E.A. Benny vs Raichel Bindu on 29 January, 1999

    E.A. Benny vs Raichel Bindu on 29/1/1999

JUDGMENT

   Usha, J.

   1. Challenge in this appeal is against the order passed by the learned single
Judge granting alimony pendents lite to the wife under Section 36 of the Indian
Divorce Act, 1869. O.P. (Div.) 10285/95 was filed by the husband under Sections
18 and 19 of the above Act for a declaration that the marriage between the
petitioner and the respondent is null and void on the ground of fraud. Wife
claimed alimony pendente lite at the rate of Rs. 1,500/- p.m. The claim was
opposed by the husband contending that the application is not maintainable under
Section 36. Learned single Judge did not accept the objection and granted the
wife, interim alimony at the rate of Rs. 750/- p.m. Aggrieved by the above,
husband has come up in appeal.

   2. Mainly, two contentions are raised by learned counsel for the appellant.
According to him, a petition for alimony pendente lite at the instance of the
respondent in an application filed under Sections 18 and 19 of the Indian
Divorce Act, 1869 is not maintainable.

   3. Section 36of the Indian Divorce Act, 1869 reads as follows :

     "36. Alimony pendente lite :-- In any suit under this Act, whether it be
instituted by a husband or a wife, and whether or not she has obtained an order
of protection, the wife may present a petition for alimony pending the suit.

     Such petition shall be served on the husband; and the Court, on being
satisfied of the truth of the statements therein contained, may make such order
on the husband for payment to the wife of alimony pending the suit as it may
deem just:

     Provided that alimony pending the suit shall in no cases exceed one-fifth
of the husband's average net income for the three years next preceding the date
of the order, and shall continue, in case of a decree for dissolution of
marriage or of nullity of marriage, until the decree is made absolute or is
confirmed, as the case may be."

   Learned counsel for the appellant would submit that unlike in the case of a
petition under Section 10 for dissolution of marriage, if a petition under
Sections 18 and 19 seeking a decree of nullity of marriage is allowed, the
marriage is set at naught from the very beginning and if that be so, the
respondent cannot be described as a wife at all. It is necessary that she should
be a wife for the purpose of maintaining a petition under Section 36. In the
case of a petition under Section 10 for dissolution of marriage, the marriage
will be dissolved only from the date of the order and therefore, during the
pendency of the proceedings, the respondent would be a wife coming under Section
36. In this case, since the petition was filed under Sections 18 and 19 of the
Indian Divorce Act, no application under Section 36 could be maintained at the
instance of the respondent.

   4. Secondly, it was contended by the learned counsel for the appellant that
the amount of interim alimony granted is excessive. In support of his first
contention, reliance was placed on a decision of this Court in Amina v. Hassan
Koya, 1985 Ker LT 596. In the above case, parties were Muslims. The question
that came up for consideration was whether a petition under Section 125 of the
Criminal P.C. was maintainable at the instance of a woman whose marriage was
found invalid as she was pregnant when she contracted the marriage with the
respondent. Trial Court had awarded maintenance which was reversed by the
District Court. On a revision by the petitioner, this Court took the view that
she is not entitled to claim maintenance under Section 125, Cri. P.C. as she
would never become the wife of the respondent, if the marriage was not valid. In
such a case, she could never claim to be a woman who has been divorced by or has
obtained a divorce from her husband because they were not, at any time, husband
and wife.

   5. We do not find any merit in both the contentions raised by the appellant.
The answer to the first contention raised by the appellant regarding the
maintainability of the petition by the respondent under Section 36 is available
in the provisions of the section itself. Apart from giving the right to the wife
to file an application for alimony pendente lite 'in any suit' under the Act,
the proviso makes it very clear that such an application is maintainable even in
a petition filed under Sections 18 and 19. The proviso provides that the alimony
granted under Section 36 shall continue in case of a decree for dissolution of
marriage or of nullity of marriage until the decree is made absolute or is
confirmed, as the case may be. It is therefore very clear that even in an
application under Sections 18 and 19 seeking a declaration that the marriage is
null and void, alimony pendente lite can be granted. A decree for nullity of
marriage has to be confirmed by the High Court as per the provisions of Section
20. The alimony granted pendente lite will continue until the decree is
confirmed. Therefore, we have no hesitation to hold that an application under
Section 36 is maintainable at the instance of the respondent in a petition filed
by a husband under Sections 18 and 19 of the Indian Divorce Act, 1869.

   6. Now, coming to the question of quantum of the interim alimony granted
also, we find no reason to interfere with the order passed by the learned single
Judge. Even though, the wife claimed that the husband has been getting a monthly
salary of Rs. 7,000/-, there was no evidence adduced in support of the claim.
Appellant-husband produced a certificate from the Company in which he is
employed showing that his normal monthly salary, including D.A. and allowances,
would come to Rs. 3062/-. It was also stated therein that in addition to the
above, he earns production incentive which will vary every month, depending upon
the production. He did not disclose as to how much he will be receiving as
production incentive, even though, this was within his knowledge under Section
36 of the Indian Divorce Act, alimony pendente lite should not exceed 1/5th of
the husband's average net income. Learned single Judge thus granted Rs. 750/-
p.m., taking into consideration certain amount which the husband would have
received as production incentive also. We are in full agreement with the above
view taken by the learned single Judge.

   7. In the result, the appeal fails and it stands dismissed.