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2020 Supreme(Ori) 119
IN THE HIGH COURT OF ORISSA AT CUTTACK
S.K. MISHRA, A.K. MISHRA, JJ.
Bipasha – Appellant
Versus
Amitava Basu – Respondent
MATA No. 18 of 2016, Misc. Case No. 150 of 2016
Decided on : 29-01-2020
The main legal point established in the judgment is that maintenance pendent lite is maintainable in an appeal where declaring the marriage null and void under Section 12 of the Hindu Marriage Act is assailed.
Headnote:
Sec. 24 - Hindu Marriage Act - 1955 - Summary of Acts and Sections: Sec. 24 of the Hindu Marriage Act - The court discussed the scope and ambit of Sec. 125 of the Cr.P.C. and held that the wife whose marriage is ab-initio null and void cannot claim maintenance under Section 125 Cr.P.C. The court also referred to the decision of Smt. Chand Dhawan v. Jawaharlal Dhawan and observed that the claim for maintenance pendente lite is durated on the pendency of a litigation under sections 9 to 14 of the Hindu Marriage Act. The court emphasized that an order of interim maintenance can be made at the outset without much contest. The court also highlighted that maintenance pendent lite is maintainable in an appeal where declaring the marriage null and void under Section 12 of the Act is assailed.
Fact of the Case:
The petitioner-wife filed an application under Sec. 24 of the Hindu Marriage Act, 1955 seeking maintenance during the pendency of her appeal against the decree of nullity of her marriage. The husband objected, claiming that the wife is not entitled to interim maintenance as the marriage was declared null and void, and he has no source of income.
Finding of the Court:
The court found that the petitioner-wife has no source of income and the husband is capable of earning minimum wages, thus ordering the husband to pay Rs. 3000 per month as maintenance pendent lite to the petitioner-wife from the date of filing the petition.
Issues: The main issue was whether the petitioner-wife is entitled to interim maintenance under Sec. 24 of the Hindu Marriage Act, considering the marriage was declared null and void and the husband's objection based on lack of income.
Ratio Decidendi: The court held that maintenance pendent lite is maintainable in an appeal where declaring the marriage null and void under Section 12 of the Act is assailed. The court emphasized the duty of the husband to ensure the wife's subsistence during the pendency of the appeal.
Final Decision: The court allowed the misc. case on contest without costs and directed the opposite party-husband to pay Rs. 3000 per month towards maintenance pendent lite to the petitioner-wife from the date of filing the petition.
JUDGMENT :
1. This is an application under Sec. 24 of the Hindu Marriage Act, 1955 (hereinafter referred to as ‘the Act’ in brevity) filed by the petitioner-wife.
2. The facts hovering in the backdrop may be recapitulated thus:—
The petitioner-wife married opposite party on 11.03.2011 as per the Hindu rites and customs. It was an arranged marriage. On 26.03.2011 during fourth-night the husband detected burn injury from belly to the knee of the wife and the marriage was not consummated. On 28.03.2011 the wife was left to stay in her father's house. Since then both of them have been staying separately. The husband filed C.P. No. 82 of 2011 to declare the said marriage nullity under Section 12(1)(c) of the Act on the ground that his consent was obtained by fraud as to burn injury concerning the wife. The petitioner-wife also filed C.P. No. 216 of 2011 under Section 9 of the Act for restitution of conjugal rights. Both the petitions were taken-up by the learned Judge, Family Court, Rourkela for hearing. Finally vide judgment dated 28.1.2016 the proceeding of the wife for restitution of conjugal rights was dismissed. The prayer of the husband was allowed and the marriage was declared null and void. The wife has filed this appeal assailing the decree of nullity.
3. In this appeal this petition under Section 24 of the Act is filed praying Rs. 10,000/- (Rupees ten thousand) per month for her maintenance on the ground that the petitioner is unable to maintain her-self as she has no income and the husband working in a company is getting Rs. 50,000/- (Rupees fifty thousand) per month. It is also averred that wife was allowed interim maintenance in the lower court @ Rs. 2000/- (Rupees two thousand) per month.
4. The opposite party-husband has filed objection contending that when the marriage is declared null and void, the wife is not entitled to for interim maintenance. Further he has no income as he has already out of service and is unemployed. The husband has also stated that the petitioner-wife being a qualified singer has been earning a good amount.
5. Mr. Pabitra Kumar Nayak, learned counsel for the petitioner-wife submitted that as the appeal is the continuation of the proceedings, the wife is entitled to interim maintenance as she is unable to maintain her-self. He relied upon the decisions reported in (1) (2005) 2 SCC 33 : AIR 2005 SC 422 : Ramesh Chandra Rampratapji Daga v. Ramemshwari Ramesh Chandra Daga and (2) 2014 (3) KLJ 667 : T.K. Surendran v. P. Najima Bindu.
6. Mr. G. Mukharji, learned senior counsel for opposite party husband submitted that when the marriage is declared nullity on the ground of suppression of material fact, the wife is not entitled to maintain a petition under Section 24 of the Hindu Marriage Act and learned lower court has not allowed any alimony. Further the husband is not capable to give any interim maintenance as he has no source of income. He relied upon a decision reported in (2005) 3 SCC 636 : Savitaben Somabhai Bhatiya v. State of Gujarat.
7. Now descending to the point of law, it is found that the cited judgment in Sabitaben's case deals with the scope and ambit of Sec.125 of the Cr.P.C. and the Hon'ble Supreme Court held in the factual situation that the wife whose marriage is ab-initio null and void cannot claim maintenance under Section 125 Cr.P.C. The ratio decided therein is no way helpful to this proceeding under Section 24 of the Act. The judgment of Hon'ble Kerala High Court in T.K. Surendran's case also deals with the dispute under Section 125 of the Cr.P.C. Hon'ble Supreme Court in the decision of Smt. Chand Dhawan v. Jawaharlal Dhawan: reported in (1993) 3 SCC 406 has observed that:—
“On the other hand, under the Hindu Marriage Act, in contrast, her claim for maintenance pendente lite is durated (sic) on the pendency of a litigation of the kind envisaged under sections 9 to 14 of the Hindu Marriage Act, and her claim to permanent maintenance is based on the supposition that either her marital
