Section 24 of the Act provides for temporary alimony. An application under Section 24 of the Act could be filed by either of the spouses for grant of interim maintenance at any stage of the proceedings under the Act. Any proceedings under the Act appearing in Section 24 of the Act will also cover proceedings under Section 12(1)(a) and Section 25 of the Act also. Section 25 of the Act contemplates that an order for permanent alimony can be made at the time of passing of any decree under the Act or at any time thereafter. The jurisdiction to pass an order under Section 24 of the Act arises as soon as any proceedings are instituted under the Act. The condition for the exercise of jurisdiction under this section is that the applicant should not have any independent income sufficient for her or his support or necessary expenses of the proceedings. If the said condition is satisfied, the Court has jurisdiction and power to order the opposite party to pay expenses of the proceedings and also monthly maintenance of such sum as may be found reasonable. The grant of relief under this section is not dependent either on the merits of the petition or on the decision of any particular issue or upon the ultimate success or failure of the petition. The reason behind the rule in Section 24 of the Act for payment of pendents lite maintenance is that, where marriage is admitted, it is the duty of the affluent spouse to maintain the indigent person. The proceedings under this provision neither provides nor authorises the Court to enquire into allegations and counter-allegations made by the parties in their pleadings relating to the merits of the claim regarding the decree sought for in the petition filed before the Court, An order for maintenance pendente lite and costs of the proceedings can, as the initial words of the section clearly states be made in any proceedings under the Act, which would include proceedings for restitution of conjugal rights, decree for judicial separation, decree for divorce or nullity of void and voidable marriages. The amplest discretion is vested in the Court under Section 24 of the Act to grant interim maintenance even before considering any admission made by the party for consenting for a decree sought for by the injured spouse. Even if the party is not entitled to claim permanent alimony, she is certainly entitled to claim interim maintenance, till the completion of the proceedings. Therefore, in my opinion, the learned Family Court Judge has properly exercised his discretion vested in him in allowing the application filed by the wife, in spite of so-called admission made by the petitioner-husband in his written statement filed before the Court.
"3. The respondent submits that, it is incorrect on the part of the petitioner that, this respondent has been the cause for non-consummation of the marriage. It is presumable that the petitioner has been the contributory factor by evading no interest to consummate the marriage. The respondent submits that, non-consummation of the marriage being alleged by the petitioner necessarily cannot lead to a presumption that the respondent is impotent, it could equally be that the petitioner herself is not tuned to a capacity to consummate the marriage. A respectable relationship after marriage cannot result in a war to consummate a marriage but synchronization of like mind and to have the willingness to consummate matters more. This aspect of the matter is attributable to the petitioner who by her conduct continued to be a stranger in spite of initiatives taken by the respondent. Without further proof of the matter, this Court can pass a decree of nullity. Under these circumstances allegation of cruelty made against this respondent is absolutely false. Further cruelty is not a ground for the relief sought for in this petition".
2. Petitioner-husband, insofar as the request made in the application for grant of interim maintenance by the wife, by filing his detailed affidavit has requested the Court to dismiss the same with costs. Along with this affidavit, he has also made an application under Order 12, Rule 8 of the Code of Civil Procedure inter alia requesting the Court to direct the respondent to produce certain documents.
3. The learned Trial Judge of the Family Court by his order dated 28th day of February, 2002, has allowed the application filed by the wife for grant of interim maintenance and litigation expenses and has rejected the application filed by the petitioner to summon certain documents which are in the custody of respondent. The petitioner aggrieved by these orders is before this Court in a petition filed under Articles 226 and 227 of the Constitution of India.
4. The case of the petitioner before this Court is that the learned Family Court Judge has erred in not passing an order as envisaged under Order 12, Rule 6 of the Code of Civil Procedure, when there was a clear admission of the opposite party with regard to non-consummation of marriage. Secondly, the Court was not justified in allowing the application filed by the wife under Section 24 of the Act, when a decree of nullity of marriage could have been granted based on the admission made by the husband, which would disentitle a wife or the husband as the case may be from claiming alimony. The issues that are raised for consideration and decision of this Court are:
I. Whether the Court was wrong in not exercising jurisdiction vested in it under Order 12, Rule 6 based on the admission?
II. A decree of nullity is distinct from a decree of divorce creating disentitlement of alimony to a wife or husband as the case may be. Therefore, was the Court justified in allowing the application in Section 24 of the Hindu Marriage Act, when the ultimate relief even otherwise sought by the respondent can be granted forthwith?
5. In support of the aforesaid legal issues, the learned Counsel Sri Ravivarma Kumar for petitioner contends that it was brought to the notice of the Court with regard to the admission made by the petitioner relating to non-consummation of the marriage in the additional written statement filed and also a request had been made to exercise its powers under Order 12, Rule 6 of the Code of Civil Procedure to pass a judgment and decree granting declaration of nullity of marriage as sought for by the wife in her petition filed under Section 12(1)(a) of the Act instead of adjudicating the claim made in the application filed under Section 24 of the Act. Since that has not been done in the present case, the impugned order is bad and invalid. Secondly, it is contended that there was no impediment before the Court to pass a decree as requested by the wife on the admission made by the husband in his objection statement. Failure to pass such a decree and adjudicating on an application filed for grant of interim maintenance amounts to failure to exercise jurisdiction vested in it under Order 12, Rule 6 of the Code of Civil Procedure. Therefore, the impugned order is one without jurisdiction. At this stage itself, I should notice, that the learned Counsel did not argue on the correctness or otherwise of the order made by the learned Family Court Judge in quantifying interim maintenance and expenses of the proceedings payable by the petitioner to the respondent.
6. The learned Counsel further submits that it is not a must for the party to the lis to make any application under Order 12, Rule 6 of the Code of Civil Procedure in view of the language employed in the provision. The Court may on its own, where admissions of fact have been made either in the pleadings or otherwise, without waiting for determination of any other question between the parties, make or give such judgment as it may think fit, having regard to the admission of facts made by the parties. Since that has not been done, the Court has failed to exercise its jurisdiction vested in it and therefore, the impugned order is illegal. To be on the safer side, the learned Counsel has filed an application under Order 12, Rule 6 of the Code of Civil Procedure before this Court and the same is placed on record.
7. The learned Counsel in aid of his submission has relied upon the observations made by the Apex Court in the case of Smt. Chand Dhawan v. Jawaharlal Dhawan, the observation made by Rajasthan High Court in the case of Madan v. State of Rajasthan, (1993)1 DMC 71 (Raj.) the observations made by a Division Bench of this Court in the case of Ratnaprabha v. Shadaksharayya, 1982 (1) Kar. L.J. 54 the observations made by a learned Single Judge of this Court in the case of Smt. Nimbamma v. Smt. Rathnamma, 1999(5) Kar. L.J. 19 : AIR 1999 Kant. 226 and lastly the observations made by Punjab and Haryana High Court in the case of Devinder Singh v. Jaspal Kaur,
8. Smt. Geetha Menon, learned Counsel for the respondent ably justifies the impugned order and contends since the so-called admission made by the petitioner husband in his additional written statement filed before this Court was hedged with conditions and since the same was not clear and positive, the learned Family Court Judge is justified in not acting upon the admissions made by the petitioner and further refusing to exercise his jurisdiction under Order 12, Rule 6 of the Code of Civil Procedure and therefore, the learned Family Court Judge has not committed any jurisdictional error, which calls for interference of this Court in exercise of its supervisory jurisdiction. In aid of this submission, the learned Counsel relies upon the observations made by the Apex Court in the case of Balraj Taneja and Anr. v. Sunil Madan and Anr., . In the said decision, the Apex Court after
referring to the objects and reasons for amendment of Rule 6 of Order 12 of the Code of Civil Procedure was pleased to observe that 'for the Court to act upon the admission of a party at an interlocutory stage of the pleadings, it requires to be shown that the admission is unequivocal, clear and positive'. Further, the Court in the said decision has observed as under:
"21. There is yet another provision under which it is possible for the Court to pronounce judgment on admission. This is contained in Rule 6 of Order 12, which provides as under;
"6. Judgment on admissions.--(1) Where admissions of fact have been made either in the pleading or otherwise, whether orally or in writing, the Court may at any stage of the suit, either on the application of any party or of its own motion and without waiting for the determination of any other question between the parties, make such order or give such judgment as it may think fit, having regard to such admissions.
(2) Whenever a judgment is pronounced under Sub-rule (1) a decree shall be drawn up in accordance with the judgment and the decree shall bear the date on which the judgment was pronounced".
22. This rule was substituted in place of the old rule by the Code of Civil Procedure (Amendment) Act, 1976. The Objects and Reasons for this amendment arc given below:
"Under Rule 6, where a claim is admitted, the Court has jurisdiction to enter a judgment for the plaintiff and to pass a decree on the admitted claim. The object of the rule is to enable a party to obtain a speedy judgment at least to the extent of the relief to which, according to the admission of the defendant, the plaintiff is entitled. The rule is wide enough to cover oral admissions. The rule is being amended to clarity that oral admissions are also covered by the rule".
23. Under this rule, the Court can, at an interlocutory stage of the proceedings, pass a judgment on the basis of admissions made by the defendant. But before the Court can act upon the admission, it has to be shown that the admission is unequivocal, clear and positive. This rule empowers the Court to pass judgment and de- cree in respect of admitted claims pending adjudication of the disputed claims in the suit".
9. The questions now required to be seen are:
I. Whether the so-called admission made by the petitioner either in his statement of objection or in additional written statement is unequivocal, clear and positive? And whether the learned Family Court Judge was not justified in acting upon such admission and thereby has not exercised his jurisdiction vested in him by the Code?
II. Whether the learned Family Court Judge was justified in entertaining the application filed under Section 24 of the Act by the wife and granting interim maintenance in spite of request made by the husband to grant the decree sought for by the wife in her petition?
10. In the petition filed under Section 12(1)(a) of the Act, the wife seeks a declaration to declare that the marriage solemnised between herself and the respondent on 8-12-1997 as null and void, firstly, on the ground of non-consummation of the marriage since the respondent suffers from physical and psychological problems and therefore, it would not be possible for her to live with him as he has failed to discharge his marital obligations. Secondly, the non-consummation of her marriage has resulted in mental and physical cruelty and therefore, she has undergone severe mental, physical, emotional trauma due to the act of the respondent. In the petition, she also requests for permanent alimony in a sum of Rs. 30,00,000/- only.
11. The respondent in his objections filed denies all the assertions and allegations made by the petitioner in her petition. In that, he states that "it was the petitioner, who has constantly expressed her decision that she was not interested in any physical relationship with the respondent and as such the respondent did not believe in forcing the petitioner into any physical relationship. Therefore, this respondent apprehends serious doubt about the petitioner's capacity or intentions. The respondent further states "that he does not suffer from any physical or psychological problems" as alleged and is physically fit and is capable of consummating the marriage only if the petitioner would permit physical contact. The petitioner suffers from a serious psychological defect; in that she has in-built aversion to physical contact or sexual intercourse. She has deliberately avoided consummation of marriage even though this respondent is ready, capable and willing to discharge marital obligations. After denying all the allegations made in the petition, as if he is giving concession, the respondent requests the Court to dismiss the petition with costs but pass a decree of nullity of marriage not on the averments made in the petition relating to cruelty but on the basis of non-consummation of marriage without any entitlement regarding permanent alimony. The respondent repeats the assertion made in the statement of objections even in the additional written statement filed before this Court. Can this admission made by the petitioner herein could be construed as admission of facts? Can it be said that it is un- equivocal, clear and positive? The so-called admission made in the objections statement is not by accepting the assertions and allegations made by the wife in her petition but only the ground that there was non-consummation of marriage because the wife has deliberately avoided consummation of marriage even though petitioner was ready and willing to discharge his marital obligation. In my view, the admission made by the petitioner is neither unequivocal nor positive. Therefore, it cannot be said that the learned Family Court Judge has failed to exercise his jurisdiction vested in him under Order 12, Rule 6 of the Code of Civil Procedure.
12. To answer the second issue, the provisions of Hindu Marriage Act requires to be seen. Section 5 of the Act provides for conditions for a Hindu Marriage. Section 11 speaks of void marriages. A Hindu marriage solemnised after commencement of the Act, to be valid, must fulfill three of the conditions specified in Clauses (i), (iv) and (v) of Section 5 of the Act. The non-fulfillment of any one of these conditions renders a Hindu marriage null and void from its inception and either of the parties can obtain decree of nullity of marriage from the Court by filing a petition under Section 11 of the Act. A marriage, which is void ab initio, does not alter or affect the status of the parties nor does it create between them any rights or obligations, which normally arise from a valid marriage, except those rights which, are expressly saved under the Act. Parties to the lis can make an application under the provisions of the Act relating to maintenance pendente lite and costs and for permanent alimony.
13. Section 12 of the Act provides for voidable marriage. Among others, any marriage solemnised before or after the commencement of the Act may be annulled by a decree of nullity on the ground that the marriage has not been consummated owing to the impotence of the respondent, etc. A voidable marriage is one that will be regarded by every Court as a valid subsisting marriage until a decree is passed by a competent Court annulling the marriage.
14. Section 24 of the Act provides for temporary alimony. An application under Section 24 of the Act could be filed by either of the spouses for grant of interim maintenance at any stage of the proceedings under the Act. Any proceedings under the Act appearing in Section 24 of the Act will also cover proceedings under Section 12(1)(a) and Section 25 of the Act also. Section 25 of the Act contemplates that an order for permanent alimony can be made at the time of passing of any decree under the Act or at any time thereafter. The jurisdiction to pass an order under Section 24 of the Act arises as soon as any proceedings are instituted under the Act. The condition for the exercise of jurisdiction under this section is that the applicant should not have any independent income sufficient for her or his support or necessary expenses of the proceedings. If the said condition is satisfied, the Court has jurisdiction and power to order the opposite party to pay expenses of the proceedings and also monthly maintenance of such sum as may be found reasonable. The grant of relief under this section is not dependent either on the merits of the petition or on the decision of any particular issue or upon the ultimate success or failure of the petition. The reason behind the rule in Section 24 of the Act for payment of pendents lite maintenance is that, where marriage is admitted, it is the duty of the affluent spouse to maintain the indigent person. The proceedings under this provision neither provides nor authorises the Court to enquire into allegations and counter-allegations made by the parties in their pleadings relating to the merits of the claim regarding the decree sought for in the petition filed before the Court, An order for maintenance pendente lite and costs of the proceedings can, as the initial words of the section clearly states be made in any proceedings under the Act, which would include proceedings for restitution of conjugal rights, decree for judicial separation, decree for divorce or nullity of void and voidable marriages. The amplest discretion is vested in the Court under Section 24 of the Act to grant interim maintenance even before considering any admission made by the party for consenting for a decree sought for by the injured spouse. Even if the party is not entitled to claim permanent alimony, she is certainly entitled to claim interim maintenance, till the completion of the proceedings. Therefore, in my opinion, the learned Family Court Judge has properly exercised his discretion vested in him in allowing the application filed by the wife, in spite of so-called admission made by the petitioner-husband in his written statement filed before the Court.
15. Now coming back to the citations relied upon by the learned Counsel for petitioner is concerned, none of the decisions would support his thinking, since the fact situation in all those decisions were entirely different.
16. Since I have rejected both the issues canvassed by the learned Counsel for petitioner, petition should fail and accordingly, it is rejected. Rule discharged. In the facts and circumstances of the case, parties are directed to bear their own costs. Ordered accordingly.
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Karnataka High Court
Shiva Kumar T.A. vs Smt. Pushpa Rekha on 21 August, 2002
Equivalent citations: I (2003) DMC 119, ILR 2002 KAR 4212, 2002 (5) KarLJ 393
1. The relationship of the parties to this lis as husband and wife is not in dispute. Wife, respondent in this petition has filed a petition under Section 12(1)(a) of the Hindu Marriage Act, 1955 ('Act' for short), inter alia seeking the relief of declaration that their marriage solemnised on 8-12-1997 as null and void and for grant of permanent alimony of Rs. 30,00,000/- (Rupees Thirty Lakhs Only). During the pendency of the matrimonial case, the wife has also filed an application under Section 24 of the Act for grant of interim maintenance and litigation expenses. The husband, petitioner herein has filed his objection to the main petition requesting the Court to dismiss the petition with costs and pass a decree of nullity of the marriage as prayed for by the petitioner but not on the basis of the averments made in the petition relating to cruelty but on the basis of non-consummation of marriage without any entitlement to the petitioner regarding permanent alimony. Subsequently, he has also filed additional written statement and in that has requested the Court to pass a decree of nullity of marriage without further proof of the matter. In the additional written statement in paragraph 3, he states as under:"3. The respondent submits that, it is incorrect on the part of the petitioner that, this respondent has been the cause for non-consummation of the marriage. It is presumable that the petitioner has been the contributory factor by evading no interest to consummate the marriage. The respondent submits that, non-consummation of the marriage being alleged by the petitioner necessarily cannot lead to a presumption that the respondent is impotent, it could equally be that the petitioner herself is not tuned to a capacity to consummate the marriage. A respectable relationship after marriage cannot result in a war to consummate a marriage but synchronization of like mind and to have the willingness to consummate matters more. This aspect of the matter is attributable to the petitioner who by her conduct continued to be a stranger in spite of initiatives taken by the respondent. Without further proof of the matter, this Court can pass a decree of nullity. Under these circumstances allegation of cruelty made against this respondent is absolutely false. Further cruelty is not a ground for the relief sought for in this petition".
2. Petitioner-husband, insofar as the request made in the application for grant of interim maintenance by the wife, by filing his detailed affidavit has requested the Court to dismiss the same with costs. Along with this affidavit, he has also made an application under Order 12, Rule 8 of the Code of Civil Procedure inter alia requesting the Court to direct the respondent to produce certain documents.
3. The learned Trial Judge of the Family Court by his order dated 28th day of February, 2002, has allowed the application filed by the wife for grant of interim maintenance and litigation expenses and has rejected the application filed by the petitioner to summon certain documents which are in the custody of respondent. The petitioner aggrieved by these orders is before this Court in a petition filed under Articles 226 and 227 of the Constitution of India.
4. The case of the petitioner before this Court is that the learned Family Court Judge has erred in not passing an order as envisaged under Order 12, Rule 6 of the Code of Civil Procedure, when there was a clear admission of the opposite party with regard to non-consummation of marriage. Secondly, the Court was not justified in allowing the application filed by the wife under Section 24 of the Act, when a decree of nullity of marriage could have been granted based on the admission made by the husband, which would disentitle a wife or the husband as the case may be from claiming alimony. The issues that are raised for consideration and decision of this Court are:
I. Whether the Court was wrong in not exercising jurisdiction vested in it under Order 12, Rule 6 based on the admission?
II. A decree of nullity is distinct from a decree of divorce creating disentitlement of alimony to a wife or husband as the case may be. Therefore, was the Court justified in allowing the application in Section 24 of the Hindu Marriage Act, when the ultimate relief even otherwise sought by the respondent can be granted forthwith?
5. In support of the aforesaid legal issues, the learned Counsel Sri Ravivarma Kumar for petitioner contends that it was brought to the notice of the Court with regard to the admission made by the petitioner relating to non-consummation of the marriage in the additional written statement filed and also a request had been made to exercise its powers under Order 12, Rule 6 of the Code of Civil Procedure to pass a judgment and decree granting declaration of nullity of marriage as sought for by the wife in her petition filed under Section 12(1)(a) of the Act instead of adjudicating the claim made in the application filed under Section 24 of the Act. Since that has not been done in the present case, the impugned order is bad and invalid. Secondly, it is contended that there was no impediment before the Court to pass a decree as requested by the wife on the admission made by the husband in his objection statement. Failure to pass such a decree and adjudicating on an application filed for grant of interim maintenance amounts to failure to exercise jurisdiction vested in it under Order 12, Rule 6 of the Code of Civil Procedure. Therefore, the impugned order is one without jurisdiction. At this stage itself, I should notice, that the learned Counsel did not argue on the correctness or otherwise of the order made by the learned Family Court Judge in quantifying interim maintenance and expenses of the proceedings payable by the petitioner to the respondent.
6. The learned Counsel further submits that it is not a must for the party to the lis to make any application under Order 12, Rule 6 of the Code of Civil Procedure in view of the language employed in the provision. The Court may on its own, where admissions of fact have been made either in the pleadings or otherwise, without waiting for determination of any other question between the parties, make or give such judgment as it may think fit, having regard to the admission of facts made by the parties. Since that has not been done, the Court has failed to exercise its jurisdiction vested in it and therefore, the impugned order is illegal. To be on the safer side, the learned Counsel has filed an application under Order 12, Rule 6 of the Code of Civil Procedure before this Court and the same is placed on record.
7. The learned Counsel in aid of his submission has relied upon the observations made by the Apex Court in the case of Smt. Chand Dhawan v. Jawaharlal Dhawan, the observation made by Rajasthan High Court in the case of Madan v. State of Rajasthan, (1993)1 DMC 71 (Raj.) the observations made by a Division Bench of this Court in the case of Ratnaprabha v. Shadaksharayya, 1982 (1) Kar. L.J. 54 the observations made by a learned Single Judge of this Court in the case of Smt. Nimbamma v. Smt. Rathnamma, 1999(5) Kar. L.J. 19 : AIR 1999 Kant. 226 and lastly the observations made by Punjab and Haryana High Court in the case of Devinder Singh v. Jaspal Kaur,
8. Smt. Geetha Menon, learned Counsel for the respondent ably justifies the impugned order and contends since the so-called admission made by the petitioner husband in his additional written statement filed before this Court was hedged with conditions and since the same was not clear and positive, the learned Family Court Judge is justified in not acting upon the admissions made by the petitioner and further refusing to exercise his jurisdiction under Order 12, Rule 6 of the Code of Civil Procedure and therefore, the learned Family Court Judge has not committed any jurisdictional error, which calls for interference of this Court in exercise of its supervisory jurisdiction. In aid of this submission, the learned Counsel relies upon the observations made by the Apex Court in the case of Balraj Taneja and Anr. v. Sunil Madan and Anr., . In the said decision, the Apex Court after
referring to the objects and reasons for amendment of Rule 6 of Order 12 of the Code of Civil Procedure was pleased to observe that 'for the Court to act upon the admission of a party at an interlocutory stage of the pleadings, it requires to be shown that the admission is unequivocal, clear and positive'. Further, the Court in the said decision has observed as under:
"21. There is yet another provision under which it is possible for the Court to pronounce judgment on admission. This is contained in Rule 6 of Order 12, which provides as under;
"6. Judgment on admissions.--(1) Where admissions of fact have been made either in the pleading or otherwise, whether orally or in writing, the Court may at any stage of the suit, either on the application of any party or of its own motion and without waiting for the determination of any other question between the parties, make such order or give such judgment as it may think fit, having regard to such admissions.
(2) Whenever a judgment is pronounced under Sub-rule (1) a decree shall be drawn up in accordance with the judgment and the decree shall bear the date on which the judgment was pronounced".
22. This rule was substituted in place of the old rule by the Code of Civil Procedure (Amendment) Act, 1976. The Objects and Reasons for this amendment arc given below:
"Under Rule 6, where a claim is admitted, the Court has jurisdiction to enter a judgment for the plaintiff and to pass a decree on the admitted claim. The object of the rule is to enable a party to obtain a speedy judgment at least to the extent of the relief to which, according to the admission of the defendant, the plaintiff is entitled. The rule is wide enough to cover oral admissions. The rule is being amended to clarity that oral admissions are also covered by the rule".
23. Under this rule, the Court can, at an interlocutory stage of the proceedings, pass a judgment on the basis of admissions made by the defendant. But before the Court can act upon the admission, it has to be shown that the admission is unequivocal, clear and positive. This rule empowers the Court to pass judgment and de- cree in respect of admitted claims pending adjudication of the disputed claims in the suit".
9. The questions now required to be seen are:
I. Whether the so-called admission made by the petitioner either in his statement of objection or in additional written statement is unequivocal, clear and positive? And whether the learned Family Court Judge was not justified in acting upon such admission and thereby has not exercised his jurisdiction vested in him by the Code?
II. Whether the learned Family Court Judge was justified in entertaining the application filed under Section 24 of the Act by the wife and granting interim maintenance in spite of request made by the husband to grant the decree sought for by the wife in her petition?
10. In the petition filed under Section 12(1)(a) of the Act, the wife seeks a declaration to declare that the marriage solemnised between herself and the respondent on 8-12-1997 as null and void, firstly, on the ground of non-consummation of the marriage since the respondent suffers from physical and psychological problems and therefore, it would not be possible for her to live with him as he has failed to discharge his marital obligations. Secondly, the non-consummation of her marriage has resulted in mental and physical cruelty and therefore, she has undergone severe mental, physical, emotional trauma due to the act of the respondent. In the petition, she also requests for permanent alimony in a sum of Rs. 30,00,000/- only.
11. The respondent in his objections filed denies all the assertions and allegations made by the petitioner in her petition. In that, he states that "it was the petitioner, who has constantly expressed her decision that she was not interested in any physical relationship with the respondent and as such the respondent did not believe in forcing the petitioner into any physical relationship. Therefore, this respondent apprehends serious doubt about the petitioner's capacity or intentions. The respondent further states "that he does not suffer from any physical or psychological problems" as alleged and is physically fit and is capable of consummating the marriage only if the petitioner would permit physical contact. The petitioner suffers from a serious psychological defect; in that she has in-built aversion to physical contact or sexual intercourse. She has deliberately avoided consummation of marriage even though this respondent is ready, capable and willing to discharge marital obligations. After denying all the allegations made in the petition, as if he is giving concession, the respondent requests the Court to dismiss the petition with costs but pass a decree of nullity of marriage not on the averments made in the petition relating to cruelty but on the basis of non-consummation of marriage without any entitlement regarding permanent alimony. The respondent repeats the assertion made in the statement of objections even in the additional written statement filed before this Court. Can this admission made by the petitioner herein could be construed as admission of facts? Can it be said that it is un- equivocal, clear and positive? The so-called admission made in the objections statement is not by accepting the assertions and allegations made by the wife in her petition but only the ground that there was non-consummation of marriage because the wife has deliberately avoided consummation of marriage even though petitioner was ready and willing to discharge his marital obligation. In my view, the admission made by the petitioner is neither unequivocal nor positive. Therefore, it cannot be said that the learned Family Court Judge has failed to exercise his jurisdiction vested in him under Order 12, Rule 6 of the Code of Civil Procedure.
12. To answer the second issue, the provisions of Hindu Marriage Act requires to be seen. Section 5 of the Act provides for conditions for a Hindu Marriage. Section 11 speaks of void marriages. A Hindu marriage solemnised after commencement of the Act, to be valid, must fulfill three of the conditions specified in Clauses (i), (iv) and (v) of Section 5 of the Act. The non-fulfillment of any one of these conditions renders a Hindu marriage null and void from its inception and either of the parties can obtain decree of nullity of marriage from the Court by filing a petition under Section 11 of the Act. A marriage, which is void ab initio, does not alter or affect the status of the parties nor does it create between them any rights or obligations, which normally arise from a valid marriage, except those rights which, are expressly saved under the Act. Parties to the lis can make an application under the provisions of the Act relating to maintenance pendente lite and costs and for permanent alimony.
13. Section 12 of the Act provides for voidable marriage. Among others, any marriage solemnised before or after the commencement of the Act may be annulled by a decree of nullity on the ground that the marriage has not been consummated owing to the impotence of the respondent, etc. A voidable marriage is one that will be regarded by every Court as a valid subsisting marriage until a decree is passed by a competent Court annulling the marriage.
14. Section 24 of the Act provides for temporary alimony. An application under Section 24 of the Act could be filed by either of the spouses for grant of interim maintenance at any stage of the proceedings under the Act. Any proceedings under the Act appearing in Section 24 of the Act will also cover proceedings under Section 12(1)(a) and Section 25 of the Act also. Section 25 of the Act contemplates that an order for permanent alimony can be made at the time of passing of any decree under the Act or at any time thereafter. The jurisdiction to pass an order under Section 24 of the Act arises as soon as any proceedings are instituted under the Act. The condition for the exercise of jurisdiction under this section is that the applicant should not have any independent income sufficient for her or his support or necessary expenses of the proceedings. If the said condition is satisfied, the Court has jurisdiction and power to order the opposite party to pay expenses of the proceedings and also monthly maintenance of such sum as may be found reasonable. The grant of relief under this section is not dependent either on the merits of the petition or on the decision of any particular issue or upon the ultimate success or failure of the petition. The reason behind the rule in Section 24 of the Act for payment of pendents lite maintenance is that, where marriage is admitted, it is the duty of the affluent spouse to maintain the indigent person. The proceedings under this provision neither provides nor authorises the Court to enquire into allegations and counter-allegations made by the parties in their pleadings relating to the merits of the claim regarding the decree sought for in the petition filed before the Court, An order for maintenance pendente lite and costs of the proceedings can, as the initial words of the section clearly states be made in any proceedings under the Act, which would include proceedings for restitution of conjugal rights, decree for judicial separation, decree for divorce or nullity of void and voidable marriages. The amplest discretion is vested in the Court under Section 24 of the Act to grant interim maintenance even before considering any admission made by the party for consenting for a decree sought for by the injured spouse. Even if the party is not entitled to claim permanent alimony, she is certainly entitled to claim interim maintenance, till the completion of the proceedings. Therefore, in my opinion, the learned Family Court Judge has properly exercised his discretion vested in him in allowing the application filed by the wife, in spite of so-called admission made by the petitioner-husband in his written statement filed before the Court.
15. Now coming back to the citations relied upon by the learned Counsel for petitioner is concerned, none of the decisions would support his thinking, since the fact situation in all those decisions were entirely different.
16. Since I have rejected both the issues canvassed by the learned Counsel for petitioner, petition should fail and accordingly, it is rejected. Rule discharged. In the facts and circumstances of the case, parties are directed to bear their own costs. Ordered accordingly.
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