An able-bodied husband is presumed capable of earning sufficient money to maintain his wife, regardless of his current employment status, and has the legal and moral responsibility to provide for her minimum requirements.

Hazari, J.

1. This is an application under sec. 115 of the Code of Civil Procedure and is directed against Order No.8 dated 15th May, 1987 passed by the Additional District, Judge, Seventh Court, Alipore in Matrimonial Suit No. 13 of 1987.

2. The husband/Opposite Party No.1 filed an application under section 24(2) of the Special Marriage Act, 1954, inter alia, praying for a declaration that the registration of marriage dated 15.6.85 between the petitioner and the Opposite Party No. 1 is of no effect. The Matrimonial Suit was filed sometime in November, 1986. The petitioner wife filed an application under section 36 of the Special Marriage Act praying for maintenance pendente lite and also the litigation expenses of the proceedings. The wife-petitioner stated in the application that the husband was working with Batliboi & Co. and was deriving a monthly income of Rs. 1500/-. The husband/opposite party in the written objection stated that he was drawing only a sum of Rs. 400/- and that he has since left the service because of his ill-health and he was advised by the doctor to resign from service.

3. The learned Advocate for the Opposite Party No. 1 produces a letter which was alleged to have been submitted to Batliboi & Co. in the month of December, 1986 stating that he is unable to proceed with the employment of the said company.

4. The learned trial Court dismissed the application under section 36 of the Special Marriage Act, inter alia, holding that neither the wife nor the husband has any income and as such the said petition was not maintainable.

5. It is argued by Mr. Roy, the learned Advocate for the petitioner, that it is the bounden duty of the husband to maintain the wife. And since the admitted position is that the husband was working in Batliboi & Co. and was drawing a salary of Rs. 400/- per month and that the husband has not produced any document showing that he has left the service, it is submitted by Mr. Roy, the onus of proving that the husband has ceased to be an employee of the said company is one the husband and since the husband has failed to discharge the said onus, should be presumed that his service is continuing and he is drawing Rs.400/- per month. It is further argued by Mr. Roy that assuming the husband has no income, the court will consider what the husband may have earned be being an able-bodied person who is fit to work. Mr. Roy in this connection refers to a decision in (1) Chandu Parkash Bodh Raj v. Sm. Shila Rani Chander Prakash, AIR 1980 Punjab 174 Mr. Roy submits that being an able-bodied young man it should be presumed that he is capable of earning sufficient money so as to be able to maintain his wife. It is the duty of an able-bodied person to earn enough to discharge his legal obligation of maintaining his wife. It is submitted by Mr. Roy that it is a fit case where the wife should be awarded with some alimony pendente lite so as to maintain herself with food and clothing.

6. Mr. Sinha, the learned Advocate for the Opposite Party No.1, submits that the marriage is a void marriage as the case of the husband is that he signed certain papers without knowing the implications thereof and the marriage between the parties solemnised under the Special Marriage Act is of no effect. It is further submitted by him that since the husband is not working and has no income of his own, no order for alimony pendente lite should be passed against the husband. Mr. Sinha further submits that his client is being maintained by his father at present.

7. We have carefully considered the matter and we hold that whether the marriage is of no effect or not that will be decided in the suit and not at this stage when the only consideration for the court is to the merits of the application under section 36 of the Special Marriage Act. It is not the case of the husband that he is not an able-bodied man and he is not fit to work, but the only case of the husband is that he has ceased to be an employee of Batliboi & Co. B