[CASE NUMBER] [1] IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH [CASE NUMBER] Date of decision: January 14, 2009 Smt. [ENTITY] Petitioner v. [ENTITY] Respondent CORAM: HON'BLE MR. JUSTICE RAJESH BINDAL Present: Mr. [ENTITY], Advocate for the petitioner. Mr. [ENTITY], Advocate for the respondent.
[ENTITY] J.
Challenge in the present petition is to the order passed by the learned court below, whereby the application filed by the petitioner for grant of interim maintenance under [SECTION] of the [ACT] (for short, `the Act') was dismissed.
Briefly, the facts are that marriage between the parties was solemnised on 16.1.2005. A son was born out of the wedlock. However, as per the allegations made by the petitioner in the petition, she was turned out of the matrimonial home in May, 2006 at advanced stage of pregnancy. Subsequently, the respondent filed a petition on 7.11.2006 under [SECTION], [SECTION], [SECTION] and [SECTION] of the Act for declaring the marriage between the parties a nullity and/or divorce. During the pendency of the petition, the petitioner filed an application under [SECTION] of the Act for grant of interim maintenance for her and also for the minor child. In the petition filed by the respondent for declaring the marriage a nullity or for divorce, a plea was taken that the petitioner was already married with one [ENTITY] and on account of this fact, the petitioner was not entitled to grant of any maintenance from him.
Learned counsel for the petitioner submitted that the approach of the learned court below in declining the prayer made by the petitioner in the application under [SECTION] of the Act is totally erroneous. The petitioner had married the respondent and they lived together as husband and wife for nearly one year and 4 months. A child was also born out of the wedlock on 2.10.2006. After she was shunted out from the matrimonial home in May, 2006, she has no means to maintain herself or the minor son. Till such time, the marriage between the parties is dissolved by a decree of the court, she is entitled to receive maintenance from the respondent. He further submitted that mere reliance on a statement recorded before the Women Cell was not sufficient to hold that the petitioner was already married as the evidence in the case is yet to be led. Even if that statement is considered, it was clearly mentioned therein that the petitioner at the time of marriage was a student of 8th class and she never remained in her in-laws house. The submission is that this mere fact could not be taken against the petitioner at the interim stage to deny her maintenance pendente lite. The court is yet to opine on the issue on merits after considering the evidence to be led by the parties. In fact, by declining the interim maintenance to the petitioner, the court has formed a final opinion on the merits in the petition filed by the respondent, which is totally uncalled for. Learned counsel placed reliance upon a judgment of Hon'ble the Supreme Court in [PRECEDENT], wherein it was held that even if a lady re-marries without divorce from her first marriage, the second marriage is illegal but not immoral and the court is competent to grant alimony to the wife at the time the second marriage is declared to be null and void. The submission is that once the court is competent to grant permanent alimony under [SECTION] of the Act, there is no reason for denying the same to the petitioner at an interim stage. He further submitted that income of the respondent being Rs. 10,000/- per month, he being employed as Store Manager Brista Captaria, District Center, DLF, Gurgaon, the petitioner is entitled to maintenance @ Rs. 5,000/- per month for her maintenance and also for the minor child.
On the other hand, learned counsel for the respondent submitted that as the marriage between the parties was a nullity, the petitioner would not be entitled to any maintenance as [SECTION] of the Act will not apply in case the marriage is illegal. Relying upon the statement made by the petitioner before the Women Cell, it was submitted that she herself admitted about her previous marriage. However, the fact that a child was born out of this wedlock on 2.10.2006 is not disputed. Reliance was placed upon [PRECEDENT].
Heard learned counsel for the parties and perused the record. The undisputed fact on record is that marriage of the parties was solemnised on 16.1.2005 and a son was born out of the wedlock on 2.10.2006. The parties are living separately since May, 2006 and a petition for declaring the marriage a nullity or for divorce, was filed by the respondent on 7.11.2006, in which the petitioner filed application for interim maintenance under [SECTION] of the Act which was declined by the learned court below, relying upon a document produced before it in the form of the statement of the petitioner recorded in some proceedings before the Women Cell, where she allegedly admitted regarding some marriage with another person when she was a student of 8th class and further stating that she never went to her in-laws house and her husband had already expired.
Hon'ble the Supreme Court in [PRECEDENT]'s case (supra) held that even if a lady re-marries without having divorce from her first marriage, the second marriage may be illegal but not immoral. If such a marriage is declared null and void, the court is competent to grant permanent alimony to the wife under [SECTION] of the Act. Once the court can grant permanent alimony to a women who had married second time without divorcing from her first marriage, in my opinion, there cannot be any bar for grant of interim maintenance in such circumstances. Further, it is a case where even the document produced by the respondent on record in support of his claim for declaring the marriage as nullity, is still required to be proved in evidence. Thereafter, even the petitioner is also to lead evidence in defence. At the interim stage, the court cannot come to a conclusion that marriage between the parties is a nullity and decline interim maintenance on that ground. That is the final relief claimed by the respondent in the petition filed by him and even when the petition is decided finally, in terms of the aforesaid judgment in [PRECEDENT]'s case (supra), the court can still grant permanent alimony. In addition to this, there is a child born out of the wedlock, which is the responsibility of the parents. The respondent cannot shirk his responsibility to maintain him. He is merely two years old. If he is to be maintained, he will have to be taken care of by someone. Mother is the best guardian. Considering the fact that income of the respondent is Rs. 10,000/- per month, in my opinion, it would be reasonable to assess the maintenance for the petitioner and her minor child at Rs. 3,500/- per month which shall be payable from the date of filing of the application under [SECTION] of the Act.
The judgment in [PRECEDENT]'s case (supra) is distinguishable on facts, as there the issue under consideration was grant of maintenance under [SECTION] of the [ACT] at final stage when entire evidence had been led.
Accordingly, the impugned order passed by the learned court below is set aside. The application filed by the petitioner for maintenance before the court below is accepted to the extent mentioned above.
The revision petition is disposed of in the manner indicated above.
([ENTITY]) Judge 14.1.2009 mk (Refer to Reporter)