JUDGMENT [ENTITY], J.
(1) This first appeal from order has been filed by the wife against the order of the Subordinate Judge, I Class, Delhi, dated 3rd September, 1975, by which he has declined to grant maintenance to the appellant wife under [SECTION] of the [ACT], (hereinafter referred to as 'the Act'), till the decision of the legality of the marriage of the appellant with the respondent.
(2) The material facts of the case are that the appellant, who is said to be a Bengali lady, was first married on 7th March, 1944 to a Kashmiri gentleman, by name Dr. [ENTITY], from whom she had children. On 18th November, 1968 that marriage was annulled by a decree for divorce granted by the District Judge at Jaipur. There is no dispute between the parties with regard to these facts. It is also not disputed that thereafter, sometime in 1969 the appellant and the respondent were married and they cohabited and lived as husband and wife for a long period until 27th February, 1974. The appellant thereafter instituted a petition under [SECTION] of the Act for judicial separation on the ground of cruelty. During the pendency of the petition she applied to the court below for grant of maintenance pendente lite and expenses for litigation.
(3) The defense of the respondent husband is that the marriage between the parties to this appeal took place on 25th July, 1969 and not on 25th November, 1969 as alleged by the appellant and so the marriage in dispute having been performed before the expiry of one year from the previous divorce was void under [SECTION] of the Act and as such the appellant is not a legally wedded wife of the respondent and is not entitled to grant of maintenance The court below has declined to grant the application unless and until the issue with regard to validity of the marriage was decided. Feeling aggrieved, the appellant wife has filed the appeal in this court. I have heard Mr. [ENTITY] in support of the appeal and Mr. [ENTITY] on behalf of the respondent, and have perused the record of the case.
(4) The appellant before me clearly stated in paragraph 2 of the petition that she had been married to the respondent on 25th November, 1969 at Delhi after the dissolution of the previous marriage. The respondent on the other hand, averred that his marriage with the appellant took place on 25th July, 1969 at Delhi at the house of his cousin and the marriage was solemnised according to [ENTITY]. He has further contended that he has been misled by the appellant into having the marriage within one year of the previous divorce and the marriage with him was, therefore, null and void, and as she was not a legally wedded wife, she was not entitled to any maintenance. The allegations made in the petition under [SECTION] by the appellant as well as by those made by the respondent in the reply to the said petition on this point are substantially identical. The factum of the marriage is admitted; what is disputed is a question of fact with regard to the date of marriage and its legal effect.
(5) The question which arises for consideration and decision in the main petition is whether the marriage in dispute between the appellant and the respondent was performed on 25th November, 1969 as alleged by the appellant or on 25th July, 1969 as alleged by the respondent and on this finding, the legality and validity of the marriage taking place after the first divorce on 18th November, 1968 is to be determined. The court below has referred to [PRECEDENT], [PRECEDENT], and [PRECEDENT]", and the said authorities have been cited before me as well. These authorities deal with the question whether the marriage performed within one year of the degree of divorce in contravention of the proviso to [SECTION] of the Act is or not a nullity in view of [SECTION] and [SECTION] of the Act and whether a wife married in contravention of the statutory provision is or is not entitled to permanent maintenance. In my opinion, this is not the question which is germane to the point at issue arising before me. The legality and validity of the marriage and the allegations which are the foundations of the appellant's petition for judicial separation are mixed questions of law and fact which will be decided on the material placed before the court according to the provisions of law. I do not wish to express any opinion on the same. The court below has been unnecessarily influenced by these authorities. Suffice it to say that in some cases even where marriage has been annulled by a decree, permanent alimony has been awarded under [SECTION]. (See [PRECEDENT], [PRECEDENT], and [PRECEDENT].
(6) The matter in issue is the application of the wife filed under [SECTION] of the Act for grant of maintenance and litigation expenses pending the trial of the petition. [SECTION] of the Act reads as follows: "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 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 income of the respondent, it may seem to the court to the reasonable."
In my opinion, the jurisdiction to pass an order under [SECTION] of the Act arises as soon as any proceedings are instituted under the Act in the court and lasts so long as the proceedings are pending. The conditions circumscribing the exercise of jurisdiction are that the applicant should not have any independent income sufficient for her or his support or necessary expenses of the proceedings. If the said conditions are satisfied, the Court has jurisdiction and power to order the opposite party to pay expenses of the proceedings and monthly maintenance of such sum as may be found reasonable by the court. This provision is wider and different from the provisions contained in [SECTION] of the Act, which deals with permanent alimony and maintenance. The object of [SECTION] of the Act is to provide a monthly income and expenses of the litigation to an indigent spouse to enable it to prosecute or defend the proceedings under the Act and the law sees that nobody is disabled from prosecuting or defending the matrimonial case by starvation or lack of funds. Also see [PRECEDENT].
(7) The question that arises for consideration is whether the exercise of the power under [SECTION] is dependent on the defense raised on behalf of the opposite party. An appropriate case came up for consideration before the High Court of Allahabad in [PRECEDENT], where [ENTITY] J. observed, "the grant of relief under [SECTION] is not dependent either on the merits of the petition or on the decision of any particular issue or issues in the case or upon the ultimate success or failure of the petition it is the duty of the affluent spouse to maintain the indigent spouse. This duty is unaffected by the pleas raised in the petition even if the plea be to the jurisdiction of the court. If on the face of the petition it is maintainable and the court has jurisdiction to entertain it, then the court has also the power to grant relief under [SECTION] even if an objection to the jurisdiction is raised and even before such an objection is decided. Such an objection will be an issue in the case". The learned Judge in delivering this opinion, followed the decisions of the English Court in [PRECEDENT], which was followed in [PRECEDENT], and [PRECEDENT]. These decisions point to the rule that the plea as to the jurisdiction of the court in a matrimonial case does not affect the power of the court to allow alimony pendente lite.
(8) In the case in hand, the legality or otherwise of the marriage in dispute between the parties is a mixed question of law and fact and it depends upon the determination of the performance of marriage whether it took place on the date alleged by the appellant or on the date alleged by the respondent. Even then the question that would arise for consideration is whether such a marriage is void or voidable and what is the effect of the parties living together as husband and wife for as long a period as more than four years. The question of fact between the parties is seriously disputed and it will take some time to be decided and in fact, this is a major issue which had been raised by the respondent and this would, therefore, be decided along with the whole petition and the trial cannot take place piecemeal. Even to fight out the aforesaid issue, the appellant is entitled to a decision of her application under [SECTION] of the Act and the court below has acted with material irregularity in postponing the orders of this application till the decision of the issue of the legality of the marriage, which will virtually terminate the proceedings. The order of the court is not sustainable and is set aside.
(9) I have given very anxious thought to the question, whether having set aside the order, I should direct the court below to award maintenance and expenses or I should do it myself. One fact that has been brought to my notice is that the respondent, who is Lt. Colonel in the Army, is due to retire in September, 1976 and for this reason both the parties have got opposing interests in the matter. The appellant wants to have the same decided expeditiously, so that she may be able to realise the amount awarded from the funds of the respondent available with the Army authorities. For the same reason, the rerpondent wants to delay a decision so that he can collect all his moneys and may defeat or delay his complying with the order of the court directing payment of the maintenance, if any.
(10) The marriage between the parties and their living together as husband and wife for a period of more than four years is admitted. The cause of action arose on 27th February, 1974, and the petition under [SECTION] was instituted on 7th August, 1974, and the petition under [SECTION] ofthe Act was also filed on the same date. The replies were filed by the respondent on 11th October, 1974. The respondent has, however, succeeded in preventing an order of maintenance being passed for a" this period and the order that has been passed by the court below is mere postponement of orders on the application till the decision of final issue in the matter, which will substantially determine the fate of the whole case. I am, therefore, of the view that the matter should not be allowed to be delayed any further. In hearing an appeal, the appellate court possesses under [SECTION] and [SECTION] of the [ACT] powers to not only reverse the order but to pass such orders as ought to have been passed by the court below (see [PRECEDENT]. In [PRECEDENT]'s case (supra) the learned single Judge of the High Court of Allahabad also passed an order in revision. After setting aside the order of the court below that the application under [SECTION] would be decided after the question of jurisdiction had been determined, the learned Judge exercising the powers under [SECTION] of the Code, was pleased to pass an order allowing expenses for litigation. Even the counsel for the respondent has not seriously contested my jurisdiction or power as the court of appeal to award the amount of maintenance and litigation expenses. Under the circumstances, I consider it fit and proper and in the interests of justice to decide the application on merits.
(11) The appellant in her application has alleged that the respondent was drawing a salary of Rs. 1700.00 per month besides having an income from a plot of land and according to the rules and practice of the Army, l/3rd of his pay was payable to the wife and she claimed a sum of Rs. 800.00 per month on account of maintenance pendente lite and Rs. 2100.00 on account of litigation expenses. The respondent in the reply to the said petition stated in paragraph 7 that his basic salary was Rs. 1500.00 per month and his allowances made another Rs. 200.00 , which after deductions on account of house rent, insurance and income-tax, comes to Rs. 950.00 per month. If was further averred at the bar that the salary of the respondent has since increased to about Rs. 2000.00 per month. It is significant to note that the respondent does not have any children to maintain and in the reply the respondent has not stated that the appellant was not indigent or had any independent source of maintenance or meeting litigation expenses. His whole attack was directed against the legality of his marriage and her poor status prior to the marriage with him. Assuming the gross income of the husband to be Rs. 1700.00 per month as alleged by him and considering his net income, I am of the view that the appellant wife is entitled to a sum of Rs. 350.00 per month on account of maintenance during the pendency of the petition. So far as the litigation expenses are concerned, a sum of Rs. 1,000.00 would cover the entire litigation expenses of the trial of the petition in the court below.
(12) As a result, I allow the appeal and set aside the impugned order of she court below and direct the respondent husband to pay to the appellant a sum of Rs. l,000.00 on account of litigation expenses and a sum of Rs. 350.00 per mooth calculated from the date of the application viz. 7th August, 1974 till the decision of the case by the trial court, the arrears (Along with litigation expenses) to be paid by 6th April, 1976 and future maintenance within ten days of its becoming due every month. The court below is given the liberty to modify this order and increase or decrease the amount of maintenance on sufficient cause being shown as if the order had been passed by it.
(13) The appeal is disposed of and the respondent will pay costs of this appeal to the appellant.