1. The question raised here was whether the reputed wife, who had already obtained a decree in her favour in the Trial Court declaring her marriage as a nullity, on the ground of her husband's physical impotency, could maintain an application in the Appellate Court against the husband appellant for interim maintenance, pending the hearing of the appeal.
2. The facts shortly are:--
The marriage between the parties was solemnised according to Hindu rites on January 26, 1961. The wife was then 19 years of age, a student in the 3rd year B. A. Class of Victoria College, Calcutta, now she is a graduate of the University of Calcutta The husband then aged 27 was a D. Phil of the said University a lecturer of Botany in the Bangabasi College, Calcutta at present he is a research assistant in the department of Anatomy. Mac Gill University, Montreal, Canada, drawing annually 7000 Canadian dollars, equivalent to more than Rs. 48,000 after current devaluation.
3. The wife petitioner alleged, and it was so found by the Trial Court, that the husband had been physically impotent from before the marriage and that it had continued till the date of the application. The marriage could not be consummated since its inception.
4. On July 31, 1965, the wife filed the application in the Court of the District Judge of 24 Parganas, under the provision of Section 12 of the Hindu Marriage Act, 1955 (hereinafter referred to as the Act) fo, annulment of her marriage. Her application under Section 24 of the Act for alimony pendente lite followed soon. The husband who is still at Canada, did contest, neither the suit nor the application under Section 24 of the Act On May 28. 1966, the wife obtained the decree annulling her marriage. A sum of Rs. 500 per month was granted in her favour as alimony pendente lite and a further sum of Rs. 500 towards the cost of litigation. On August 8, 1966 the connected first appeal had been filed by the husband.
5. Meantime on June 11, 1966 the wife filed an application before the Trial Court for grant of a permanent alimony under the provision of Section 25 of the Act claiming one thousand rupees per month or a gross sum of Rs. 50,000 The said application is pending decision.
6. An application was moved on behalf of the husband in the connected appeal, giving rise to the above Civil Rule on September 9, 1966 calling upon the wife to show cause why the operation of the judgment and decree appealed against, and further proceedings in the suit regarding permanent alimony should not be stayed pending the hearing of the appeal. The wife respondent opposed the Rule by filing an affidavit-in-opposition. She filed the instant independent application on June, 12, 1967 in the connected appeal for the grant of a sum of Rs. 750 as monthly maintenance and a certain sum for meeting the expenses of the proceeding. It was streneously opposed by the learned Advocate Mr. S. C. Das Gupta, appearing for the husband who challenged the maintainability, of such an application, after denying the allegation of impotency. It was inter alia stated on behalf of the husband, by an affidavit sworn to by the husband's father, possibly thinking it to be relevant on the question of quantum of maintenance, that the wife's father 'has no academic, cultural, professional or financial distinction
He is but a person of ordinary means and position in life, owner of no house of his own, no owner of any motor car, not any traveller by air' It was further sworn to by the husband's father, to my mind crudely, that the husband felt extremely exhasperated by the wife's exceptionally unusual sex-appetite Her extravagant sex desire provoked suspicion about the wife's virginity and she became intolerable which compelled the husband to avoid her. According to him, a sum of Rs. 75 per month would be more than enough for the maintenance of the wife. The wife reiterated the statement made in her application and replied back, inter alia stating, to my mind curiously, that her father was using the motor car provided by his employer and that he mostly travels by air.
7. Both the Rule and the application were heard together. The learned Advocate Mr. Bijan Behari Das Gupta for the wife, and Mr. S. C Das Gupta for the husband, were heard at length Several provisions of the Act and specially Sections 24, 25 and 28 were placed. It was inter alia submitted that after the decree, the applicant lost the status of the wife.
8. The following Indian decisions namely, Nagle v. Nagle, AIR 1933 Lah 5, Ramesh v. Kusum, AIR 1949 Bom 1. Sivakami Ammal v. Bangaruswami Reddy : AIR1954Mad1039 , Annapurnamma v. Rama Krishna Sastry : AIR1959AP49 . Mukan Konwar v. Ajit Chand , Sm. Anita Karmokar v. Birendra Chandra Karmokar : AIR1962Cal88 , W. E. Hardinge v. H. E. Hardinge, (1911) 11 Ind Cas 813 (LB), Smt. Chandra Mohini Srivastava v. Avinash Prasad Srivastava, AIR 1967 SC 581, and Mulla's Commentary on the Act were noticed. The following English decisions namely, TAYlor v. Taylor, (1842) 6 Jur 633 (PC), Jones v. Jones, (1872) LR 2 P & D 333, Eilis v. Ellis, (1883) 8 P. D. 188 C. A., Dunn v. Dunn, (1888) 13 P. D. 91 (C. A.)=57 LJ P 58, Butler v. Butler, (1889) 15 PD 13, Bevis v. Bevis (1935) 152 LT 120, Cavendish Bentinck v. Cavendish Bentinck, (1949) P. 203 = (1948) 2 All ER 285, Strachan v. Strachan, 1965-2 All ER 77 and Articles 743 and 942 of Halsbury's Laws of England Vol. 12 (3rd Edition) as well as the comments at page 127 of Tolstoy's Law of Divorce (4th Edition), were not overlooked.
9. Upon setting together of the following reasons and all the facts of the situation and in whatever way the problem is, approached, the answer to the question must be in the affirmative. Firstly, in the words of the relevant sections of the Act, there is not only no bar of the maintainability of such an application but there are sufficient indications in support of it. Secondly, in the interest of broad justice between the parties, the Court has a discretion to continue the payment of the maintenance, during the pendency of the cause in appeal, when the appeal does not appear to be a vexatious one. Thirdly, the cause becomes pending, as the husband appellant does not only not obey the decree of the Court below but seeks to stay the operation of the judgment and decree appealed against, as well as of ail further proceedings for permanent alimony in the Court below. Fourthly the relief in the nature of alimony is really a relief which is incidental to the passing of the decree. Fifthly, for the present purpose a decree for nullity stands on the same footing as a decree for dissolution of marriage Sixthly and lastly, the respondent does not become a maiden or another man's wife, so long the appeal remains pending.
10. Accordingly the existing order passed by the Court below granting alimony pendente lite namely a sum of Rs. 300 per month, being a reasonable one should be continued to be paid by the husband appellant, pending the hearing of the appeal subject to its final decision. The petitioner would also get a sum of Rs 500 from the appellant toward the litigation expenses in the appeal.
11. The Rule is made absolute subject to this that the operation of the decree of the trial court directing payment of pendente lite alimony as also the direction for costs shall not be stayed.
12. There would be no order for costs in both the Rule and the application.
A.C. Sen, J.
13. I agree.