A wife's claim for interim maintenance cannot be sustained in a pending suit for maintenance where the marital relationship has been judicially terminated and the burden lies on the wife to extricate herself from the bar of res judicata by proving want of territorial jurisdiction of the court passing the earlier decree and by establishing perpetration of fraud in the matter of obtaining the decree.

R. N. MISRA, J.

( 1 ) APPELLANT No. 2 Laxmidhar and appellant No. 3 Hira Dei are the parents of appellant No, 1. Appellant No. 4 is the subsequently married wife of appellant no. 1. The respondent applied to the court of the learned Subordinate Judge ,at keonjhar for permission to sue in forma pauperis the appellant No. 1 for maintenance and other reliefs claiming that appellant No. 1, her husband, has not been maintaining her. In the said pauper application, the appellants took the stand that the marriage has been long since dissolved by a decree of the court and, therefore, the respondent has no right of maintenance. Thereupon, the respondent filed the suit for a declaration that the decree for judicial separation and the subsequent decree for divorce had been obtained by fraud and were not binding on her and it be declared that she continues to be the wife of appellant No. 1 and appellant No. 4 is not his married wife and she further claimed for maintenance. In this suit, she applied for interim maintenance and the learned Subordinate Judge by his order dated 15th of april, 1975, directed appellant No, 1 to pay maintenance at the rate of rupees one hundred from the date of institution of the suit till the conclusion of the trial. Against this order, an appeal and a civil revision were carried to this Court. In both the matters notice of admission and hearing had been given. On 21st of january, 1976, in the Miscellaneous Appeal, our learned brother B. K. Ray, J. , passed the following order:-"although notice of admission and hearing had been given, having heard the learned counsel for both sides, I do not find any merit in this appeal which is accordingly dismissed. No costs. " the Civil Revision, however, remained undisposed of. Against the dismissal of the Miscellaneous Appeal, this Letters Patent Appeal has been carried. The Civil revision remained pending and both the Letters Patent Appeal as also the Civil revision were placed for admission before a Division Bench which admitted the appeal as also the Civil Revision.

( 2 ) MR. Murty does not press the revision application at the hearing and contends that the decision of the Letters Patent Appeal would completely meet the situation.

( 3 ) IN appeal, it is contended that the learned Subordinate Judge had no jurisdiction to make an order, of maintenance because Section 24 of the Hindu marriage Act had no application to the matter and until the decree for divorce was vacated, plaintiff was not entitled to any maintenance and the court had no jurisdiction to make an order in exercise of its inherent powers. Reliance is placed on a Bench decision of the Madras High Court in the case of Mahomed abdul Rahman v. Tajunnissa Begum, AIR 1953 Mad 420; a Single Judge decision of this Court in the case of K. Venkataratnam v. Kakinda Kamala, AIR 1960 Ori 157; and a Bench decision of the Andhra Pradesh High Court in the case of G. Appanna v. G. Seethamma, AIR 1972 Andh Pra 62. Mr. Mohanty for the plaintiff-respondent concedes that Section 24 of the Hindu Marriage Act has no application, but contends that the court had enough jurisdiction to make an order for interim maintenance and since the order has been made in exercise of sound judicial discretion no interference is called for. He relies on three decisions of the Calcutta High Court in Smt. Gouri v. Tarni, AIR 1968 Cal 305; nemai Chand v. Smt. Lila, AIR 1968 Cal 405; Tarini Gupta v. Sm. Gouri Gupta, air 1968 Cal 567; A decision of the Punjab High Court in the case of Durga Das v. Smt. Tara Rani, AIR 1971 Punj and Har 141 (FB); a decision of the Rajasthan High Court in the case of Nathulal v. Smt. Mana Devi, AIR 1971 Raj 208; a decision of the Madras High Court in the case of Deivasigamani Udayar v. Rajarani Ammal, AIR 1973 Mad 369 and a decision of the Karnataka High Court in the case of K. Shankare Gowda v. Smt. S. Bharathi, AIR 1975 Kant 17.

( 4 ) IT is not disputed that the plaintiff had married defendant No. 1 nor is the pos