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2025 Supreme(Online)(Bom) 160
HIGH COURT OF BOMBAY
SMT. M.S. JAWALKAR, J
RAJESH S/O SITARAM CHAVHAN – Appellant
Versus
PRATIBHA W/O RAJESH CHAVHAN – Respondent
WP/392/2024
Mr. A. M. Tirukh, Advocate for the Petitioner. Ms. Aarti Singh, Advocate (Appointed) for Respondent.
A spouse can claim interim maintenance during nullity proceedings if they lack independent income, reinforcing the principle of support despite claims of marriage invalidity.
Headnote:(A) Hindu Marriage Act, 1955 - Section 24 - Interim maintenance - Petition filed for declaring marriage null and void - Respondent entitled to interim maintenance despite petitioner's claim of nullity - Court emphasized that maintenance can be granted if the applicant has no independent income to support herself during proceedings. (Paras 8, 9, 12)
(B) Evidence Act, 1872 - Sections 41 and 42 - Relevancy of judgments - Final judgments in matrimonial jurisdiction are conclusive proof of legal character conferred, while other judgments are relevant but not conclusive. (Paras 10, 11)
Facts of the case:
The husband challenged the order granting interim maintenance of Rs.3,000/- per month to the wife, arguing that their marriage was null due to the wife's prior marriage. The lower court's decision was based on the wife's financial need. (Paras 3, 4)
Findings of Court:
The court upheld the interim maintenance order, stating that the wife is entitled to support during the proceedings, regardless of the petition for nullity. (Paras 8, 12)
Issues: The main issues were whether the respondent is entitled to interim maintenance despite the claim of nullity and the relevance of previous judgments in maintenance proceedings. (Paras 4, 12)
Ratio Decidendi: The court ruled that the respondent is entitled to interim maintenance under Section 24 of the HM Act, emphasizing that the proceedings for nullity do not negate the right to maintenance if the applicant lacks independent income. (Paras 8, 9)
Result: Writ Petition dismissed with costs of Rs.5,000/- to be paid to the respondent.
1. Rule. Rule made returnable forthwith. Heard finally with the consent of the learned counsel appearing for the parties.
2. The present petition is filed by the husband challenging the order dated 13.10.2023, passed in Hindu Marriage Petition No.64/2019 by the Civil Judge, Senior Division, Khamgaon, below Exhibit-20 the application under Section 24 of the Hindu Marriage Act, 1955 (for the sake of brevity “HM Act”).
3. The petitioner filed Hindu Marriage Petition No.64/2019 against the respondent wife for declaring their alleged marriage dated 08.01.2013 as null and void, since the earlier marriage of respondent with one Ganesh Rathod was in existence on the date of their marriage. On 01.09.2022, the respondent filed an application under Section 24 of the HM Act for interim maintenance below Exhibit-20 and prayed for maintenance of Rs.10,000/- per month. The petitioner filed his reply to the application under Section 24 of the HM Act. It is his contention in reply that the complaint filed under the Protection of Women from Domestic Violence Act, 2025 (for the sake of brevity “PWDV Act”) No.31/2021, which came to be dismissed by the learned Judicial Magistrate, First Class, Jamner. Similarly, Misc. Criminal Application No.157/2021 filed by the respondent under Section 125 of the Code of Criminal Procedure, 1973 (for the sake of brevity “Cr.P.C.) also came to be dismissed on the ground that the respondent is not the legally wedded wife of the petitioner since her earlier marriage had not been dissolved by decree of divorce.
4. The learned Trial Court partly allowed the application filed under Section 24 of the HM Act and granted interim maintenance of Rs.3,000/- per month along with payment of Rs.1,000/- towards the costs of application. It is contended that this order came to be passed without considering the Judgments and Orders passed in proceedings under the PWDV Act and under Section 125 of the Cr.P.C. on the ground that respondent is not legally wedded wife of the petitioner. It is submitted that learned lower Court ought to have rejected the application for interim maintenance and costs of litigation.
5. The learned Counsel for the petitioner relied on the Judgment passed by the Hon’ble Apex Court in the case of K. G. Premshankar Vs. Inspector of Police and Anr., reported in (2002) 8 SCC 87.
6. In reply, the learned Counsel for the respondent submitted that there is no error or perversity in the order granting interim maintenance and it needs no interference.
7. I have heard the learned Counsel for the petitioner and learned Counsel for the respondent. Perused the impugned order and documents on record as well as considered citation relied on. For the sake of convenience, Section 24 of the HM Act is reproduced as under :
“24. Maintenance pendente lite and expenses of proceedings.—Where in any proceeding under this Act it appears to the Court that either the wife or the husband, as the case may be, has no independent income sufficient for her or his support and the necessary expenses of the proceeding, it may, on the application of the wife or the husband, order the respondent to pay to the petitioner the expenses of the proceeding, and monthly during the proceeding such sum as, having regard to the petitioner’s own income and the income of the respondent, it may seem to the Court to be reasonable.
[Provided that the application for the payment of the expenses of the proceeding and such monthly sum during the proceeding, shall, as far as possible, be disposed of within sixty days from the date of service of notice on the wife or the husband, as the case may be.]”
8. On perusal of Section 24 of the HM Act, it is clear that either wife or husband has no source of income and they are unable to proceed with the matter due to their economic condition, the Court can pass the order of maintenance and the expenses of the proceeding. The basic ground raised by the petitioner herein and before the learned Trial Court also is the sa
