Giddi Gowthami @ Jyoti vs Giddi Samuel on 19 November, 2004

    Giddi Gowthami @ Jyoti vs Giddi Samuel on 19/11/2004

ORDER

   B. Seshasayana Reddy, J.

   1. This Civil Revision Petition is directed against the Order dated 27-7-2004
passed in I.A.No. 162 of 2001 in O.P.No. 790 of 2003 on the file of the District
Judge, Vizianagaram, whereby the learned District Judge refused to grant interim
alimony.

   2. The petitioner is the wife of the respondent. The respondent herein filed
O.P.No. 790 of 2003 for restitution of conjugal rights under Section 32 of the
Indian Divorce Act, 1869 (for short 'the Act'). The petitioner/wife filed
I.A.No. 162 of 2001 under Section 36 of the Act for grant of interim alimony at
the rate of Rs. 1,000/-(rupees one thousand only) per month and legal expenses
of Rs. 2,000/- (rupees two thousand only) pending the main proceedings. The
respondent/husband filed counter resisting the application. It is averred in the
counter that the petitioner filed M.C.No. 2 of 2003 on the file of the Judicial
First Class Magistrate, Vizianagaram, claiming maintenance and the same was
ended in dismissal on 25-2-2004, and therefore the petitioner/wife is not
entitled for interim alimony pending disposal of the main proceedings in O.P.No.
790 of 2003.

   3. The learned District Judge on considering the material brought on record
and on hearing both parties, refused to pass any Order with regard to interim
alimony and directed both the parties to get ready for disposal of the main
petition. The operative portion of the Order passed by the learned District
Judge, Vizianagaram, reads thus:

     "Perused the record. The respondent stated that the petitioner resided only
for two months after marriage and that subsequently, she never, obliged to lead
conjugal life with him. He further stated that the petitioner resorted to filing
of some petition or other against the petitioner. He stated that the Maintenance
Case was dismissed on merits. He further stated that this is a case where the
facts and circumstances have to be appreciated on merits. He prayed to dismiss
the petition. Having gone through the respective contentions of both parties and
hearing the learned counsel, I feel that the material available on record is not
sufficient to come to a just decision in either way. Added to this, the learned
Advocate for the respondent expressed his readiness for disposal of the main
petition on merits. In view of the above attendant circumstances and background
of the case, I feel that justice will be done to both parties by taking up the
main O.P. itself. In view of the above, I direct both the parties to get ready
for disposal of the main petition. Call this petition along with main petition.

     In the result, the petition is ordered to be called along with main Divorce
Petition, Both the parties are directed to get ready for disposal of main
divorce petition."

   4. Assailing the Order passed in I.A.No. 162 of 2001 in O.P.No. 790 of 2003,
the petitioner/wife filed this Civil Revision Petition.

   5. The learned counsel appearing for the petitioner/wife contends that the
Order of the learned District Judge, Vizianagaram, to tag on the application
filed by the petitioner/wife claiming interim maintenance and legal expenses to
the main proceedings is against the provisions of Section 36 of the Act and
therefore the impugned Order is required to be set aside.

   6. In support of his submissions, he placed reliance on the decision of
Kerala High Court in E.C. Benny v. Raichel Bindu, AIR 1999 Kerala 251 and the
decision of the Delhi High Court in Mrs. Alice Baldev Singh v. Baldev Singh, I
(2002) DMC 357.

   7. In the first cited decision, the Kerala High Court held that under Section
36 of the Act, right is given to a wife to file an application for alimony
pendente lite 'in any suit' under the Act. The proviso to Section 36 makes it
very clear that such an application is maintainable even in a petition filed
under Sections 18 and 19. The proviso further 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, it could be held that an application under Section 36 is
maintainable at the instance of the wife in a petition filed by a husband under
Sections 18 and 19 of the Act.

   8. In the second cited decision, the Delhi High Court held that pendente lite
alimony may be varied, enhanced, reduced or even suspended during pendency of
suit or during period when such Order remains in operation, depending upon the
change in the factors which are counted for determination of pendente lite
alimony.

   9. The learned counsel appearing for the respondent-husband submits that the
petitioner-wife is not entitled to claim any interim alimony pending disposal of
the main proceedings since her claim to grant maintenance has been negatived by
the competent Court in M.C.No. 2 of 2003.

   10. As seen from the main order, the learned Judge has not disposed of the
application filed by the petitioner/wife claiming interim alimony pending main
proceedings, but ordered to call along with the main petition. Of course, it can
be seen from the Order as to what made the learned Judge to pass such an order,
probably, the learned Judge was under the impression that the petitioner wife
was not entitled to claim alimony in view of the finding recorded by the
competent Court in M.C. No. 2 of 2003.

   11. At this juncture I may refer Section 36 of the Act which reads thus:

     "In any suit under this Act, whether it is 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 expenses of the proceedings and 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 the expenses of the proceedings and
alimony pending the suit as it may deem just.

   12. The object of the petition is very clear that it is made for granting
some relief to the petitioner/wife pending the main proceedings. Directing the
application claiming interim alimony to be tagged on with the main petition is
opposed to the object of Section 36 of the Act.

   13. The learned Judge has to dispose of the application filed by the
petitioner-wife, either this way or that way and he cannot tag on the
application seeking interim alimony along with the main proceedings.

   14. In the result, the Civil Revision Petition is allowed setting aside the
Order dated 27-7-2004 passed in I.A.No. 162 of 2001 in O.P.No. 790 of 2003, and
remanding the matter back to trial Court for fresh disposal. The learned
District Judge, Vizianagaram is directed to dispose of the I.A.No. 162 of 2001
in O.P.No. 790 of 2003 on merits.