lite' which means pending litigation or during litigation,
that is for a period from the date of commencement of
litigation till it is concluded. This principle of temporary
alimony is a concept of economic guardianship to administer
justice either to the wife or to the husband, which is
extended to support either of them during the pendency
of the proceeding alone. Analysing the Section, it is found
that the right of equality is protected by the parliament
and the question of validity of the marriage will not be a
ground for denying such relief to wife or husband.
Therefore, we conclude that an application for pendente
lite maintenance can be filed in any proceedings under the
Hindu Marriage Act 1955 (Sections 9 to 13) and any
application made after disposal of the main petition has no
independent existence. In short, the primary responsibility
of the Family Court is that before passing the decree in
the main petition, it has to dispose of the interim
maintenance application under Section 24 of the Act
exercising its discretionary powers. While exercising such
discretionary power, the Court has to follow sound judicial
principles and has to consider the economic condition of
both parties. Here, the main petition is pending in the
Family Court, Thiruvananthapuram. While so, the
observation of the Family Court that petition for
maintenance pendente lite cannot be considered at this
stage, since the respondent contended that there is no
consummation of marriage, is per-se illegal and absolutely
unsustainable. An application pending under Section 12 is
not a ground to refuse interim maintenance to the wife.
Therefore, Ext.P4 order is liable to be set aside.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
MR.JUSTICE V.K.MOHANAN
&
MR. JUSTICE P.D.RAJAN
WEDNESDAY, THE 25TH DAY OF FEBRUARY 2015/
OP (FC).No. 502 of 2014 (R)
----------------------------
R.C.SHEEJAKUMARI
Vs
PRAVEEN.S.R.
Citation;AIR 2015 kerala 135
This original petition is filed under Article 226 of the
Constitution of India to quash Ext.P4 order in
I.A.No.3035/2013 in O.P.No.1896/2012 of Family Court,
Thiruvananthapuram on the ground that it was passed
without properly appreciating the law illustrated under
Section 24 of the Hindu Marriage Act, 1955. The petitioner
is the wife of one Praveen, who filed O.P.No.1896/2010 in the
Family Court, Thiruvananthapuram for getting maintenance
from her husband. She also filed another application for
getting interim maintenance from him, which was dismissed
by the learned Judge, on the ground that non-consummation
of the marriage is a sufficient ground for nullity of
marriage and the question of alimony cannot be
considered at this stage.
2. The marriage between the petitioner and the
respondent was solemnized on 16.5.2010 and they resided
together as husband and wife till 19.5.2011. Subsequently,
the respondent deserted the petitioner and living
separately. In the circumstances, the petitioner
approached the Family Court with the above O.P. The
husband in the trial Court contended that the marriage
was not consummated since the petitioner disclosed that
she had an affair with another person and deserted him.
Now he is working in SP Fort Hospital, Thiruvananthapuram
as a Driver and living with limited source of income,
therefore, she is not entitled to get maintenance.
3. The learned Judge of the Family Court
considering the rival contentions put forward by both
counsel, observed that non-consummation of the marriage
is sufficient ground for nullity of marriage, hence the
question of alimony cannot be considered at this stage and
dismissed the application accordingly.
4. According to Section 24 of the Act, where in any
proceeding under the above Act, it appears to the Court
that either the wife or the husband, as the case may be,
has no independent income sufficient for her or his
support and the necessary expenses of the proceeding, it
may, on the application of the wife or the husband, order
the respondent to pay to the petitioner the expenses of
the proceeding, and monthly during the proceeding such
sum as, having regard to the petitioner's own income and
the income of the respondent, it may seem to the court to
be reasonable. This provision of interim maintenance is
provided in the above Section to meet the immediate need
of the petitioner. This is because in granting maintenance
there is a practice of regular enquiry after completing the
procedural formalities, which will cause considerable delay
in disbursing it. The basis of the claim of interim
maintenance is that the claimant has no independent
income to support herself or himself.
5. We are not in a position to approve the
conclusion reached by the Court below. The wife is
entitled to get maintenance pendente lite and expenses of
proceedings as per Section 24 of the Hindu Marriage Act.
Non-consummation is not a ground for denying maintenance
under Section 24 of the Hindu Marriage Act, but it can be
considered only for limited purpose mentioned under
Section 12 of the Hindu Marriage Act. Here, the
petitioner contended that her husband is working in SP
Fort Hospital as a Driver and getting monthly salary of
15,000/-. and she has no income for her livelihood.
Without considering the economic aspect, the learned
Judge of the Family Court dismissed Ext.P2 petition for
interim maintenance. But, the respondent urged that there
was desertion from the side of the wife, after that there
was an arrangement to file a joint petition under Section
13B of the Hindu Marriage Act, in the Family Court, but
the wife declined to co-operate in filing a joint petition.
Now, she approached this Court with this petition after
suppressing the earlier joint petition, therefore, she is
not entitled to get maintenance at this stage.
6. It is admitted by both parties that the main
petition is pending in the Family Court and final decision
has not been taken in that matter. This Court in Sudheesh
Babu v. Sherly [2009 (4) KLT 542] held that "it is very
evident that S.24 applies when any proceeding under the
Act is pending and no exception can be carved out for
proceedings under S.12 of the Hindu Marriage Act. It is
true that S.24 employs the expression "wife" and
"husband". The mere fact that marriage already
solemnised is sought to be avoided by declaration of nullity
under S.12 cannot militate against the status of the
spouses as husband and wife until such a declaration of
nullity is granted. The status of the husband and wife for
the purpose of S.24 has been achieved by the spouses by
such solemnization. The mere fact that the said
relationship is sought to be annulled by initiation of the
proceedings under S.12 of the Hindu Marriage Act cannot
justify a contention that the respondent herein is not a
"wife" to whom alone S.24 can apply. The objection raised
on both grounds that S.24 is not applicable to the
proceedings under S.12 and that the petitioner cannot be
said to be a husband coming within the sweep of that
expression in S.24 of the Hindu Marriage Act, cannot be
accepted."
7. The expression used under S.24 is 'pendente
lite' which means pending litigation or during litigation,
that is for a period from the date of commencement of
litigation till it is concluded. This principle of temporary
alimony is a concept of economic guardianship to administer
justice either to the wife or to the husband, which is
extended to support either of them during the pendency
of the proceeding alone. Analysing the Section, it is found
that the right of equality is protected by the parliament
and the question of validity of the marriage will not be a
ground for denying such relief to wife or husband.
Therefore, we conclude that an application for pendente
lite maintenance can be filed in any proceedings under the
Hindu Marriage Act 1955 (Sections 9 to 13) and any
application made after disposal of the main petition has no
independent existence. In short, the primary responsibility
of the Family Court is that before passing the decree in
the main petition, it has to dispose of the interim
maintenance application under Section 24 of the Act
exercising its discretionary powers. While exercising such
discretionary power, the Court has to follow sound judicial
principles and has to consider the economic condition of
both parties. Here, the main petition is pending in the
Family Court, Thiruvananthapuram. While so, the
observation of the Family Court that petition for
maintenance pendente lite cannot be considered at this
stage, since the respondent contended that there is no
consummation of marriage, is per-se illegal and absolutely
unsustainable. An application pending under Section 12 is
not a ground to refuse interim maintenance to the wife.
Therefore, Ext.P4 order is liable to be set aside.
In the result, Ext.P4 order is set aside by invoking
jurisdiction under Article 226 of the Constitution of India
and the matter is remitted to the Family Court,
Thiruvananthapuram for fresh consideration. The learned
Judge of the Family Court shall consider the income of the
wife and the husband and dispose the above petition for
interim maintenance as per law.
V.K. MOHANAN, JUDGE.
P.D. RAJAN, JUDGE.
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