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Jagmohan Verma Vs. Sunita Verma - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtDelhi High Court
Decided On
Case NumberCivil Revision Appeal No. 718 of 1988
Judge
Reported in1983(4)DRJ144; 1983RLR140
ActsHindu Marriage Act, 1955 - Sections 24
AppellantJagmohan Verma
RespondentSunita Verma
Advocates: R.L. Tandon,; R.K. Makhija and; Alok Kumar, Advs
Cases ReferredIn Dayal Singh v. Bhajan Kaur
Excerpt:
.....or validity of the marriage is denied, the court has power to award maintenance and litigation expenses to the applicant sponse after prima facie determining whether there was marriage or not. - - he pleads that she is a rich lady possessing lot of immoveable property at punc. kamlesh asthana air1974all110 it has been held that the grant of relief under section 24 of the act is not dependent either on the merits or demerits of the petitioner or on the decision of a particular issue or upon the ultimate success or failure of the petition, and that it is the duty of the affluent spouse to maintain the indigent spouse and this duty is not affected by the pleas in the petition even to the jurisdiction of the court. the verification in this affidavit shows that the..........filed an application under section 24 the act claiming maintenance at rs. 800.00 per month and litigation expenses amounting to rs. 3000.00 alleging that she was not possessed of any moveable or immoveable property and that she had no source of income sufficient for her support and expenses for legal proceedings, that the petitioner was a high ranking officer in the indian navy getting salary of rs. 2600.00 per month.(3) the petitioner in his written-statement and reply to the application for maintenance denied the factum of marriage but admitted that he came in contact with the respondent in november 1976, that they were on friendly terms but there was no marriage. he deined that the marriage was performed between the parties on 19th march, 1978 at punc. he pleads that she is a rich.....
Judgment:

Sultan Singh, J.

(1) -THIS Civil Revision under section 115 of the Code of Civil Procedure challenges the judgment and order dated 15th May, 1982 of the Additional District Judge Delhi directing the petitioner to pay a sum of Rs. 700.00 as litigation expenses and Rs. 400.00 per month as pendentelite maintenance with effect from 16th March, 1982 to the respondent.

(2) SMT.SUNITA Jagmohan Verma, the respondent on 20th February, 1982 filed a petition under section 9 of the Hindu Marriage Act, 1955 (hereinafter called 'the Act') against the petitioner. She alleges that a marriage was solemnised between the parties on 19th March, 1978 at Pune. She filed her affidavit dated 20th February, 1982 in support of the said marriage. She further pleads that both the parties on 22nd March, 1978 left for Kashmir for haney-moon, cohabited and consummated the marriage, that after return they lived together and cohabited at Bombay for some time and after exhausting his leave the petitioner returned to Cochin where he was posted, that she used to visit her husband off and on in Cochin, where they cohabited and lived together, that the petitioner was transferred to Bombay in May 1979 where they lived up to the end of July 1981, that during this period up to the end of July 1981, that during this period she conceived twice from him in December 1978 and June 1980 and both these pregnancies wkere terminated as desired by the petitioner, that he was transferred to Delhi in August 1981 in Naval Headquarters, New Delhi and started living with his father at 221, Laxmi Bai Nager, New Delhi, that he had been telling her that they would take another house on rent and then both would live together, that the petitioner neither rented any house nor took her to his father's house because he had not disclosed the marriage to his father, that he withdrew from her society without any reasonable cause. The respondent on 16th March, 1982 filed an application under section 24 the Act claiming maintenance at Rs. 800.00 per month and litigation expenses amounting to Rs. 3000.00 alleging that she was not possessed of any moveable or immoveable property and that she had no source of income sufficient for her support and expenses for legal proceedings, that the petitioner was a high ranking officer in the Indian Navy getting salary of Rs. 2600.00 per month.

(3) The petitioner in his written-statement and reply to the application for maintenance denied the factum of marriage but admitted that he came in contact with the respondent in November 1976, that they were on friendly terms but there was no marriage. He deined that the marriage was performed between the parties on 19th March, 1978 at Punc. He pleads that she is a rich lady possessing lot of immoveable property at Punc. It has been denied that the respondent has no income for support and expenses of the proceedings. The trial Court held that prima facie marriage was solemnised between the parties on 19th March, 1978, that the respondent had no independent income to support her and to meet the expenses of the proceedings.

(4) The learned counsel for the petitioner submits that there was never any marriage between the parties and till the relationship of husband and wife is determined by the Court, no order for maintenance or litigation expenses could be passed by the Court exercising jurisdiction under section 24 of the Act. Section 24 of the Act reads as under :

'WHEREin any proceeding under this 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 proceedings, and monthly during the proceedings 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.

(5) Under this section if the husband or the wife has no independent income sufficient for her or his support and expenses for the proceedings, power is conferred upon the Court to fix the amount of maintenance and litigation expenses considering the income of the applicant and the nonapplicant. The condition,for passing such an order under section 24 of the Act is that the applicant has no independent source of income sufficient for support and expenses. An application under this section may be made in any proceedings under the Act. In the instant case the main proceeding, is under section 9 of the Act for restitution of conjugal rights by the wife The object of this section is that neither party may suffer by her or his inability to conduct the proceedings for want of money for expenses. The real object of the maintenance is to support the party without means during pendency of proceedings. Exercise of power under this section does not appear to be dependent on the defense raised by the opposite party. Even in cases where the factum of marriage is denied by the opposite parly the Court has jurisdiction to determine prima facie the factum of marriage on the basis of documents and affidavits that may be placed before the Court. The passing of an order under this section further cannot be postponed till the final determination of the relationship of husband and wife. If it be so the purpose of this section Would be frustrated. In a petition for restitution of conjugal rights if the defense taken is that there was no marriage between the parties, and the petitioner-wife had no means to support her or to conduct the legal proceedings she would be without any remedy. In proceedings for restitution of conjugal rights the factum and validity of marriage is generally denied so that the party approaching the Court for relief may be harassed and on account of harassment, such party may not pursue the remedy. I am thereforee, of the opinion that even if the factum or validity of the marriage is denied, the Court exercising jurisdiction under the Act has power to award maintenance and litigation expenses to the applicant i.e. the wife or the husband after prima fade determining whether there was marriage or not. The Court however has to be very careful and cautious in considering the affidavits, the documents and other material brought to its notice while determining the factum of marriage even prima facie, otherwise the provision is liable to be misused.

(6) In Mrs. Arti Singh v. Lt. Col. Kanwar Pal Singh, : AIR1977Delhi76 it has been held that postponing of orders on application under section 24 of the Act till the decision of the issue of the legality of marriage was material irregularity and even to fight out that issue the wife was entitled to a decision on her application under section 24 of the Act. In Surendra Kumar Asthana v. Smt. Kamlesh Asthana : AIR1974All110 it has been held that the grant of relief under section 24 of the Act is not dependent either on the merits or demerits of the petitioner or on the decision of a particular issue or upon the ultimate success or failure of the petition, and that it is the duty of the affluent spouse to maintain the indigent spouse and this duty is not affected by the pleas in the petition even to the jurisdiction of the Court. It has also been observed that the plea as to the jurisdiction of the Court in matrimonial case does not affect the power of the Court to allow alimony pendentelite. In Krishna Devi v.Karam Chand, 1978 Hlr 177, a proceeding under section 24 of the Act it has been observed that, 'the dispute in regard to the validity or legality of the marriage is not to be gone into such a petition and it is a matter which is to be considered in the main petition.' In Jai Singh v. Sml. Khimi and another 1979 Hlr 379 it has been observed that proceedings under section 24 of the Act have a limited purpose enabling the weaker party to substantiate his or her rights during the pendency of the proceedings and that none of the parties to a matrimonial cause should be able to take undue advantage of his financial superiority to defeat the rightful claims of the weaker party. In Dayal Singh v. Bhajan Kaur, , permanent alimony was granted to the wife under section 25 of the Act after her marriage was anulled on a petition under section 11 of the Act. Thus even if the marriage between a male or female has been declared invalid, maintenance was granted under section 25 of the Act.

(7) The trial Court in the instant case has considered the material on record to hold prima facie that the respondent is the wife of the petitioner. The parties were married on 19th March, 1978. The respondent became pregnant. There are letters on record written by the petitioner to the respondent. On 6th February, 1979 the petitioner issued the following certificate: 'Cochin-4 06 Feb. 79

(8) To whom so ever it may concern. I am fully aware of the fact that my wife Mrs. Sunita Verma is undergoing abortion and what ever is she doing is with my consent and approval. This is due to some problems as I will not be available to her for at least one year. We both have mutually agreed for this. sd/- Jagmohan Verma.'

(9) In this letter the respondent has been described by the petitioner as his wife and both had agreed for the termination of the pregnancy. It is admitted by the petitioner that he has been on friendly terms with the respondent since November 1976. They visited Kashmir and other places. Photographs have been placed on record to show their intimacy. The petitioner sent his Bio-Data to the respondent photostat of which has been placed on record by the respondent. Respondent as already stated filed an affidavit dated 10th Fabruary, 1982 deposing that a marriage was solemnised between 148 the parties on 19th March, 1978 at Pune. The petitioner-husband in reply to the application for maintenance filed his affidavit, which is not sworn to be true to his knowledge. The verification in this affidavit shows that the contents of the affidavit were true to the best of his knowledge. This is no verification in law within the meaning of Order 19 of the Code of Civil Procedure. In reply the petitioner stated that they were never married and in the affidavit he has deposed that this fact was true to the best of his knowledge. In other words the petitioner did not deny the factum of marriage to his knowledge. Moreover the petitioner has not filed any material on records at this stage to rebut his certificate dated 6th February, 1979 wherein he admitted that respondent was his wife and that she was undergoing abortion with his consent and approval. I am also prima facie of the view that the parties arc related as husband and wife.

(10) The learned counsel for the petitioner next submits that even if on a prima facie view of the matter maintenance is granted to the respondent she should be directed to give security for restitution in case the fails to prove the factum of marriage. There is nothing on the record to hold that the respondent hag any independent source of income or is possessed of any moveable or immoveable property. The learned counsel for the respondent lubmits that she is not in a position to furnish any security for restitution of the amount of maintenance or litigation expenses.An order under section 24 of the Act is passed with a view to provide support to the weaker spouse to enable her to maintain and conduct the legal proceedings If she is not in a position even to furnish security, then it would mean that even if an order for payment is made she would not get the maintenance or the litigation expenses and the result would be that she would be deprived of conducting the proceedings under the Act and she would further be deprived of the amount required for her support. The learned counsel for the respondent also submits that there is no provision for furnishing security for restitution of the amount of maintenance or litigation expenses paid in pursuance of an order under section 24 of the Act. The learned counsel fur the petitioner however, submits that this Court in the exercise of inherent power can direct the respondent to furnish security. There is no doubt that this Court has inherent power to pass such orders as may be just and proper in the facts and circumstances of the particular case. However, I find that there is no justification under the facts of the present case to direct the respondent to furnish any security.

(11) No dispute has been raised about the quantum of monthly maintenance and the litigation expenses. I, thereforee, do not find any infirmity in the judgment and order of the trial Court. The revision petition is there fore, dismissed wilh no order as to costs.

(12) The petitioner-husband is directed to pay the litigation expenses and the maintenance within one month from today to the respondent. If any amount has been deposited by the petitioner in the trial Court, the same may be paid to her to enable her to conduct the proceedings and maintain herself. The parties are directed to appear before the trial Court on 13th December, 1982.


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