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.