- (1.) THIS petition is directed against the order of the trial Court dated 27. 3. 1990 whereby the prayer of the respondent made under Sec. 24 of the Hindu Marriage Act for the grant of interim maintenence for her and her son from the loins of her former husband was accepted and the petitioner was directed to pay it at the rate of Rs. 1,000 p. m. i. e. Rs. 700 p. m. for the respondent and Rs. 300 p. m. for the son, Tinku born from the loins of Jaswant Singh, late elder brother of the petitioner.
(2.) THE back drop of the case is that the respondent filed an application under Section 9 of the Hindu Marriage Act claiming restitution of conjugal rights on the plea that her late husband Jaswant Singh, elder brother of the present petitioner to whom she was married died in a road accident and Tinku was born to them on 12. 12. 1981. According to her stand she was married to the petitioner on 16. 1. 1983 i. e. just ten days after the death of her former husband, by way of Kreva ceremony. Though this factum of marriage between the petitioner and the respondent was seriously disputed by the petitioner before the trial Court, yet the Court has chosen to pass the order in question merely by observing that: "there is no ground to disbelieve the petitioner (now respondent) at this stage. " Strange as it may appear, the said Court had earlier recorded a finding in its order dated 29. 5. 1989 in an application filed by the respondent under Order 39, Rules 1 and 2 read with Section 15l of Civil Procedure Code for restraining the respondent (now petitioner) from re-marrying during the pendency of her petition under Section 9 of the Hindu Marriage Act. This is how the Court concluded the question of marriage between the parties is that order : "in these circumstances, there is no evidence at this stage of the case, from where i be considered that a prima facie case exists in favour of the petitioner for the issuance of the ad-interim injunction. For deciding an application for ad-interim injunction, the evidence available at that time i. e. at the time of arguments is to be taken into consideration. Simply stating that the respondent was married with the petitioner without any proof except an affidavit and when that affidavit has been countered by the respondent, by filing another affidavit, is no evidence in favour of the petitioner. The respondent has alleged that he never married to the petitioner and if ultimately, it is found that the petitioner was married through kareva form of marriage with the respondent, the respondent in that eventuality can be prosecuted under the law. In the absence of any evidence at this stage of the case, no relief of temporary injunction can be granted. " As per the stand of the learned Counsel for the petitioner, this conclusion of the trial Court remained undisturbed in appeal and revision which were preferred against this order dated 29. 5. 1989.
(3.) IN the light of this, it appears difficult to reconcile the two contradictory conclusions of the Court as noticed above. The fact remains that the respondent placed no material before the trial Court to prove even prima facie her marriage with the petitioner. On the contrary, learned Counsel for the petitioner produced before me photo copy of the duly sworn affidavit of the respondent dated 28. 9. 1988 filed for purposes of transfer of the telephone connection in her name from that of her late husband Jaswant Singh in which she had claimed herself to be widow of Jaswant Singh. He has also produced before me copy of the statement made by the respondent before the Motor Accidents Claims Tribunal on 19. 2. 1985 whereby she claimed the compensation as widow of Jaswant Singh. The learned Counsel has again produced before me a copy of the plaint of Civil Suit No. 170 dated 10-9-1983 pending in the Court of Sub-Judge 1st Class, Chandigarh, wherein the respondent has asserted her claim to the allotment of an industrial plot for which an application had been made by her late husband Jaswant Singh. In any case it has not been pointed out by the trial Court anywhere as to how Tinku, son of respondent from her former husband Jaswant Singh is entitled to any maintenance from the petitioner.;