IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.10713 of 2011 Braj Kishore Kumar Versus Reshma Praveen ----------- 04. 25.07.2011 Heard the learned senior counsel, Mr. Yogesh Chandra Verma on behalf of the petitioner. (2) This writ application has been filed against the order dated 27.04.2011 passed by the learned Principal Judge, Family Court, Motihari in Matrimonial Case No.68 of 2010 whereby the learned Family Court allowed the petition under Section 24 of the Hindu Marriage Act filed by the respondent and directed the petitioner to pay Rs.3,000 per month w.e.f. 02.12.2010, the date of filing of the application as maintenance and further directed to pay Rs.5,000 as cost of litigation. (3) The learned counsel for the petitioner submitted that the petitioner has filed this Matrimonial Case under Section 11 of the Hindu Marriage Act for declaring the marriage with the respondent as null and void. The learned counsel further submitted that respondent is Muslim lady and she was legally married wife of Md. Naushad. She was living with the petitioner without there being any marriage but later on, she started claiming to be the married wife and therefore, necessity arose for filing the present suit for declaring the alleged marriage as void. 2 (4) The learned counsel further submitted that in view of the above facts, without deciding that the marriage between the parties is legal and valid, the learned Court below would not have passed the order under Section 24 of the Hindu Marriage Act. The learned counsel relied upon various decisions which I am considering one after other here-in-below. (5) The learned counsel relied upon a decision reported in 1988 S.C. 644(Smt. Yamunabai Anantrao Adhav vs. Anantrao Shivram Adhav) and submitted that wife means legally wedded wife. Unless decision proved that she is legally wedded wife, no order under Section 24 of the Hindu Marriage Act would have been passed. Perused the decision of the Apex Court. It is a case under Section 125 Cr.P.C. Therefore, the principle laid down by the Supreme Court is not applicable in the present case because in this case, the petitioner himself filed the proceeding under Hindu Marriage Act and seeking declaration that the marriage is void and null. Impliedly therefore, the prayer of the petitioner is that there is a marriage but it should be declared as void on the grounds stated in the application. (6) The learned counsel next relief upon 1998(1) P.L.J.R.80(Rajan Kumar Jha vs. State of Bihar) and submitted that in that case, it was held that it is not proper to pass any order for payment of 3 maintenance pendent elite when the marriage is denied. From perusal of the said decision, it appears that in that case the wife filed application for restitution of conjugal right. The husband stated that there were no marriage, therefore, there is no question of conjugal right arises. According to the husband, he was kidnapped on the day when it is alleged that marriage took place and a criminal case was instituted. Therefore, the facts of that case are entirely different. (7) The learned counsel next relied upon a decision reported in A.I.R.1967 Patna 277(Banshidhar Jha v. Chhabi Chatterjee). It appears that case was filed under Section 488 of the Cr.P.C. for maintenance, therefore, it is also not applicable. (8) The learned counsel next relied upon a photocopy of the judgment dated 04.12.2008 of the Supreme Court(Gullipilli Sowria Raj vs. Bandaru Pavani @ Gullipili Pavani) and submitted that in that case, it was held that the marriage between Hindu and Christian is invalid and void. According to the learned counsel, here, the marriage is between Hindu and Muslim which is void. From perusal of paragraph 6 of the said judgment, it appears that in that case, there was no dispute that at the time of purported marriage, the wife was Christian and continued to be so whereas the husband was Hindu and continued to be so. In the present case at 4 our hand, it is the specific case of the respondent that she converted and adopted Hinduism and after conversion of religion from Muslim to Hindu, marriage took place at Sheetla Mandir, Agamkuan, Patna on 19.05.2005. Therefore, in this case at our hand, it is not admitted fact that one party is Muslim on the date of marriage and the other party is Hindu. Therefore, the said decision is also not applicable. (9) The learned counsel next relied upon a judgment passed by this Court in First Appeal No.222 of 1988(Kedar Halwai vs. Sachitanand Halwai). From perusal of the said decision, it appears that it was a partition suit and it was admitted fact that at the time of marriage, the other spouse was living. Moreover, it was not a proceeding under Hindu Marriage Act. Therefore, the said decision is also not applicable. (10) Under Section 24 of the Hindu Marriage Act amplest discretion is conferred on the Court and an order for maintenance pendent elite and costs of the proceeding, as the initial words of the section clearly stated, can be made in any proceeding under the Act when it is shown that any of the spouse has no independent income sufficient for support, and, the order will operate during the proceeding. Any order under Section 24 of the Hindu Marriage Act must depend on the circumstances of each case and no fixed rule can be expected. The Court 5 exercises a wide discretion in the matter of granting maintenance pendent elite but the discretion is judicial and not arbitrary or capricious. It is well settled that the principle that a marriage de facto carries the right to alimony pendent elite. The Court would not allow its discretion to be fettered by the nature of the allegation made by the parties and would not examine the merits of the case. (11) The learned counsel submitted that the marriage between Hindu and Muslim lady is not valid under the Hindu Marriage Act and it is ipso jury void. From the case of the respondent as pleaded it appears that prima facie the Court was satisfied that respondent gave talak to her husband and adopted Hinduism and then married according to Hindu rites. Whether the marriage is valid or void or illegal, these are the question to be decided finally. Under Section 24 of the Hindu Marriage Act, these questions cannot be gone into. Here the proceeding has been brought by the petitioner under the Hindu Marriage Act which itself is sufficient to show that the marriage is accepted and the proceeding is for declaring the marriage as void. In the above fact the petitioner can not escape from his liability to pay maintenance under Section 24 of the Hindu Marriage Act on the ground that marriage is void as the question is yet to be decided. It is the case of the petitioner that marriage is void. It is not admitted by the 6 respondent. (12) In view of the above discussion, I find that the Court below has exercised the jurisdiction vested in it by law and by no means it can be said that the order impugned is illegal, arbitrary or that the discretion has been exercised in a manner not permitted by law or in utter disregard of provisions of law and grave injustice or gross failure of justice has occasioned thereby. No other point is raised by the petitioner. (13) Therefore, it is not a fit case for interference in supervisory jurisdiction under Article 227 of the Constitution of India. (14) Thus, this writ application is dismissed. Saurabh/A.F.R. ( Mungeshwar Sahoo, J.)