The wife is entitled to maintenance pendente lite under section 24 of the Hindu Marriage Act, 1955, even if the validity of the marriage is disputed.

( 1 ) THIS first appeal from order has been filed by the wife against the order of the Subordinate Judge, I Class, Delhi, dated 3rd September, 1975, by which he has declined to grant maintenance to the appellant wife under section 24 of the Hindu Marriage Act, 25 of 1955, (hereinafter REFERRED TO as the Act ), till the decision of the legality of the marriage of the appellant with the respondent.

( 2 ). The material facts of the case are that the appellant, who is said to be a Bengali lady, was first married on 7th March, 1944 to a Kashmiri gentleman, by name Dr. B. N. Zutshi, from whom she had children. On 18th November, 1968 that marriage was annulled by a decree for divorce granted by the District Judge at Jaipur. There is no dispute between the parties with regard to these facts. It is also not disputed that thereafter, sometime in 1969 the appellant and the respondent were married and they cohabited and lived as husband and wife for a long period until 27th February, 1974. The appellant thereafter instituted a petition under section 10 of the Act for judicial separation on the ground of cruelty. During the pendency of the petition she applied to the court below for grant of maintenance pendente lite and expenses for litigation.

( 3 ). The defence of the respondent husband is that the marriage between the parties to this appeal took place on 25th July, 1969 and not on 25th November, 1969 as alleged by the appellant and so the marriage in dispute having been performed before the expiry of one year from the previous divorce was void under section 15 of the Act and as such the appellant is not a legally wedded wife of the respondent and is not entitled to grant of maintenance The court below has declined to grant the application unless and until the issue with regard to validity of the marriage was decided. Feeling aggrieved, the appellant wife has filed the appeal in this court. I have heard Mr. R. K. Maheshwari in support of the appeal and Mr. M. G. Gupta on behalf of the respondent, and have perused the record of the case.

( 4 ). The appellant before me clearly stated in paragraph 2 of the petition that she had been married to the respondent on 25th November, 1969 at Delhi after the dissolution of the previous marriage. The respondent on the other hand, averred that his marriage with the appellant took place on 25th July, 1969 at Delhi at the house of his cousin and the marriage was solemnised according to Anand Karaj. He has further contended that he has been misled by the appellant into having the marriage within one year of the previous divorce and the marriage with him was, therefore, null and void, and as she was not a legally wedded wife, she was not entitled to any maintenance. The allegations made in the petition under section 24 by the appellant as well as by those made by the respondent in the reply to the said petition on this point are substantially identical. The factum of the marriage is admitted; what is disputed is a question of fact with regard to the date of marriage and its legal effect.

( 5 ). The question which arises for consideration and decision in the main petition is whether the marriage in dispute between the appellant and the respondent was performed on 25th November, 1969 as alleged by the appellant or on 25th July, 1969 as alleged by the respondent and on this finding, the legality and validity of the marriage taking place after the first divorce on 18th November, 1968 is to be determined. The court below has REFERRED TO Bamshidhar Jha v. Chhabi Chatterjee, Naurang Singh Chuni Singh v. Sapla Devi, and Uma Charan Roy v. Kajal Roy", and the said authorities have been cited before me as well. These authorities deal with the question whether the marriage performed within one year of the degree of divorce in contravention of the proviso to section 15 of the Act is or not a nullity in view of clause (i) of section 5 and section 11 of the Act and whether a wife married in contraventi