Smt. Sunita @ Sheetal Satija vs Sh. Ram Kishan Satija

Aruna Suresh, J.

CM No. 16827/2009 (for exemption)

Exemption allowed, subject to all just exceptions. Application stands disposed of.

CRP No.155/2009

Petitioner was initially married to one Virender Kumar according to Hindu Rites and Ceremonies. The said marriage is said to have been dissolved as per customary laws observed in that particular sect of society of Punjab, to which the petitioner belong. Thereafter petitioner married Ajay Gupta on 28th June, 1999, according to Hindu Rites and Ceremonies. This marriage also did not survive for more than eight years and petitioner and Ajay Gupta dissolved the same by a decree of divorce by mutual consent on 14th March, 2007. After about four months of dissolution of the marriage, petitioner married the respondent on 22nd July, 2007, according to Hindu Rites and Ceremonies. This marriage is also on the rocks and parties are living separately since 16th October, 2007. Petitioner filed a petition u/s 125 of the Code of Criminal Procedure (hereinafter referred to as ''Cr.P.C.'') seeking maintenance and a complaint under Domestic Violence Act. She also filed a petition u/s 9 of the Hindu Marriage Act (hereinafter referred to as the ''Act'') for restitution of conjugal rights, whereas respondent filed a petition for divorce and later on converted the same into a petition for nullity of marriage.

Petitioner filed a petition u/s 24 of the Act seeking interim maintenance from the respondent. The said petition was dismissed by the Trial court vide impugned order dated 7th October, 2009. However, in pursuance of the order of the Metropolitan Magistrate passed in the petition u/s 125 Cr.P.C., petitioner is getting a sum of Rs.1,000/- for rental accommodation.

The Trial Court dismissed the application of the petitioner u/s 24 of the Act, keeping in mind that respondent had disputed the legality and validity of the marriage between him and the petitioner because of petitioner having not divorced her first husband Virender Kumar in accordance with law and whether any custom is prevalent in the community, to which the petitioner belongs, any virtual contacts between the petitioner and Virender could be dissolved by the community people, is a question which needed trial and could be decided only after the evidence of the parties was adduced. The Trial Court also took into consideration the fact that the petitioner had filed an application u/s 24 of the Act in the petition u/s 9 of the Act filed by her against her previous husband Ajay Gupta. The said petition was also dismissed by the Trial Court with the observation that the petitioner''s marriage with her first husband Virender Kumar was still subsisting.

Learned counsel for the petitioner has submitted that the petitioner had challenged the order of the Trial Court, dismissing her application u/s 24 of the Act, filed in a petition u/s 9 of the Act vide CM No.13427/06. Said CM was disposed of with the observation that, observations made by the Court in the said order could not be read against the petitioner in the main petition pending at Noida Courts, in which the question as to whether there existed any such customary law for dissolution of marriage and the fact thereof would be considered. The Trial Court therefore, went wrong in considering the said order passed on an application u/s 24 of the Act filed in the petition u/s 9 of the Act while dismissing this application in the instant case.

These submissions are of no help to the petitioner. Obviously, the said CM was dismissed as petitioner had made a statement that she did not press for interim maintenance. Since she was aggrieved of certain observations made in the said order dated 8th August, 2006 about dissolution of her marriage by customary practice, this Court made it clear that the observations made in the order dated 8th August, 2006, impugned before the Court, would not prejudice the case of the petitioner on merits. Petition u/s 9 of the Act filed by the petitioner was dismissed by the Court holding that petitioner''s marriage with her first husband Virender Kumar was still subsisting. Petitioner has chosen not to place on record the certified copy of the said order of the Trial Court. Therefore, whether marriage between petitioner and Virender Kumar stood legally dissolved, as per the customary law, is still an issue which needs trial and adjudication in the petition filed by the respondent seeking a decree for nullity of marriage between him and the petitioner.

Learned counsel for the petitioner has further submitted that it stands proved on record that marriage between petitioner and Virender Kumar stood legally and validly dissolved by customary practices when she and her second husband Ajay Gupta sought dissolution of marriage by a decree for divorce by mutual consent.

These submissions cannot be entertained for the simple reason that while dissolving marriage on mutual consent of the parties filed u/s 13B of the Act, Court was not to see the merits and demerits of the case; and only that marriage between the parties to the petition had irretrievably broken down and the parties could not live together. The Trial Court, while granting divorce to the petitioner and Ajay Gupta did not consider if marriage between the petitioner and Ajay Gupta was a lawful marriage in the background of petitioner having previously married Virender Kumar, whom she allegedly divorced as per the custom.

Under these circumstances, when relationship of husband and a wife is disputed and it is yet to be ascertained, if petitioner is a lawful wedded wife of the respondent, in the absence of any other evidence on record, the Trial Court rightly rejected the petition for interim maintenance. I find no reason to interfere with the observations made by the Trial Court while dismissing the application. It is of relevance that petitioner had received Rs.4,00,000/- from Ajay Gupta at the time of obtaining divorce from him. She is also getting Rs.1,000/- as rent, as per the order of the Metropolitan Magistrate passed in the Domestic Violence Act case. Hence, the petition is hereby dismissed.