Sushila Viresh Chhadva v. Viresh Nagshi Chhadva .

1. By this petition under Article 227 of the Constitution, the petitioner-wife has taken exception to an order passed by the Family Court, Bombay, rejecting the petitioner's application for interim alimony and expenses of the litigation.

2. Briefly, the facts leading to this petition are:

The petitioner and the respondent got married on February 6, 1991 at Bombay according to Hindu Vedic Rites. Shortly after the marriage, the petitioner was operated for major ovarian tumor and her right ovary was removed. The respondent thereafter filed a petition in the Family Court for a decree of nullity of marriage. The respondent alleged that the parties stayed together just for one day after the marriage and then the petitioner started complaining about severe pains in her stomach thereafter. The respondent contended that the tumor was malignant and the petitioner's left ovary is affected by cancer and that there is no chance of her conception and bearing a child. According to the respondent, the petitioner and her parents were well aware of this tumor, which was of a big size, and they intentionally concealed this fact from the petitioner and his family members to get her married. The respondent alleged that the tumor was very big and she was operated within eight days from the marriage, which goes to show that the operation and the removal of the tumor was urgently required. There was no possibility, according to the respondent, of the tumor of such a big size being developed after marriage within eight days. The respondent contended that the petitioner was already undergoing the treatment for the same and this fact was deliberately concealed from him.

3. The petitioner appeared in the Family Court in pursuance of the summons issued to her. She took out Interim Application No. 802 of 1993 for interim alimony at the rate of Rs. 10,000/- per month and expenses of the litigation. The application was opposed by the respondent mainly on the ground that the marriage was clearly void. It is contended that in view of the deception practised by the petitioner, she is not entitled to interim alimony.

4. The Family Court rejected the application by passing a cryptic order. The reasons given for rejecting the petitioner's application are in paragraph 6 of the order and they are reproduced as follows:

“In the light of all the above circumstances and that the petitioner (sic) is for nullity. I am not inclined to grant any interim relief to the respondent without going into the merit of the case. The fact of operation is admitted by the respondent and hence the case will have to be decided on merits after leading of the evidence.”

5. In my considered view, the impugned order of the Family Court is not sustainable in law. In the first place, the Family Court has proceeded on an erroneous assumption that the wife is not entitled to interim alimony because the husband has sued for nullity of marriage. The right of a wife for maintenance is an incident of the status or estate of matrimony. Section 24 of the Hindu Marriage Act, which provides for maintenance pendente lite and expenses of proceedings, clearly applies to all proceedings under the Act. An order for maintenance pendente lite and costs of the proceedings can, as the initial words of the section clearly state, be made in any proceeding under the Act, viz. for restitution of conjugal rights, judicial separation, divorce or nullity of void and voidable marriage.

6. When a fact of marriage is acknowledged or proved alimony follows subject of course to the discretion of the Court in the matter having regard to the means of the parties and it would be no answer to the claim for maintenance pendente lite that the marriage was void ipso jure or was voidable. The Family Court was not right in taking into consideration the allegation of fraud and deception made in the petition for the purpose of deciding the prayer of interim alimony. The fact that there is a strong possibility of the marriage being declared as a nullity is no ground for declining even the basic right to claim interim alimony and expenses of the litigation. The Family Court was clearly wrong in postponing the determination of interim alimony till the trial of the main petition. The trial Court cannot postpone its decision on the application for interim maintenance and costs till the disposal of the main issue in the substantive matter.

7. In enacting section 24, a special provision is made for ordering interim maintenance and the expenses of litigation to be provided for the contesting husband and wife if he or she had no independent sufficient income. The very purpose of an order under section 24 would be frustrated if the matter of granting interim maintenance and of providing the requisite expenses for the conduct of the proceedings itself is deferred till the final stage of the proceeding. The direction for interim alimony and expenses of litigation under section 24 is one of urgency and it must be decided as soon as it is raised and then only the other matters in controversy can be gone into. The object of section 24 is to provide a monthly income and expenses of the litigation to an indigent spouse to enable it to prosecute or defend the proceeding under the Act and the law sees that nobody is disabled from prosecuting or defending the matrimonial case by starvation or lack of funds. It is true that the Court exercises wide discretion in the matter of granting maintenance pendente lite, but the discretion is judicial and not arbitrary and capricious. In my opinion, therefore, the Family Court was in error in rejecting the interim application of the wife.

8. In the result, the petition succeeds. The impugned order is quashed and set aside. The Family Court directed to decide application for interim alimony and expenses of litigation afresh after giving an opportunity of hearing both the parties. The Family Court shall endeavour to dispose of the application expeditiously and in any event, within eight weeks from today. Pending application, the respondent is directed to deposit within two weeks from today an ad hoc maintenance at the rate of Rs. 1,000/- per month from the date of application. Needless to say that the petitioner will be at liberty to withdraw the said amount. It is clarified that the amount of Rs. 1,000/- is fixed as and by way of ad hoc amount without prejudice to the rights and contentions of the parties. No order as to costs.

Certified copy expedited.

Petition allowed.