Sukhdev Kaur vs Sh. Harjinder Singh

Sham Sunder, J.—This revision-petition, is directed against the order dated 16.07.05, rendered by the Additional District Judge (Fast Track Court), Rupnagar, vide which, it dismissed the application, u/s 24 of the Hindu Marriage Act, filed by Sukhdev Kaur, petitioner, for the grant of maintenance pendente-lite to the tune of Rs. 5000/- per month, and litigation expenses, to the tune of Rs. 10,000/-, during the pendency of petition, u/s 25 of the Hindu Marriage Act, 1955 (amended upto date) (hereinafter to be called as the Act only).

The facts, in brief, are that, the marriage, between the parties, took place, on 17.08.97, by way of Anand Karaj ceremony. It was stated that, after the marriage, the parties lived together, for one year, as husband and wife. This was the second marriage of both the parties. The petitioner, had a female child, from her previous marriage, whereas, the respondent, had three children, from his previous marriage. It was further stated that the parties, could not live together, and, therefore, a petition, u/s 13 of the Act, was filed, which was accepted, on 19.05.04, and a decree of divorce, dissolving the marriage, between the parties, was passed. Accordingly, a petition, u/s 25 of the Act, for the grant of permanent alimony of Rs. 7 lacs, and maintenance allowance @ Rs. 5,000/- per month, with a prayer, to create charge on the land of the respondent, was filed.

During the pendency of the petition, u/s 25 of the Hindu Marriage Act, an application, u/s 24 of the Act, for the grant of maintenance pendente-lite to the tune of Rs. 5,000/- per month and litigation expenses to the tune of Rs. 10,000/-, was filed, on the ground, that the petitioner, was unable, to maintain herself, as she was not in possession of any movable or immovable property and did not derive income from any source, so as to maintain herself. It was further stated that the respondent, being a man of means, was liable to maintain her.

In reply to the application, u/s 24 of the Act, it was admitted, that the marriage, between the parties, took place. It was also admitted, that a divorce petition, was filed, which was, ultimately accepted, and, a decree of divorce, was passed. It was stated that, during the pendency of petition, u/s 25 of the Act, an application, u/s 24 of the Act, was not maintainable, as no relationship of husband and wife, at the time of filing the said application subsisted. It was further stated that, after the decree of divorce, was passed, the petitioner, again re-married, at village Bachheri, in District Ludhiana. It was further stated that the entire gold ornaments, given by the respondent, to the petitioner, and two FDRs of the value of Rs. 61,500/- and Rs. 25,000/-, as also the Vikas Patras of Rs. 25,000/-, had been encashed by the petitioner, and this amount, was deposited, by her. Accordingly, a prayer, was made, that the application, u/s 24 of the Act, be dismissed.

After hearing the Counsel for the parties, and, on going through the record of the case, the trial Court, dismissed the application, u/s 24 of the Act, vide the order impugned.

Feeling aggrieved, the instant revision-petition, has been filed, by the revision-petitioner.

I have heard the Counsel for the parties, and, have gone through the documents, on record, carefully.

The Counsel for the revision-petitioner, submitted that, no doubt, the decree of divorce, has already been passed, by the Court, dissolving the marriage of the parties, yet during the pendency of petition, u/s 25 of the Act, an application, u/s 24 of the Hindu Marriage Act, was maintainable. He further submitted that proceedings, u/s 25 of the Hindu Marriage Act, are a part of the proceedings, u/s 24 of the Hindu Marriage Act, and, therefore, the petitioner, was entitled to maintenance pendente-lite and litigation expenses, in proceedings, arising, out of the petition, u/s 25 of the Act. He also placed reliance, on Chuni Lal Gulati Vs. Krishana Rani, , Krishan Lal v. Smt. Kamlesh Rani (1988) 93 PLR 361 and Harjinder Singh Vs. Sukhdev Kaur, , in support of his contention. He further submitted that the trial Court, was wrong, in dismissing the application, merely, on the ground, that since there existed no relationship of husband and wife, between the parties, after the passing of the decree of divorce, maintenance pendente-lite and litigation expenses, in an application, u/s 24 .of the Hindu Marriage Act, during the pendency of the petition, u/s 25 of the Act, could not be granted. He further submitted that the order impugned, being illegal, was liable to be set aside.

On the other hand, the Counsel for the respondent, submitted that, since there was no relationship of husband and wife, between the parties, the same having already disrupted, on account of the passing of the decree of divorce, no application, u/s 24 of the Act, during the pendency of the petition, u/s 25 of the Act, was maintainable. He also placed reliance, on Chand Dhawan (Smt) Vs. Jawaharlal Dhawan, and Malkiat Singh v. Smt. Darshan Kaur 2002 (3) CCC, 665 (P&H), in support of his contention. He further submitted that, an application, u/s 24 of the Hindu Marriage Act, could only be maintained, in the pending proceedings, under Sections 9, 11, or 13 of the Act. He further submitted that the order impugned, being legal and valid, was liable to be upheld.

After giving my thoughtful consideration, to the rival contentions, raised by the Counsel for the parties, in my considered opinion, the revision-petition, deserves to be accepted, for the reasons to be recorded, hereinafter. The principal question, that falls for consideration, is, as to whether, during the pendency of petition, u/s 25 of the Act, which can only be filed, after a decree of divorce, by dissolution of marriage, is passed, an application u/s 24 of the Act, is maintainable or not. In Chuni Lal Gvlati''s and Krishan Lai''s cases (supra), relied upon, by the Counsel for the revision-petitioner, the principle of law, laid down, was to the effect, that the proceedings, u/s 25 of the Hindu Marriage Act, are a part of the proceedings, u/s 24 of the Act, and, therefore, the petitioner, is entitled to maintenance pendente-lite and litigation expenses, in the proceedings, arising out of Section 25 of the Act. In other words, it was held, in these cases, that an application u/s 24 of the Act, during the pendency of the proceedings u/s 25 of the Act, is maintainable. The principle of law, laid down, in the aforesaid cases, is fully applicable, to the facts of the instant case. No doubt, it was averred, in reply to the application, that after the decree of divorce, the petitioner, re-married. However, no prima-facie proof, was produced, on the record, to establish this factum. Even otherwise, this factum, shall be finally determined, during the trial of the petition, u/s 25 of the Act, when the parties lead evidence. Under these circumstances, the application, u/s 24 of the Act, filed by the petitioner, in the instant case, during the pendency of petition, u/s 25 of the Act, was maintainable, and the petitioner, was entitled to the maintenance pendente-lite and litigation expenses. The trial Court, acted illegally, in recording findings to the contrary. The findings of the trial Court, to the effect, that the application, filed by the petitioner, u/s 24 of the Hindu Marriage Act, during the pendency of petition, u/s 25 of the Hindu Marriage Act, was not maintainable, being contrary to the principle of law, laid down, in Chuni Lal Gulati''s and Krishan Lal''s cases (supra), are liable to be reversed.

As stated above, petition, u/s 25 of the Hindu Marriage Act, was only maintainable, after the passing of the decree of divorce. In Chand Dhawan (Smt''s) case (supra), relied upon, by the Counsel for the respondent, the wife sought permanent alimony, even before the decree of divorce had been passed. It was, under these circumstances, held that the said petition, was not maintainable. In Malkiat Singh''s case (supra), the wife, remarried after divorce. There was no relationship of husband and wife. It was, thus, held that she could not file a petition, in terms of Section 25 of the Hindu Marriage Act. In the instant case, as stated above, the remarriage, was not established, even prima-facie. The facts of Chand Dhawan (Smt ''s) and Malkiat Singh''s cases (supra) being distinguishable from the facts of the instant case, no help, can be drawn by the Counsel for the respondent therefrom. The submission of the Counsel for the respondent, being without merit, must fail, and the same stands rejected. The order impugned, suffers from illegality, material irregularity, and perversity, warranting the interference of this Court, in its revisional jurisdiction, and, is liable to be set aside.

For the reasons recorded above, the revision-petition, is accepted. The order impugned, is set aside. The application, u/s 24 of the Hindu Marriage Act, is accepted. Maintenance pendente-lite @ Rs. 5,000/- per month, from the date of filing the application, and litigation expenses, to the tune of Rs. 10,000/-, are granted, during the pendency of petition, u/s 25 of the Act.