Once a decree of divorce has been passed on the application of the wife on 3.6.1996 and the decree has been acted upon in as much as the wife has remarried, the relationship of husband and wife does not subsist any longer. According to Section 41 of the Indian Evidence Act, 1872 a final judgment or decree of a competent Court in the exercise of matrimonial jurisdiction which takes away from any person any legal character are judgment in rem. Therefore, the status of the parties cannot be said to be of husband and wife. A perusal of Sections 24 and 26 of the Act would show that the provision with regard to maintenance pendente lite and for payment of litigation expenses are applicable only if the parties are husband and wife. Moreover, the respondent-wife has herself pleaded in paragraph 4 of the application dated 14.9.2000 that she has remarried. Once the respondent-wife has remarried and is living with her husband grant of the application of the wife for maintenance would mean that she is married to two persons which is impossible proposition to accept.
2. I have heard Shri S.P. Soi, Advocate for the petitioner and Shri Arun K. Bakshi, Advocate for the respondent.
3. Shri S.P. Soi, learned counsel for the petitioner-husband has submitted that once a decree of divorce at the instance of the respondent-wife has been passed by the learned District Judge on 3.6.1996, there is no subsisting relationship of husband and wife be tween the parties. He further contended that there is express averment made in the appli cation for maintenance under Section 24 of the Act that the wife has remarried after get ting divorce so the question of grant of maintenance under Sections 224 or 26 of the Act would not arise.
4. On the other hand, Shri K. Bakshi, Advocate for the respondent-wife has relied on a Division Bench Judgment in the case of Arjan Singh v. Smt. Parmali, 1980 R.L.R. 431 and a judgment in the case of Madan Lal v. Meena, 1986(2)90 P.L.R. 601 and contended that merely because the wife has contracted a remarriage would furnish no ground to refuse the application of wife under Section 24 and 26 of the Act especially when the husband has already filed an application under Order IX Rule 13 of the Code of Civil Procedure, 1908 (for short 'the Act') seeking setting aside the exparte decree of divorce passed in favour of the respondent-wife at her instance.
5. I have given my thoughtful consideration to the respective submissions of the learned counsel for the parties and am of the opinion that this petition deserves to be allowed.
6. Once a decree of divorce has been passed on the application of the wife on 3.6.1996 and the decree has been acted upon in as much as the wife has remarried, the relationship of husband and wife does not subsist any longer. According to Section 41 of the Indian Evidence Act, 1872 a final judgment or decree of a competent Court in the exercise of matrimonial jurisdiction which takes away from any person any legal character are judgment in rem. Therefore, the status of the parties cannot be said to be of husband and wife. A perusal of Sections 24 and 26 of the Act would show that the provision with regard to maintenance pendente lite and for payment of litigation expenses are applicable only if the parties are husband and wife. Moreover, the respondent-wife has herself pleaded in paragraph 4 of the application dated 14.9.2000 that she has remarried. Once the respondent-wife has remarried and is living with her husband grant of the application of the wife for maintenance would mean that she is married to two persons which is impossible proposition to accept.
7. In so far as the Division Bench judgments in the case of Arjan Singh's case (supra) is concerned there was an allegation that the wife in that case had deserted the husband and contracted Karewa marriage. In that case, there was no admission on the part of the wife with regard to remarriage and there was no decree of divorce granted in favour of the wife at her instance. Therefore, the judgment does not advance the case of the respondent-wife.
8. The other judgment in Madan Lal's case (supra) relied on by the learned counsel for the respondent-wife has no bearing on the controversy in hand. In that case also neither the wife had remarried after passing of decree or divorce in her favour nor there was any admission on the part of the wife that she has remarried.
9. For the reasons-recorded above, this revision petition is allowed and the order passed by the learned District Judge on 3.11.2000 is set aside.
Punjab-Haryana High Court
Malkiat Singh vs Smt. Darshan Kaur on 12 July, 2002
Equivalent citations: I (2003) DMC 572
1. This revision petition is directed against the order dated 3.11.2000 passed by learned District Judge, Julandhar whereby the application of respondent-wife filed under Sections 24 and 26 of the Hindu Marriage Act, 1955 (for short 'the Act') has been allowed and litigation expenses of Rs. 2000/- and maintenance pendente lite at the rate of Rs. 1000/- per month payable from the date of application i.e. 14.9.2000 has been given.2. I have heard Shri S.P. Soi, Advocate for the petitioner and Shri Arun K. Bakshi, Advocate for the respondent.
3. Shri S.P. Soi, learned counsel for the petitioner-husband has submitted that once a decree of divorce at the instance of the respondent-wife has been passed by the learned District Judge on 3.6.1996, there is no subsisting relationship of husband and wife be tween the parties. He further contended that there is express averment made in the appli cation for maintenance under Section 24 of the Act that the wife has remarried after get ting divorce so the question of grant of maintenance under Sections 224 or 26 of the Act would not arise.
4. On the other hand, Shri K. Bakshi, Advocate for the respondent-wife has relied on a Division Bench Judgment in the case of Arjan Singh v. Smt. Parmali, 1980 R.L.R. 431 and a judgment in the case of Madan Lal v. Meena, 1986(2)90 P.L.R. 601 and contended that merely because the wife has contracted a remarriage would furnish no ground to refuse the application of wife under Section 24 and 26 of the Act especially when the husband has already filed an application under Order IX Rule 13 of the Code of Civil Procedure, 1908 (for short 'the Act') seeking setting aside the exparte decree of divorce passed in favour of the respondent-wife at her instance.
5. I have given my thoughtful consideration to the respective submissions of the learned counsel for the parties and am of the opinion that this petition deserves to be allowed.
6. Once a decree of divorce has been passed on the application of the wife on 3.6.1996 and the decree has been acted upon in as much as the wife has remarried, the relationship of husband and wife does not subsist any longer. According to Section 41 of the Indian Evidence Act, 1872 a final judgment or decree of a competent Court in the exercise of matrimonial jurisdiction which takes away from any person any legal character are judgment in rem. Therefore, the status of the parties cannot be said to be of husband and wife. A perusal of Sections 24 and 26 of the Act would show that the provision with regard to maintenance pendente lite and for payment of litigation expenses are applicable only if the parties are husband and wife. Moreover, the respondent-wife has herself pleaded in paragraph 4 of the application dated 14.9.2000 that she has remarried. Once the respondent-wife has remarried and is living with her husband grant of the application of the wife for maintenance would mean that she is married to two persons which is impossible proposition to accept.
7. In so far as the Division Bench judgments in the case of Arjan Singh's case (supra) is concerned there was an allegation that the wife in that case had deserted the husband and contracted Karewa marriage. In that case, there was no admission on the part of the wife with regard to remarriage and there was no decree of divorce granted in favour of the wife at her instance. Therefore, the judgment does not advance the case of the respondent-wife.
8. The other judgment in Madan Lal's case (supra) relied on by the learned counsel for the respondent-wife has no bearing on the controversy in hand. In that case also neither the wife had remarried after passing of decree or divorce in her favour nor there was any admission on the part of the wife that she has remarried.
9. For the reasons-recorded above, this revision petition is allowed and the order passed by the learned District Judge on 3.11.2000 is set aside.
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