The Wife in not entitled to separate alimony u/s 125 of cr.p.c. , if interim maintenance u/s 24 of HMA

Pallavi v/s Sachin | The Wife in not entitled to separate alimony u/s 125 of cr.p.c. , if interim maintenance u/s 24 of HMA

Pallavi v/s Sachin

    W.P. No. 6398 of 2011

    Decided On, 05 January 2012

    At, High Court of Madhya Pradesh

    By, THE HONOURABLE MR. JUSTICE N.K. MODY

    For the Petitioner: A.S. Rathore, Advocate. For the Respondent: C.R. Joshi, K.P. Pandey, Advocates.

Judgment

N.K. Mody, J:

1. Heard.

2. Being aggrieved by the order dated 21/4/2011 passed by Family Court, Indore in case No. 345/10 whereby the application filed by the petitioner for grant of interim maintenance was allowed in part and र1,500/- per month was awarded towards maintenance of the petitioner and her daughter @ र750/- each, the present petition has been filed.

3. Short facts of the case are that respondent filed a petition under section 11 of the Hindu Marriage Act 1955 with a prayer that marriage of the respondent with the petitioner which was solemnized on 16/6/2002 be declared as void. In the said petition an application was filed by the petitioner under section 24 of the Hindu Marriage Act for grant of interim maintenance alleging that out of wedlock which took place on 16/6/2002 petitioner delivered a baby Nitya on 23/2/2003. It was alleged that respondent has left the petitioner w.e.f. 12/2/2010. It was further alleged that respondent is in job and is earning र17,000/- per month, therefore application be allowed and maintenance be awarded. The application was not replied by the respondent, however was contested. After hearing the parties learned court below allowed the application in part and awarded र750/- for the petitioner and र750/- for her daughter, against which the present petition has been filed.

4. Learned counsel for petitioner argued at length and submits that amount awarded is grossly inadequate which deserves to be enhanced. Learned counsel submits that it was specifically alleged before the learned court below that respondent is earning र17,000/- per month which was not rebutted in writing by submitting the reply and counter affidavit but inspite of that learned court below committed error in awarding a meager sum of र1,500/- per month in which it is practically not possible for the petitioner to exist in such a small amount. It is submitted that petition filed by the petitioner be allowed and amount be enhanced.

5. Learned counsel for respondent submits that alleged marriage which was solemnized on 16/6/2002 itself is void as prior to the marriage with the respondent the petitioner was married on 20/9/95 with one Subhash and the petitioner also gave birth to a son namely Neeloy on 10/12/96. It is submitted that during subsistence of first marriage, the marriage was solemnized on 16/6/2002 of which respondent was having no knowledge. It is submitted that baby Nitya is also not the daughter of the respondent as she born before completion of period of 9 months after the marriage. Learned counsel submits that there is nothing on record to demonstrate that respondent is earning र17000/- per month. It is submitted that respondent is jobless, however it is admitted that respondent is having degree of M.A. in English Literature and is also prosecuting the course of B.Ed. Learned counsel submits that since marriage itself is nullity, therefore no order for grant of maintenance could have been passed. Reliance is placed on a decision in the matter of Smt. Yamunabai v. Anantrao Shivaram Adhav, 1988(1) R.C.R.(Criminal) 322 : AIR 1988 SC 644 wherein the Hon'ble Apex Court has observed that word "wife" means a legally wedded wife and marriage of woman with man having living spouse is nullity and she is not entitled for maintenance. It is submitted that petition be dismissed.

6. Facing to it, learned counsel for petitioner submits that petitioner was born on 19/4/79. The alleged date of first marriage is dated 20/9/95, at that time the petitioner was below the age of 15 years. Respondent knows the petitioner from her childhood. Learned counsel submits that infact the petitioner was kidnapped. It is submitted that petitioner and respondent are originally resident of Mandsaur and are residing in close vicinity. It is submitted that right from the beginning the fact that petitioner was kidnapped and married was in the knowledge of respondent. It is submitted that after the marriage with the respondent, divorce petition was filed by the petitioner 29/6/2002 for divorce from his first husband Subhash, in which consent decree was passed on 4/8/2003 of which the respondent was having full knowledge as the decree was obtained with the support of respondent. Learned counsel further submits that the photographs are on record to demonstrate that respondent was celebrating the birthday of Neeloy as the respondent was treating him as his son. It is submitted that respondent has lived together with the petitioner w.e.f. 16/6/02 to 12/2/2010. It is submitted that in the facts and circumstances of the case the contentions raised by the respondent cannot be accepted.

7. Section 11 of the Act lays down that a marriage solemnized shall be null and void and may, on a petition presented by either party thereto, be so declared by a decree of nullity if it contravenes any one of the conditions specified in clauses (i), (iv) and (v) of Section 5 of the Act. Section 5 lays down the conditions for a marriage according to which a marriage may be solemnized between any two Hindus, if neither party has a spouse living at the time of marriage.

8. From perusal of record it is evident that case is at the initial stage. The petition filed by the respondent for declaration of marriage as void has yet to be tried. It is surprising that respondent who is present in court submits that he is jobless. A person having degree of Masters in English Literature is doing nothing and sitting idle is difficult to accept. It is possible that respondent may earn less but he is doing nothing is unbelievable. Deliberately the respondent has not given the reply in writing before the learned court below where the income of the respondent was alleged as र17,000/- with full particulars of the job of respondent. Even if all the facts stated by the respondent are assumed to be true, then too daughter Nitya born out of wedlock dated 16/6/2002 of whom the whole responsibility is of the respondent. Respondent has lived together for a long period of 8 years. So far as the law laid down by the Apex Court in the matter of Smt. Yamunabai (supra) is concerned, facts of that case are not before this court, however it appears that at the time of filing of petition under section 125 Criminal Procedure Code in that case the first marriage of the woman was subsisting, while in the present case the facts are altogether different as in this case the consent decree of divorce has been passed long before on 4/8/2003 within 14 months of the present marriage for which contention of the petitioner is that the decree was obtained with the support of respondent. Undisputedly thereafter parties lived together for 7 long years. Apart from this the decision rendered by Supreme Court is pertaining to the proceedings under section 125 Criminal Procedure Code which relates to permanent maintenance while the present petition is filed for declaration of marriage as void which has yet to be decided on merits. In the present case the application of interim maintenance has already been allowed and the final decision has yet to take place. In view of this court, as long as the marriage is subsisting the liability cannot be avoided by the respondent. Keeping in view the hike in prices it is difficult to survive in a small amount of र750/- per month.

9. In the facts and circumstances of the case the petition filed by the petitioner is allowed. Keeping in view the income of respondent, the amoun