The court established that divorce under customary law must be substantiated, and the definition of 'husband and wife' under the Act is crucial in determining entitlement to maintenance.

M.M. Kumar, J. - The question of law raised in this revision petition filed under Section 115 of the Code of Civil Procedure, 1908 (for brevity, the Code) is whether a wife divorced under the customary law is entitled to claim maintenance from her husband to whom she married subsequent to the divorce. The wife petitioner aggrieved by the order dated 14.5.2001 passed by the Additional District Judge, Amritsar declining her application under Section 24 of the Hindu Marriage Act, 1955 (for brevity, the Act) has approached this Court by filing the present revision petition.

2. Brief facts of the case which led to the filing of the present petition are that the wife petitioner filed an application under Section 11 of the Act being HMA No. 140 of 2000 against the husband-respondent levelling allegations that at the time of their marriage in March 1996 the husband-respondent has a spouse living at that time and, therefore, the marriage between the wife- petitioner and husband-respondent was a nullity. She has further stated in her application under Section 11 of the Act that one male child was born on 4.8.1999. The fact that husband-respondent had a spouse living at time of marriage came to the knowledge of wife-petitioner on 8.9.2000. It is further averred that divorce has been granted by dissolving that marriage only on 10.5.1999. Therefore, it has been alleged that the marriage between the wife- petitioner and the husband-respondent in March 1996 was in contravention of the provision of sub-section (1) of Section 5 of the Act.

3. In reply, the husband-respondent took the counter stand that as a matter of fact wife-petitioner was already married to one Harprit Singh and she never acquired the status of a legally wedded wife. Moreover, she has not been legally divorced from the aforementioned Harprit Singh. It was further alleged that her assertion in the application that she had taken divorce under custom from afore-mentioned Harprit Singh has not been substantiated. During the pendency of application under Section 11 of the Act wife-petitioner filed another application under Section 24 read with Section 25 of the Act seeking grant of maintenance pendente lite and litigation expenses. She has claimed that she would be entitled to maintenance at the rate of Rs. 5,000/- per month for herself and Rs. 3,000/- for her son because the husband-respondent is drawing a salary of Rs. 6,000/- as he is working in the Indian Army and also has 15 killas of land drawing an income of Rs. 3 lac per annum. The application has been dismissed by the Additional District Judge by recording the following findings :

"After hearing teamed counsel of the parties and after going through the record, I find that Navdeep Kaur petitioner has filed the petition under section 11 of H.M. Act for decree of nullity of marriage. In the first para of the petition it is written that marriage between the parties was solemnised after commencement of the Hindu Marriage Act. It is nowhere stated in the petition whether the marriage was solemnised as per Hindu Rites or Sikh Rites etc. Further in para No. 2 the petitioner herself given her statutes before the marriage divorcee by custom. Thus fact shows that petitioner was earlier married to some person from whom she has alleged to have taken divorce by custom. In para No. 4, it is stated that respondent had a spouse living at the time of marriage and petitioner came to know about this fact on 8.9.2000. In the written statement the respondent has denied the marriage and it is stated that petitioner was earlier married with Harpreet Singh s/o Harbans Sigh and marriage between the petitioner and Harpreet Singh was not dissolved by decree of divorce. On this point I find that after coming into force of Hindu Marriage Act divorce can be obtained from the Court only on grounds given in Hindu Marriage Act. The petitioner has alleged that she has taken the divorce by custom but there is no other particulars of customs Theref