IMPORTANT POINT
Maintenance--Pendete-lite--At the interim stage, the court cannot come to a conclusion that marriage between the parties is a nullity and decline interim maintenance on that ground.

Rajesh Bindal J.:-Challenge in the present petition is to the order passed by the learned court below, whereby the application filed by the petitioner for grant of interim maintenance under Section 24 of the Hindu Marriage Act, 1955 (for short, ‘the Act’) was dismissed.

2. Briefly, the facts are that marriage between the parties was solemnised on 16.1.2005. A son was born out of the wedlock. However, as per the allegations made by the petitioner in the petition, she was turned out of the matrimonial home in May, 2006 at advanced stage of pregnancy. Subsequently, the respondent filed a petition on 7.11.2006 under Sections 11, 12, 13(1) i(a) and i(b) of the Act for declaring the marriage between the parties a nullity and/or divorce. During the pendency of the petition, the petitioner filed an application under Section 24 of the Act for grant of interim maintenance for her and also for the minor child. In the petition filed by the respondent for declaring the marriage a nullity or for divorce, a plea was taken that the petitioner was already married with one Manoj and on account of this fact, the petitioner was not entitled to grant of any maintenance from him.

3. Learned counsel for the petitioner submitted that the approach of the learned court below in declining the prayer made by the petitioner in the application under Section 24 of the Act is totally erroneous. The petitioner had married the respondent and they lived together as husband and wife for nearly one year and 4 months. A child was also born out of the wedlock on 2.10.2006. After she was shunted out from the matrimonial home in May, 2006, she has no means to maintain herself or the minor son. Till such time, the marriage between the parties is dissolved by a decree of the court, she is entitled to receive maintenance from the respondent. He further submitted that mere reliance on a statement recorded before the Women Cell was not sufficient to hold that the petitioner was already married as the evidence in the case is yet to be led. Even if that statement is considered, it was clearly mentioned therein that the petitioner at the time of marriage was a student of 8th class and she never remained in her in-laws house. The submission is that this mere fact could not be taken against the petitioner at the interim stage to deny her maintenance pendente lite. The court is yet to opine on the issue on merits after considering the evidence to be led by the parties. In fact, by declining the interim maintenance to the petitioner, the court has formed a final opinion on the merits in the petition filed by the respondent, which is totally uncalled for. Learned counsel placed reliance upon a judgment of Hon’ble the Supreme Court in Ramesh Chandra Rampratapji Daga v. Rameshwari Ramesh Chandra Daga, 2004 (10) JT 366, wherein it was held that even if a lady re-marries without divorce from her first marriage, the second marriage is illegal but not immoral and the court is competent to grant alimony to the wife at the time the second marriage is declared to be null and void. The submission is that once the court is competent to grant permanent alimony under Section 25 of the Act, there is no reason for denying the same to the petitioner at an interim stage. He further submitted that income of the respondent being Rs. 10,000/- per month, he being employed as Store Manager Brista Captaria, District Center, DLF, Gurgaon, the petitioner is entitled to maintenance @ Rs. 5,000/- per month for her maintenance and also for the minor child.

4. On the other hand, learned counsel for the respondent submitted that as the marriage between the parties was a nullity, the petitioner would not be entitled to any maintenance as Section 24 of the Act will not apply in case the marriage is illegal. Relying upon the statement made by the petitioner before the Women Cell, it was submitted that she herself admitted about her previous marriage. However, the fact that a child was born out of this we