Friday 5 June 2015

Whether interim maintenance can be denied to wife on ground of non consummation of marriage?

 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 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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