Hon’ble Servesh Kumar Gupta, J.

The challenge herein is to the judgment and order passed by the Appellate Court on 24.02.2012 rendered by learned Additional Sessions Judge, Tehri Garhwal, whereby the petition filed by the petitioner in the Court of Chief Judicial Magistrate, Tehri Garhwal, praying the relief under the Protection of Women from Domestic Violence Act, 2005 (hereinafter will be referred to as the Act), was dismissed. The said petition was filed by the petitioner on 13.01.2009, with the prayer that her husband/private respondent should be directed to pay Rs.50,000/- per mensem to her and that he should also be restrained from alienating the property bearing no.C-8, Laxman Jhula Enclave, Tapovan, located within the territorial jurisdiction of Police Station Muni-Ki-Reti, District Tehri Garhwal, in any manner whatsoever. It was also prayed that the respondent/husband should be directed not to cause any damage to the said property.

2. The said petition was decreed by the learned Judicial Magistrate on 18.10.2011, thereby granting maintenance to the tune of Rs.5,000/- per month to the petitioner, whereas no relief was granted in respect of the house, as highlighted above.

3. The appeal was preferred by the private respondent–husband which met with the fate, as aforementioned. It is also pertinent to mention here that a cross-appeal was also filed by the petitioner because the relief sought by her regarding the house, in question, was denied by the Magistrate. But this time too, her relief was not accorded by the Appellate Court. So, now the controversy is before this Court.

4. Having heard the rival contentions put forth by learned counsel for the parties, in brief, the facts of the case are that respondent-husband allegedly came in contact with the petitioner as a patient, whereas the lady was in the nursing services. Somehow, the courtship developed between the two and they settled to augment their relations by way of entering into the marriage. Advancing the said settlement, petitioner and the private respondent solemnized their marriage by way of exchange of garlands in front of some priest and close relatives of either party, as displayed in the photographs available on record. The marriage was got registered in the concerned office on 23.02.2008 through the application sent by registered post along with the requisite fee.

5. It transpires that somehow the private respondent-husband was sent to the gaol on 16.02.2008 and remained in caption till 28.08.2008. During this period of six and a half months, petitioner went to jail to arrange her meetings with her husband/private respondent. These meetings were several, as has been certified by the Jail Superintendent vide Annexure No.3 to the petition.

6. The rejoice of matrimonial life could not be prolonged any further and they started living separately. Petitioner continued her dwelling in the premises, as aforementioned, and launched the proceedings under the Act, as stated above.

7. It can significantly be noted that the husband-private respondent, before entering into the alleged wedlock with the petitioner, had a living spouse and did not seek any valid decree of divorce or annulment of marriage from his previous wife Ms. Sharda Devi. But the application sent to the Registrar for registration of marriage, under the signature of the duo, showed the private respondent as the divorcee, whereas the status of petitioner was adverted as a widow.

8. In this backdrop, the contention of learned counsel for the private respondent is that since his client already had a living spouse, hence his marriage (if any), with the petitioner, was void, as contemplated u/s 11 of the Hindu Marriage Act, and this way, she was not entitled to claim any maintenance from the husband-private respondent under the Act.

9. Learned counsel for the private respondent has vehemently relied upon the law laid down by the Hon’ble Apex Court in the case of ‘D. Velusamy v. D. Patchalammal’ rep