D. M. DHARMADHIKARI, J.

( 1 ) IN this revision under S. 115 of the Code of Civil Procedure, the wife raises an important legal question as to whether she can be denied maintenance pendenate lite under S. 24 of the Hindu Marriage Act, 1955 (in short 'the Act') only on the ground that her marriage with her husband is the second marriage during the subsistance of the first marriage and the same is void under S. 11 read with S. 5 (i) of the Act.

( 2 ) A few facts may be stated before deciding the legal question arising for decision in the case. The wife-applicant filed proceedings in the matrimonial Court for restitution of conjugal rights under S. 9 of the Act and during the pendency of those proceedings made an application for payment of maintenance pendente lite at the rate of Rs. 400/- per month as also a lump sum amount of Rs. 400/- as litigation charges. In the course of enquiry on the question of liability of the husband to pay interim maintenance, the wife stated orally in the witness box that she was married to the non-applicant-husband about 6-7 years back and has an issue from him. She also stated that her husband owns about 100-150 acres of land and has substantial means of earning. The husband / non-applicant opposed the application for interim maintenance denying the relationship with the applicant/wife. He examined one Rambai (N. A. W. 2) who stated that they were married 15-16 years ago and had a female issue by named Amita Bai.

( 3 ) ON the basis of above evidence led by the parties the matrimonial Court came to the conclusion that she was the second wife of the husband during the subsistance of her first marriage with Rambai and, therefore, the second marriage was void under S. 11 read with S. 5 (i) of the Act. According to the trial Court, the present applicant being the second wife under a void marriage is not entitled to any interim maintenance under S. 24 of the Act. The matrimonial Court also held that the wife did not file any revenue records to prove that the husband possessed 100 to 150 acres of land and there was, thus, also no proof that he had means to maintain the wife. The trial Court in rejecting the claim of the wife for interim maintenance referred to a decision in Smt. Rajeshbai v. Smt. Shantabai, AIR 1982 Bom 231 to hold that under the provisions of S. 24 of the Act only a legally wedded wife is entitled to claim interim maintenance.

( 4 ) LEARNED counsel appearing for the applicant/wife, contended before me that the matrimonial Court clearly erred in deciding on the merits of the case in refusing interim maintenance. It was pointed out to me that only the question required to be decided in the case was the factum or validity of marriage between the parties and the said question was not relevant for granting or denying interim maintenance to the wife during the pendency of the proceedings. On behalf of the wife it was submitted that for award on interim maintenance the Court is not required to decide the merits of the case even in a summary way and the scope of enquiry should be restricted to decide want of independent income to the applicant and the availability of means of income to the respondent for the purpose of fixing quantum of maintenance.

( 5 ) LEARNED counsel appearing for the husband, on the other hand, submitted that the expression 'wife' or 'husband' used in S. 24 of the act should reasonably be construed to mean legally wedded wife or husband. According to him, a wife under a second marriage which is void under the provisions of the Act has no right to claim maintenance. It was also contended on behalf of the husband it was proper on the part of the Court to hold a summary enquiry into the validity of marriage between the parties before granting or refusing maintenance. Any other interpretation according to the counsel would open flood gates to unscrupulous parties to approach the matrimonial Court on a false or made up case of a marriage against another party only to get orders of

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