D.S. Tewatia, J. - (1.) PETITIONER Ravi Kumar (hereinafter referred to as the husband) sought restitution of conjugal rights and for this purpose presented application under section 9 of the Hindu Marriage Act (hereinafter referred to as the Act) against Smt. Nirmal Devi respondent (hereinafter referred to as the respondent). In the written statement the respondent denied the factor of marriage altogether She, however made an application under section 24 of the Act for maintenance and litigation expenses. The matrimonial Court allowed Rs. 150/ - towards litigation expenses and Rs. 50/ - p.m. by way of maintenance. The husband paid the litigation expenses and the maintenance amount for the first month after the order was made. Thereafter he presented an application, requesting the Court that the order granting the maintenance pendente lite be modified as she was not entitled to any maintenance she having categorically taken a stand in the written statement that she had not married the petitioner husband and no marriage had taken place and therefore was not his wife. The matrimonial Court dismissed this application vide order dated March 23, 1974 and it is this order which has been impugned in this appeal.
(2.) THE Court below discussed the definitions of 'wife' and 'husband' appearing in section 24 of the Act at length with reference to so many judicial authorities and authoritative texts, but I do not know as to what avail, for in coming to the conclusion that no modification in the order granting maintenance was warranted. It observed that since the petitioner -husband had himself alleged in the petition that the responded was his wife, he could not wriggle out of that position and take up the stand that the respondent was not entitled to maintenance under section 24. In my opinion the Court below has clearly erred, for it may have been right in its conclusion if the maintenance to the husband or the wife in the event of proof of indigence was to follow as a matter of law without the indigent spouse asking for the maintenance, but where the order for the grant of maintenance is dependent upon an application being moved by the spouse who claims maintenance then the onus rests on the spouse who claims maintenance, first, to prove his or her status and then other ingredients of section 24 of the Act. In the present case since the respondent had denied the factum of marriage and her status as the wife of the petitioner husband, she could only claim litigation expenses and not maintenance, for she could not blow hot and cold in the same breath, that is, for the purpose of petition under section 9, denying that she is the wife of the petitioner -husband, but claiming maintenance under section 24 by asserting the contrary.
(3.) FOR the reasons stated, the appeal is allowed, so also the application for the modification of the order dated December 11, 1973 where by the matrimonial Court had granted maintenance, as also the litigation expense to the respondent. In the result, it is ordered that the respondent shall be entitled only to the litigation expenses and not the maintenance amount, and to the extent indicated, the order dated December 11, 1973, stands modified. There is no order as to costs.;