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IN THE HIGH COURT OF ALLAHABAD
CHANDRA KUMAR RAI, J.
Sarnam Singh Lekhpal Chakbandi – Appellant
Versus
Preetam Kumari and Another - Respondent
Second Appeal No.1087 of 2015
Decided On : 05-04-2023
Hindu Marriage Act, 1955 - Section 9, 25 – Code of Civil Procedure, 1908 - Order 41 Rule 31 - Second appeal - Permanent alimony - Order for maintenance - Appeal filed against judgment and decree by which permanent alimony has been granted to defendant/respondent no.1 against plaintiff – There was no occasion to order for maintenance/permanent alimony in favour of respondent while dismissing appeal filed by respondent. [Para 15]
Finding of the Court: Grant of maintenance under Section 25 of Hindu Marriage Act in favour of Preetam Kumari when marriage has been declared null and void by trial court, cannot be maintained in eye of law - Suit for declaring marriage as null and void, has been decreed by trial court and decree has been affirmed in first appeal, as such, first appellate court has committed illegality in passing order for maintenance under Section 25 of Hindu Marriage Act - It is also material that finding of trial court has been maintained in appeal, as such, there was no occasion to grant maintenance under Section 25 of Hindu Marriage Act in favour of respondent coupled with fact that there was no application under Section 25 of Hindu Marriage Act, 1955 in civil appeal by respondent-wife - In view of finding of fact recorded by trial court declaring marriage as void and ineffective, grant of maintenance under Section 25 of Hindu Marriage Act in favour of respondent is manifestly erroneous and illegal - Part of judgment and decree of lower appellate court by which maintenance has been granted by first appellate court is hereby set aside.
Result: Appeal allowed.
JUDGMENT :
(Chandra Kumar Rai, J.)
1. Heard Mr. Manoj Kumar Sharma and Smt. Krishna Singh, learned counsel for the appellant and Mr. Manoj Kumar Gupta, Advocate, holding brief of Mr. Mahesh Narain Singh, learned counsel for defendant-respondent no.1.
2. The instant second appeal has been filed against the part of the judgment and decree dated 17.10.2015, by which the permanent alimony has been granted to defendant/respondent no.1 (Preetam Kumari) against plaintiff-appellant (Sarnam Singh) in Civil Appeal No. 44/2010 and Civil Appeal No.45/2010, decided by a common judgment arising out of Original Suit No.257/1997.
3. Original Suit No.257/1997 has been filed by plaintiff-appellant (Sarnam Singh) for declaring the marriage as void and ineffective. Original Suit No.213 of 2003 was filed under Section 9 of the Hindu Marriage Act by defendant respondent no.1 (Preetam Kumari) for restitution of conjugal rights.
4. Plaint case of O.S. No.257 of 1997 in brief is that talk of marriage between the plaintiff and defendant has taken place but due to fraudulent act of the wife-Preetam Kumari and their family members, the mediation has taken place and the proposal of the marriage has come to an end but the father of the Preetam Kumari has illegally kidnapped the plaintiff (Sarnam Singh) and illegally solemnized the marriage which is not a legal marriage as prescribed under the Hindu Marriage Act. It is also mentioned in the plaint that there was no relation of husband and wife between them, as such, the alleged marriage be declared null and void. In the written statement, Preetam Kumari denied the plaint allegations and submitted that the valid marriage has taken place, as such, the suit for declaring the marriage null and void be dismissed. Plaint case of O.S. No.213 of 2003 in brief was that Preetam Kumari was married to Sarnam Singh according to the custom on 5/6.7.1997 but husband Sarnam Singh has deserted her, as such, the instant suit for restitution of conjugal rights has been filed by wife Preetam Kumari. In the written statement, husband Sarnam Singh denied the plaint allegations and stated that no valid marriage according to the Hindu Marriage Act has taken place between them, as such, the plaintiff is not entitled to the relief claimed in the suit for restitution of conjugal rights. It is also mentioned in the written statement that defendant has already filed a Suit No.257/1997 for declaring the marriage as null and void.
5. Both the aforementioned suits were consolidated and heard together. Parties filed oral and documentary evidence in support of their cases. The trial court vide judgment and decree dated 26.8.2010 decreed the Suit No.257/1997 and declared the marriage as null and void and dismissed the Suit No.213/2003 (Preetam Kumari vs. Sarnam Singh) filed for restitution of conjugal rights. Against the judgment and decree dated 26.8.2010, passed by the Civil Judge (S.D.), Etah, Preetam Kumari filed two civil appeal i.e. Civil Appeal No.44/2010 and Civil Appeal No.45/2010 in respect to Suit Nos. 213/2003 and 257/1997. Both the civil appeals were consolidated and heard together by the District Judge, Etah. The District Judge, Etah vide judgment and decree dated 17.10.2015 dismissed both the appeals but directed that respondent (Sarnam Singh) shall pay Rs.6500/-per month as maintenance and Rs.2 lacs to the appellant (Preetam Kumari) towards permanent alimony. Hence this second appeal on behalf of Sarnam Singh (plaintiff).
6. No second appeal has been filed by defendant Preetam Kumari before this Court.
7. This Court on 15.12.2015 admitted the second appeal after formulating the substantial questions of law and granted the interim order to the effect that half of the amount of the order of the maintenance granted by the 1st appellat
SupremeToday
Section 25 of Hindu Marriage Act is as permanent alimony and maintenance.
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