondent is the legally married wife of the petitioner and the said marriage is still subsisting-. It was contended that the learned judge approached the problem from a wrong angle and failed to pose the correct question for answer. According to him, -wife- referred to in Section 36 of the SM Act refers to a woman who is legally married in terms of the extant marriage laws of the country to a man; it does not include a woman whose marriage has been solemnized in contravention of such marriage laws and is, therefore, void. The marriage between the parties being void, he urged that there is no question of the Court awarding alimony pendente lite and the order of the learned judge being infected with jurisdictional error is liable to be set aside.;