Brijinder Bir Singh vs Mst. Vinod @ Parminder

A.L. Bahri, J.—The annulment of the marriage is claimed by the husband on the ground that his consent for the marriage was obtained by fraud and misrepresentation as the facts that the wife was earlier married and was not a graduate were concealed. In March 1984 Vinod had married Surinder Awasthy. In July 1986, on behalf of Vinod an advertisement was got published in the newspaper for matrimonial alliance to which Brijinder Bir Singh responded and ultimately marriage was performed on March 1, 1987. It was subsequently when the fact of Vinod''s previous marriage with Surinder Awasthy came to light that the present petition was filed. In between according to the husband both of them did not spend much time together. A divorce decree was obtained by Vinod against her previous husband-Surinder Awasthy on January 2, 1987.

From the sequence of facts stated above prima facie it could be said that the factum of previous marriage of Vinod with Surinder Awasthy was concealed while obtaining consent of Brijinder Bir Singh for his marriage to Vinod.

In the proceeding pending before the Additional District Judge, Hoshiarpur, an application u/s 24 of the Hindu Marriage Act was filed on behalf of the wife claiming maintenance during pendency of the proceedings and litigation expenses which was allowed as stated above.

Mr. K.M. Singh, Attorney of the husband, while arguing the case has stressed that provision of Section 23 of the Hindu Marriage Act would also be applicable to the proceedings u/s 24 of the Hindu Marriage Act and no maintenance or litigation expenses should have been allowed as the wife was taking benefit of her own wrong. After hearing both sides I am of the view that Section 23 of the Act would be applicable strictly to such petitions filed under different provisions of the Hindu Marriage Act which culminate in passing decrees such as petitions under Sections 9, 10, 12 and 13 of the Hindu Marriage Act. The contention of Shri K.N. Singh, Attorney of the husband, that any final adjudication by the civil Court would amount to decree as provided u/s 2(2) of the CPC will not be attracted to a decision of application filed under-Section 24 of the Hindu Marriage Act. Section 24 itself provides for passing of an order and not a decree. Wherever the Legislature intended a decree to be passed, it so provided in different Sections of the Act as mentioned above.

5. While deciding application u/s 24 of the Hindu Marriage Act the matters mentioned u/s 24 of the Act and conduct of the parties can be taken into consideration.-It was so held by the Rajasthan High Court in Balbir Singh v. Smt. Swarn Kanta AIR 1981 Raj 226. Since Section 24 of the Hindu Marriage Act provides discretion to be exercised by the Court, it is taken that such a discretion is to be exercised judicially considering the circumstances of each case and simply because a petition is filed by a wife per se is no ground to allow the same.

Coming to the merits of the case it may be noticed that the wife no doubt stated that she had no source of income. However, on behalf of the husband a specific allegation was made in para 5 that she had inherited a house from her father and that she was working as a Receptionist-cum-Telephone Operator getting Rs. 1,500 per mensem. When reply to this paragraph filed by the wife, no mention was made regarding the house. However, regarding her working as Receptionist-cum-Telephone Operator and getting Rs. 1,500 as salary was denied. Since the wife did not deny specifically the property inherited by her from her father, the allegation of the husband could be taken as correct. It was within the special knowledge of the wife regarding the actual income received from the house. In the revision petition filed by the husband an effort was made to produce material that from the said house there was income of about Rs. 1,650 per mensem. It is not considered appropriate at this stage to make any enquiry regarding the actual income from the said house which is stated to be with the tenants. It is the wife who is to suffer on that account as she did not disclose about the house owned by her and the income derived by her therefrom. She was supposed to approach the Court with clean hands and when she had concealed the source of income and particularly in view of the broad facts on which the petition has been filed i.e. concealment of her previous marriage by obtaining consent of the present petitioner for marriage, she disentitled herself for the interim maintenance during pendency of the proceedings. Learned Counsel for the wife has referred to the decision of this Court in Smt. Rajinder Kaur Vs. Attinderjit Singh, , wherein it was observed that it was not required of the Court while deciding the petition u/s 24 of the Act to take into consideration gross misbehaviour or allegations of infidelity of the wife in the divorce petition. The ratio of the decision cannot be applied to the case in hand as there are no such allegations against the character of the wife after the present marriage. What is to be taken into consideration is the conduct before the present marriage.

During the pendency of the revision petition the husband was directed to pay the litigation expenses of Rs; 1,000 as ordered by the Additional District Judge and operation of the impugned order was stayed qua the maintenance. Any observations made in this order are only tentative for the disposal of the petition u/s 24 of the Hindu Marriage Act and will not affect the main petition on merits which is yet to be decided on inviting pleadings and evidence of the parties. It is not considered appropriate that the wife should be directed to refund the sum of Rs. 1,000 already paid. While accepting the revision petition filed by the husband the impugned order is modified as above.

There is no ground made out for enhancing the amount of maintenance or litigation expenses in the revision filed by the wife. Likewise no ground is made out for granting maintenance or litigation expenses of this revision petition on an application filed u/s 24 of the Hindu Marriage Act in the revision petition filed by the wife as in that petition also the wife has conspicuously concealed the income from the house inherited by her. Her application as well as hex revision petition are dismissed. The parties are left to bear their own costs.