ORDER
D.M. Dharmadhikari, J.
1. In this revision under Section 115 of the Code of Civil Procedure, the wife raises an important legal question as to whether she can be denied maintenance pendenate lite under Section 24 of the Hindu Marriage Act, 1955 (in short ‘the Act’) only on the ground that her” marriage with her husband is the second marriage during the subsistance of the first marriage and the same is void under Section 11 read with Section 5(i) of the Act.
2. A few facts may “be stated before deciding the legal question arising for decision in the case. The wife/applicant filed proceedings in the matrimonial Court for restitution of conjugal rights under Section 9 of the
Act and during the pendency of those proceedings made an application for payment of maintenance pendente lite at the rate of Rs.400/- per month as also a lump sum amount of Rs. 400/- as litigation charges. In the course of enquiry on the question of liability of the husband to pay interim maintenance, the wife stated orally in the witness box that she was married to the non-applicant/husband about 6-7 years back and has an issue from him. She also stated that her husband owns about 100-150 acres of land and has substantial means of earning. The husband/ non-applicant opposed the application for interim maintenance denying the relationship with the applicant/wife. He examined one Rambai (N. A. W. 2) who stated that they were married 15-16 years ago and had a female issue by named Amita Bai.
3. On the basis of above evidence led by the parties the matrimonial Court came to the conclusion that she was the second wife of the husband during the subsistance of her first marriage with Rambai and, therefore, the second marriage was void under Section 11 read with Section 5(i) of the Act. According to the trial Court, the present applicant being the second wife under a void marriage is not entitled to any interim maintenance under Section 24 of the Act. The matrimonial Court also held that the wife did not file any revenue records to prove that the husband possessed 100 to 150 acres of land and there was, thus, also no proof that he had means to maintain the wife. The trial Court in rejecting the claim of the wife for interim maintenance referred to a decision in Smt. Rajeshbai v. Smt. Shantabai, AIR 1982 Bom 231 to hold that under the provisions of Section 24 of the Act only a legally wedded wife is entitled to claim interim maintenance.
4. Learned counsel appearing for the applicant/wife, contended before me that the matrimonial Court clearly erred in deciding on the merits of the case in refusing interim maintenance. It was pointed out to me that only the question required to be decided in the case was the factum or validity of marriage between the parties and the said question was not relevant for granting or denying interim maintenance to the wife during the pendency
of the proceedings. On behalf of the wife it was submitted that for award on interim maintenance the Court is not required to decide the merits of the case even in a summary way and the scope of enquiry should be restricted to decide want of independent income to the applicant and the availability of means of income to the respondent for the purpose of fixing quantum of maintenance.
5. Learned counsel appearing for the husband, on the other hand, submitted that the expression ‘wife’ or ‘husband’ used in Section 24 of the act should reasonably be construed to mean legally wedded wife or husband. According to him, a wife under a second marriage which is void under the provisions of the Act has no right to claim maintenance. It was also contended on behalf of the husband it was proper on the part of the Court to hold a summary enquiry into the validity of marriage between the parties before granting or refusing maintenance. Any other interpretation according to the counsel would open flood gates to unscrupulous parties to approach the matrimonial Court on a false or made up case of a marriage against another party only to get orders of maintenance. Learned counsel for the husband, therefore, contended that in exercising powers for refusing or granting maintenance under Section 24 of the Act it is incumbent on the Court even to decide the merits of the case in a summary way and also examine the question of factum of the marriage between the parties.
6. Before deciding the legal question arising before me in this case as to whether a wife under a void marriage can also claim maintenance or not in pending proceedings before the matrimonial Court, it would be helpful to refer to a few relevant provisions of the Act. The expressions ‘wife’ and ‘husband’ have been defined in the definition clause contained in Section 2 of the Act. Section 5 of the Act lays down the conditions of a valid Hindu. marriage and one of the conditions is that it should be a marriage between two Hindus where neither party has a spouse living at the time of marriage. Under Section 9 of the Act
parties to the marriage may obtain decree for restitution of conjugal rights from the Court. Section 11 of the Act permits a party to approach the Court for a decree of nullity if the marriage contravenes any of the conditions specified in Section 5 including Clause (i) thereof where one of the parties had a spouse living at the time of marriage. Section 13 of the Act contains ground on the basis of which a divorce can be obtained. Under Section 16 of the Act children of void and voidable marriage are deemed to be legitimate. Section 17 of the Act makes a bigamous marriage punishable in accordance with Sections 494 and 495 of the Indian Penal Code. Under Section 23(2) of the Act the matrimonial Court at the first instance is required in every case to make a endeavour to bring about reconciliation between the parties.
7. Under Section 23A of the Act in a proceeding instituted by one spouse, the other spouse as respondent can claim any of the reliefs available to him under the Act. Section 23A of the Act may be quoted :
“23 A. Relief for respondent in divorce and other proceedings: In any proceeding for divorce or judicial separation or restitution of conjugal rights, the respondent may not only oppose the relief sought on the ground of petitioner’s adultery, cruelty or desertion, but also make a counter-claim for any relief under this Act on that ground; and if the petitioner’s adultery, cruelty or desertion is proved, the Court may give tb the respondent any relief under this Act to which he or she would have been entitled if he or she had presented any petition seeking such relief on that ground.
Under._S. 24 of the Act the Court can fix interim maintenance for payment to the one spouse by the other where one of them is unable to maintain him or her and the other has means to do so. Section 24 uses the expression ‘wife or the husband1 as also the ‘petitioner and the respondent’. The provisions contained in Section 24 which needs construction in the context of the case is also quoted:–
“24. Maintenance pendente lite and expenses of proceedings.– Where in 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 proceeding, and monthly during the proceeding 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.”
The provision contained in Section 25 of the Act empowering the Court to grant permanent alimony to either of the parties at the time of passing of the decree is also relevant and is also quoted:–
“25. Permanent alimony and maintenance.– (1) Any Court exercising jurisdiction under this Act may, at the time of passing any decree or at any time subsequent thereto, on application made to it for the purpose by either the wife or the husband, as the case may be, order that the respondent shall, pay to the applicant for her or his maintenance and support such gross sum or such monthly or periodical sum for a term not exceeding the life of the applicant as, having regard to the respondent’s own income and other property of the applicant the conduct of the parties and other circumstances of the case it may seem to the Court to be just, and any such payment may be secured, if necessary, by a charge on the immovable property of the respondent.”
Under Section 26 of the Act the Court has power to pass suitable orders for custody, maintenance and education of children. Under Section 27 of the Act the Court has power to pass orders in respect of the property presented at the time of marriage.
8. From the entire scheme of the Act, as examined by me, from the provisions mentioned above, I find that it is a piece of social welfare legislation regulating the marital relations of Hindu consistently with their customary law i.e. Hindu law. The object behind Section 24 of the Act providing for maintenance pendente lite to a party in matrimonial proceedings is obviously to provide financial assistance to the indigent spouse to maintain herself or himself during
the pendency of the. proceedings and also to have sufficient funds to carry on the litigation so that the spouse does not unduly suffer in the conduct of the case for want of funds. The expressions ‘husband and wife’ used in Section 24 of the Act have, therefore, to be construed in the context in which that expression is used for granting and fixing maintenance pendente lite and keeping in view the aims and object of the case. It may be seen from the above provisions of the Act that even in a case of bigamous marriage one of the parties can seek a decree of nullity of marriage by way of a petitioner or respondent which is permissible under Section 23A of the Act. It may also be seen that in pending proceedings even at the instance of a second wife in a void bigamous marriage the Court is empowered to make attempt for reconciliation, to pass necessary orders with regard to the custody of children and a disposal of property exchanged at the time of marriage. The Court has also power in such proceedings to make an order of permanent alimony or maintenance under Section 25 of the Act. The Court is empowered under Section 25 of the Act to pass an order of permanent alimony in favour of a wife although her petition for restitution of conjugal rights may fail on the ground that it was a prohibited bigamous marriage in Hindu law. The Act thus confers wide powers on the matrimonial Court so as to regulate the matrimonial relationship between the parties and such powers are to be exercised by the Court even in a case of alleged or proved invalid bigamous marriage. It is for the purpose of exercise of those powers by the Court that the Court has been further empowered to fix some interim maintenance to one of the needy spouse so as to sustain herself/himself during the pendency of the proceedings in the Court and to meet the expenses of the litigation. It is with this benevolent object to assist the parties and the Court for passing adequate reliefs under the Act that Section 24 has been enacted providing for maintenance pendente lite. Keeping in view the aims and object of the Act and the wide powers conferred on the matrimonial Court in that respect, I am of the view that the expression “wife and husband” used in Section 24 have not to be given strict literal
meaning as to convey only legally married wife and husband. According to me, the expression ‘wife and husband’ in the context of the section and scheme of the Act should mean a ‘person claiming to be a wife or husband.’
9. I am aware of the danger which is involved in putting such an interpretation on the expression ‘wife and husband’ for the purpose of interim maintenance under Section 24 as it was pointed out on behalf of the counsel for the husband that the provision so construed would give opportunities to clever parties to come up with false cases in the matrimonial Court alleging false marital relationship only with a purpose to get interim maintenance. I, however, do not think that merely because such a mischief is possible any other interpretation can be placed on the words ‘wife and husband’ used in Section 24 of the Act. I agree with the submission of the learned counsel for the husband that proceedings under Section 24 of the Act contemplate summary enquiry by the Court which will include going into the merits of the case. I am not prepared to accept the submission made by the learned counsel for the wife that where the only contention between the parties is about the factum or validity of marriage, the Court cannot go into that question even in a summary way for the purpose of fixing interim maintenance under Section 24 of the Act. In my considered view when an application for maintenance pendente Hte under Section 24 of the Act is made, it is the duty of the matrimonial Court to hold a summary enquiry to determine prima facie the merits of the case as also the question of means of the parties for maintenance. The scope of enquiry under Section 24 of the Act can be” compared with the scope of enquiry in a civil matter where some interim relief in the nature of temporary injunction or appointment of receiver is claimed by one ofthe parties. At the first stage when an interim relief is claimed by the party in a suit or action in a Court of law, the Court is required to examine prima facie the case of the parties and the necessity of granting interim relief. The scope of enquiry under Section 24 ofthe Act is not as wide as the fulfledged trial of the suit or proceedings but would be certainly an enquiry based on oral evidence or
affidavits of the parties sufficient enough to decide the question of grant of interim relief.
10. In the present case, it cannot be said that the wife had no prima facie case for grant of relief by the matrimonial Court under provisions of the Act. The matrimonial Court held that her marriage with the present respondent was a second marriage and there was an issue from the second marriage. Assuming that after leading of the evidence by the parties, it is finally held that her second marriage with the respondent was a nullity under Section 11 of the Act, even then she cannot be denied an alternative relief of declaration of that effect and grant of permanent alimony under Section 25 of the Act for her maintenance. There can also be some direction by the Court regarding custody of the child. There can also be an attempt through the Court of reconciliation between the parties. These are some of the reliefs which can be granted by the matrimonial Court at the time of passing decree in the case, in favour or against the petitioner.
11. For the view that I have taken in construing the provisions of Section 24 of the Act I find some assistance from the decision of Punjab and Haryana High Court in Dayal Singh v. Bhajan Kaur, AIR 1973 Pun & Har 44, two decisions of the Bombay High Court in Govind Ranoji Musale v. Sou: Anandibai, AIR 1976 Bom 433, in Smt. Rajeshbai v. Smt. Shantabai, AIR 1982 Bom 231 and Gopala Krishnan Nair v. Thembatty Ramani, AIR 1989 Ker 331. It is true that all the above decisions were relating to interpretation and construction of the provisions contained in Section 25 of the Act regarding grant of permanent alimony but they do throw some light on the interpretation of Section 24 and the whole scheme of the Act as such. In Dayal Singh’s case (supra) it was commented as under:–
“The Act has not been very carefully drafted and the language of Section 25 has to be liberally construed. Even if the marriage was void ispojure as the lady had been made to go through a mock marriage and to lose her maidenhood under the belief brought out by false pretences that she was a lawfully wedded wife she should be treated as a wife for the purpose of making an application under Section 25.”
In Bombay case of the year 1976 i.e. Govind Ranoji Musale’s case, AIR 1976 Bom 433 (supra) in para. The learned single Judge construed the Section 25 of the Act in the following manner (at pp. 437-438 of AIR) :–
“In the present case, it could not possibly have been the intention of the legislature that even in a case where a Hindu woman had been used into contracting a bigamous marriage with a man without knowing that there was already a subsisting marriage to which he was a party, even though, she should be deprived of her right to claim maintenance on obtaining a decree for nullity. If the construction propounded by Mr. Pendse were to be accepted, this result would necessarily follow, becasue whether the woman knew that the marriage she was entering into was bigamous or not, it would still be equally void. Lastly, one cannot lose sight of the fact that if the words ‘wife’ or ‘husband’ used in Sub-section (1) of Section 25 were to be construed in their strict grammatical sense, then they would refer only to parties to a subsisting marriage. A woman who has obtained a decree for dissolution of her marriage cannot, strictly speaking, be described as a wife. Similarly, a husband who has obtained a decree for divorce cannot be described as a husband. A Hindu male and a Hindu female who have entered into a marriage which is voidable and which has been annulled by a decree of nullity under Section 12 of the Hindu Marriage Act also cannot strictly be described as a husband and wife. Mr. Pendse had to concede that in case of divorced persons and persons who have obtained decree of annulment of marriage, they would be included within the scope of the words ‘wife’ and ‘husband’ used in Sub-section (I) of Section 25 of the Act. This makes it clear that these words have not been used in this subsection in their strict grammatical sense. This only shows that the said section has been a little carelessly drafted and if this be so, it needs a liberal interpretation. If the words ‘wife’ and ‘husband’ used in Sub-section (1) of Section 25 have to be construed liberally so as to include a divorced wife or a divorced husband or those who have obtained a decree of annulment of a voidable marriage, I see no reason why these words should not be
interpreted so as to include a man and a woman who have gone through a ceremony of a Hindu marriage which would have been valid but for the provisions of Section 11 read with Clauses (i), (iv) and (v) of Section 5 of the Hindu Marriage Act. In other words, in my view, the words ‘wife’ and ‘husband’ used in Sub-section (1) of Section 25 of the Act would include within their scope a woman and a man professing the Hindu faith who have gone through a ceremony of marriage which would, in law, have conferred the status of a wife or husband on them but for the provisions of Section 11 read with Clauses (i), (iv) and (v) of Section 5 of the Act.”
11A. The trial Court had referred in its judgment to the Smt. Rajeshbai’s case (AIR 1982 Bom 231) (supra) which itself refers and relies on the Govind Ranoji Musale’s case (AIR 1976 Bom 433) (supra). It appears that the trial Court did not properly deduce the ratio of the two Bombay cases and cited the ruling in favour of the husband. In the Rajesh Bai’s case ‘ (supra) it was commented by the learned single Judge as under (at p. 239 of AIR) :–
“There are two decisions, one under the provisions of Madras Hindu Bigamy Prevention and Divorce Act and the other under the provisions of the Hindu Marriage Act. In the case of Sivakami Animal v. Bangaruswami Reddi, AIR 1954 Mad 1039, the Court found that the word ‘wife’ in Section 5(7) would mean a person who would have been the wife but for the decree of divorce or dissolution passed in the trial Court. In the case of Govindrao v. Anandibai, AIR 1976 Bom 433, the learned single Judge of this Court upheld the claim of a wife, whose marriage was declared null and void by making a decree of nullity, for the maintenance under Section 25 of the Hindu Marriage Act. There, the marriage was found void de jure and consequent decree followed under Section 11 of the Act. The learned Judge found that Section 25 of the Act not only provides for a remedy but also confers a right upon such “a wife” and refused to give literal meaning to the word ‘wife’ or ‘husband’ used by that section. In this view:–
“The words ‘wife’ and ‘husband’ used in Sub-section (1) of Section 25 of the Act would include
within their scope a woman and a man professing the Hindu faith who have gone through a ceremony of marriage which would, in law, have conferred the status of a wife or husband on them but for the provisions of Section 11 read with Clauses (i), (iv) and (v) of Section 5 of the Act.”
I am, therefore, supported in my view by the above decisions that the expression ‘wife’ or the ‘husband’used in Section 24 of the Act have not to be literally construed but has to be liberally construed to mean “‘petitioner’ or ‘respondent’ claiming to be wife or husband in a pending matrimonial cause”. Construing the expression thus would fulfil the intent of the provisions and aims and objects of the Act to provide some interim subsistence to a needy spouse unable to maintain herself or himself to effectively take part in the pending proceedings before the Court of law. J, therefore, hold that the wife in the present case was not disentitled from claiming maintenance pen-dente lite under Section 24 of the Act even on a prima facie case having been found in favour of the husband that her marriage was bigamous and liable to be declared void under under Section 11 read with Section 5(i) of the Act.
12. On the quantum of maintenance to be awarded to the wife/applicant is concerned, the parties have led evidence. The Court has refused to grant maintenance to the wife mainly on the ground that her marriage was bigamous and void in law. On the quantum of maintenance the Court merely observed that the wife had not produced by revenue records in proof of the fact that he owned 100-150 acres of agricultural land. I am of the view that where a husband had married twice with no indication of having no means to maintain himself or his dependents, and if he is able bodied it is his legal obligation to maintain even his second wife from whom he has also an issue and that issue cannot be termed as illegitimate by virtue of the provisions contained in-S. 16 of the Act. I do not think that the Court was right in rejecting the claim of the wife/applicant on the question of means of the husband to pay the maintenance only on the ground that revenue records were not
produced. I, therefore, hold that the husband had sufficient means to maintain his family including the second wife and his child from the second wife.
13. Keeping in view that Section 125 of the Cr.P.C. fixes Rs. 500/- as the maximum amount of maintenance which can be awarded to a spouse or dependent and also keeping in view the present standard of living and ever rising prices of essential commodities even in rural areas I consider that a sum of Rs. 200/-per month is not a very high amount of maintenance which must be paid to the wife by the husband so that she may maintain herself. This amount is fixed with due consideration of the fact that the husband may be maintaining her first wife and the children from the first wife as also his liability of maintenance of his child from the second wife.
14. In view of the fact that the wife is entitled to interim maintenance, as held by me above, the wife is also entitled to litigation expenses for conducting the proceedings in the Court and the husband shall also pay to the wife a sum of Rs. 400/- as litigation charges which also do not appear to be very excessive keeping in view the nature of expenses required in a Court of law in India for payment of Court-fees, for payment of remuneration to the counsel and for other journey and expense for witnesses etc.
15. Consequently, the revision is allowed and the order of the trial Court dated 23-1-1986 impugned in revision is hereby set aside with grant of interim maintenance under Section 24 of the Act at the rate of Rs. 200/- per month to the wife from the date of this order and the sum of Rs. 400/- being payable as litigation charges. In the circumstances of the case I, however, leave the parties to bear their own costs of this revision.