The application under S.36 is maintainable even in a petition filed under Ss.18 & 19 of the Indian Divorce Act, 1869.

K.K. Usha, J.

Challenge in this appeal is against the order passed by the learned Single Judge granting alimony pendente lite to the wife under S.36 of the Indian Divorce Act, 1869.O.P. (Div.) 10285/95 was filed by the husband under Ss.18 and 19 of the above Act for a declaration that the marriage between the petitioner and the respondent is null and void on the ground of fraud. Wife claimed alimony pendente lite at the rate of Rs. 1.500/- p.m. The claim was opposed by the husband contending that the application is not maintainable under S.36. Learned Single Judge did not accept the objection and granted the wife, interim alimony at the rate of Rs. 750/- p.m. Aggrieved by the above, husband has come up in appeal.

2. Mainly, two contentions are raised by learned counsel for the appellant. According to him, a petition for alimony pendente lite at the instance of the respondent in an application filed under S.18 and 19 of the Indian Divorce Act, 1869 is not maintainable.

3. S.36 of the Indian Divorce Act, 1869 reads as follows :

"36. Alimony pendente lite:- In any suit under this Act, whether it be instituted by a husband or a wife, and whether or not she has obtained an order of protection, the wife may present a petition for alimony pending the suit.

Such petition shall be served on the husband; and the court, on being satisfied of the truth of the statements therein contained, may make such order on the husband for payment to the wife of alimony pending the suit as it may deem just:

Provided that alimony pending the suit shall in no case exceed one-fifth of the husband's average net income for the three years next preceding the date of the order, and shall continue, in case of a decree for dissolution of marriage or of nullity of marriage, till the decree is made absolute or is confirmed, as the case may be."

Learned counsel for the appellant would submit that unlike in the case of a petition under S.10 for dissolution of marriage, if a petition under S.18 and 19 seeking a decree of nullity of marriage is allowed, the marriage is set at naught from the very beginning and if that be so, the respondent cannot be described as a wife at all. It is necessary that she should be a wife for the purpose of maintaining a petition under S.36. In the case of a petition under S.10 for dissolution of marriage, the marriage will be dissolved only from the date of the order and therefore, during the pendency of the proceedings, the respondent would be a wife coming under S.3 6. In this case, since the petition was filed under Ss.18 & 19 of the Indian Divorce Act, no application under S.36 could be maintained at the instance of the respondent.

4. Secondly, it was contended by the learned counsel for the appellant that the amount of interim alimony granted is excessive. In support of his first contention, reliance was placed on a decision of this Court in Amina v. Hassan Koya,1985 KLT 596. In the above case, parties were Muslims. The question that came up for consideration was whether a petition under S.125 of the Criminal P.C. was maintainable at the instance of a woman whose marriage was found invalid as she was pregnant when she contracted the marriage with the respondent. Trial court had awarded maintenance which was reversed by the District Court. On a revision by the petitioner, this Court took the view that she is not entitled to claim maintenance under S.125 Crl.P.C. as she would never become the wife of the respondent, if the marriage was not valid. In such case, she could never claim to be a woman who has been divorced by or has obtained a divorce from her husband because they were not, at any time, husband and wife.

5. We do not find any merit in both the contentions raised by the appellant. The answer to the first contention raised by the appellant regarding the maintainability of the petition by the respondent under S.36 is available in the provisions of the Section itself. Apart from giving the right to the wife to file an appl