IN THE HIGH COURT OF JUDICATURE AT PATNA C.R. No.184 of 2006 MUKESH KUMAR RAI Versus RINKI KUMARI ----------- 9 24.06.2008 Heard counsel for the petitioner and the counsel for the State. The petitioner is aggrieved by an order dated 13.07.2005 in Matrimonial Case No.16 of 2003 whereby and whereunder the court below had allowed monthly maintenance in favour of the opposite party to the tune of Rs.1,000/- per month and Rs.500/- per month towards the cost of litigation in purported exercise of Section 24 of the Hindu Marriage Act. Counsel for the petitioner submits that as a matter of fact the very factum of marriage between the petitioner and the opposite party is in a serious disputed by the petitioner inasmuch as even at the time of marriage there was a substantive criminal case lodged by the family members of the petitioner alleging the kidnapping of the petitioner who is claimed to be a minor on the date of alleged marriage. He further submits that therefore when the petitioner had appeared in the aforementioned Matrimonial Case No.16 of 2003 a specific plea was raised by him with regard to the maintainability of the application seeking restitution of conjugal right of the opposite party on the ground that there was no relationship of man and wife between them. It has been further submitted that the court below had also no material before it on the basis of which it has come to a finding that the petitioner was himself an earning member or was capable of at least paying Rs.1,000/- per month towards the maintenance of the opposite party and Rs.500/- per month to her towards the cost of litigation. In nutshell the counsel 2 for the petitioner has submitted that the court below without considering the defence of the petitioner as specifically raised before him while contesting the application for grant of maintenance has passed the impugned order. Counsel for the opposite party with reference to the counter affidavit which has been filed on 21.05.2007 submits that there is denial of this aspect that petitioner was forcibly married with the opposite party and in that context the counsel had placed his reliance on paragraph No.3 of the counter affidavit claiming that the said marriage was witnessed by large number of co-villagers and the photographs etc proves the genuineness of the marriage. From the record it transpires that the sealed envelope containing photographs was retained by this court on 21.05.2007 and the sealed photographs was opened in presence of both the parties. These photographs by themselves do not lead to a prima-facie satisfaction in the story of marriage as asserted by the opposite party. Moreover the photographs are in fact not primary evidence rather at best they are in nature of secondary evidence which have yet to be adduced in evidence for its being considered in their proper perspective. Apparently, these photographs are of no assistance at this stage. A question would thus arise as to on what basis the court below has proceeded that there was a subsisting marriage between the opposite party and the petitioner. Merely because an application was filed by the opposite party claiming restitution of conjugal right that by itself will not mean that there was a subsisting marriage especially when there is serious dispute on the crucial issue between the parties. Added 3 to it, there was no material before the court below which had considered the aspect with regard to the assured income of the petitioner on the basis of which he has fastened the liabilities of payment of Rs.1, 000/- per month on the petitioner. In fact, there is also no discussion on this aspect even when from the pleadings of the petitioner it transpires that he had seriously contested this very issue of his income. Even the aspect that the petitioner had sufficient independent source of income from landed property has not been discussed and considered by the court below in the light of the specific case of the petitioner that his family consisting of his parents as well as three brothers including the petitioner are to be supported from such joint family property. Unfortunately, all these aspects have not at all been taken into consideration in the impugned order passed by the court below which appears to have passed the same mechanically. The impugned order is thus unsustainable and the court-below is required to re-consider the matter afresh in the light of the pleadings on record and if necessary by also taking further evidence of both the parties. Accordingly, this application is allowed and the impugned order is quashed. The court below is directed to consider the matter afresh strictly in terms of Section 24 of the Hindu Marriage Act and pass an appropriate order within a period of three months in accordance with law. Mkr. (Mihir Kumar Jha, J.)